Tuesday, August 14, 2018

Nebraska completes its first ever lethal injection, which is first US execution to include use of the opioid fentanyl

The lengthy local article, headlined "'A monumental day'; Nebraska executes Carey Dean Moore in state's first lethal injection," reports on a milestone capital punishment even in the heartland today. Here are a few details:

Nebraska carried out its first execution in 21 years on Tuesday, using four drugs to end the life of double murderer Carey Dean Moore.

Moore, 60, became the first condemned inmate in the state put to death by lethal injection. He had served 38 years on death row for the 1979 killings of Omaha cabdrivers Reuel Van Ness and Maynard Helgeland. Helgeland and Van Ness were shot five days apart as Moore targeted cabdrivers because he knew they carried cash. Both men were 47 years old, fathers and military veterans.

Corrections Director Scott Frakes said the first of four execution drugs was administered at 10:24 a.m. The Lancaster County coroner declared Moore dead at 10:47 a.m. Frakes said the execution was carried it out with "professionalism, respect for the process and dignity for all involved."

The scene outside the Nebraska State Penitentiary, where the execution occurred, was subdued on Tuesday morning amid on-and-off rain showers. Only about a dozen death penalty opponents prayed outside the prison; only three capital punishment proponents attended. Many more state troopers and media members stood nearby.

Gov. Pete Ricketts, who helped lead an effort to overturn a 2015 repeal of the death penalty by the Nebraska Legislature, spent the morning in a meeting with state agency officials. “Today, the Nebraska Department of Correctional Services carried out the sentence the court ordered in accordance with the will of the people of Nebraska," Ricketts said in a prepared statement. "The death penalty remains a critical tool to protect law enforcement, corrections officers and public safety.”

Outside the governor's mansion in Lincoln just after the execution, a handful of protesters stood in the rain, one carrying a sign reading "Ricketts has blood on his hands.”

Among the death penalty supporters who came to the prison were Vivian Tuttle, whose daughter was slain inside a Norfolk bank in 2002. "I'm here to support the victims," Tuttle said. "That's the ones I have to stand for." Standing with her was Pierce County Sheriff Rick Eberhardt, who, along with Tuttle, collected hundreds of signatures to allow voters to restore the death penalty in 2016.

​Tuttle's daughter, Evonne Tuttle, was one of five people killed in a bank robbery in Norfolk on Sept. 26, 2002. Evonne Tuttle, a single mother, went to the bank in Norfolk to cash a $64 check. Three gunmen from the robbery, Jose Sandoval, Jorge Galindo and Erick Vela, all are on death row. "I think it's important that we have voices that still say it's important that we stand for the death penalty. And for the families of victims," Tuttle said.

Moore — who had served the longest time on Nebraska's death row — was led to the execution chamber at 10 a.m. After he was strapped to the execution table, he mouthed the words "I love you" multiple times toward his official witnesses, which included a brother and a niece.

His final words were delivered in a handwritten statement: He hoped that lawyers could get his younger brother, Donald, released from parole, and urged death penalty opponents to pursue claims of innocence by four others on Nebraska's death row....

The four official media witnesses to the execution said that Moore's face gradually turned slightly red, then purple, as the four drugs were administered. The execution was the first using the four drugs obtained by Nebraska, over legal objections by death penalty opponents and some drug manufacturers. The curtain to the execution chamber was lowered at 10:39 a.m. after the fourth drug was administered. The curtains reopened eight minutes later after he was pronounced dead....

Duggan called the execution "a monumental day" after the many debates in the state over capital punishment. The death penalty was restored by voters in 2016 by a 61-39 percent margin after a petition drive, in large part funded by Ricketts, placed the issue on the ballot. "There's no question it's a significant day in the state's history," the reporter said.

In a statement, Nebraska Attorney General Doug Peterson said, "Our sympathy is extended to the families of Reuel Van Ness and Maynard Helgeland for the loss of their loved ones nearly thirty-nine years ago. Today's somber event serves to provide a measure of closure for what has been a lengthy enactment of justice."

Nebraska has now carried out 38 state-sanctioned executions. Moore was put to death using a previously untried four-drug combination of diazepam, fentanyl, cisatracurium and potassium chloride.

He is the first inmate executed using the drug fentanyl, a powerful narcotic painkiller that has contributed to the nation's epidemic of drug overdoses. He was put to death despite two federal lawsuits filed last week by drug companies seeking to keep their products from being used. The state's last execution before Tuesday took place in 1997, when the electric chair was the method. Lethal injection was adopted in 2009 after the state Supreme Court outlawed electrocution as cruel and unusual punishment.

August 14, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

High-profile drug arrest of billionaire addict spotlights issues of what is "trafficking" and who is a "victim" and "recidivist"

A high-profile drug arrest in Las Vegas late last week presents a high-profile setting to explore all of the legal uncertainty that necessarily surrounds the modern drug war.  This CBS/AP story, headlined "Tech billionaire Henry Nicholas facing drug trafficking counts in Vegas," provides some of the basics:

Tech billionaire and advocate of crime victims Henry T. Nicholas III is facing drug counts after being arrested along with a woman Tuesday at a Las Vegas Strip casino-resort. Nicholas was arrested on suspicion of trafficking heroin, cocaine, meth and ecstasy, Las Vegas police officer Larry Hadfield said Thursday. He added police responded to the casino-resort following a report from security, which had found contraband in a room [this local piece provides more details of the search and seizures]....

The woman arrested with Nicholas was identified as Ashley Fargo, reportedly the ex-wife of an heir to the Wells Fargo fortune. Hadfield said she faces the same counts as Nicholas. Court records show she has also been released on her own recognizance. Records for the pair show a court hearing scheduled for September.

Attorney and legal analyst Alex Kazarian tells CBS Los Angeles it's likely Nicholas didn't intend to traffic drugs -- but his intent may not matter. "It sounds like his biggest crime is being an addict," Kazarian said. "He's a billionaire. He's not a person that's trying to make money off of drugs. He's a person that's trying to make friends off of drugs. Unfortunateley, the way the laws are written, if you're giving away drugs or if you're selling drugs, you're trafficking."

Nicholas co-founded high-tech chipmaker Broadcom Corp. in 1991 and resigned as president and CEO in 2003. In 2008, he was indicted on narcotics and securities fraud charges. The charges in the securities case were dismissed in 2009 and the narcotics case in 2010.

The billionaire is an advocate for crime victims and has bankrolled ballot measures in the U.S. to guarantee them and their family members some rights. The so-called "Marsy's Law" victims' bill of rights is named after Nicholas' sister, Marsalee "Marsy" Nicholas, a California college student who was stalked and killed in 1983 by an ex-boyfriend.

Five states - California, Ohio, Illinois, North Dakota and South Dakota - have a Marsy's Law on their books.... In Nevada, Marsy's Law will appear on the ballot in November as a legislatively referred constitutional amendment, after the measure was approved during the 2015 and 2017 legislative sessions, as required by law. Nevada Attorney General Adam Laxalt, Clark County Sheriff Joe Lombardo and Clark County District Attorney Steve Wolfson have previously endorsed the measure.

As people who work in the drug policy and reform space know well, the dividing line between being a "drug possessor" and a "drug trafficker" can often be a thin one and this story seems to effectively highlight this reality. Moreover, given the extraordinary work that Nicholas has done to promote victim involvement in the criminal justice system, this case provides an interesting setting to explore who can and should be able to claim to be a victim of a "drug trafficker."  In addition, here are some more details about Nicholas's prior involvement with drug charges from this local piece:

In a 2008 federal indictment, Nicholas was accused of possessing and conspiring to distribute drugs, including ecstasy, cocaine and methamphetamine. According to federal court records, he was accused of distributing and using drugs on a private flight between Orange County and Las Vegas, “causing marijuana smoke and fumes to enter the cockpit and requiring the pilot flying the plane to put on an oxygen mask.”  The charges against him were dropped in 2010, court records show.

Because charges were drop in the prior case, Nicholas would not qualify as a repeat drug offender subject to recidivist sentencing enhancements. But I cannot help but wonder why and how prior federal drug distribution charges were dropped against him, while also thinking somebody else might get labelled a serious drug offender with this kind of history without Nicholas's legal good fortunes so far.

August 14, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Victims' Rights At Sentencing | Permalink | Comments (0)

Highlighting how many states have the death penalty in the books without an active execution chamber

John Gramlich at Pew Research Center has this new FactTank piece headlined "11 states that have the death penalty haven’t used it in more than a decade." Here are excerpts (with a few facts highlighted):

Tennessee carried out its first execution since 2009 this month and Nebraska soon may carry out its first since 1997.  The two states underscore the fact that while a majority of jurisdictions in the United States have capital punishment on the books, a considerably smaller number of them use it regularly.

Overall, 31 states, the federal government and the U.S. military authorize the death penalty, while 19 states and the District of Columbia do not, according to the Death Penalty Information Center, an information clearinghouse that has been critical of capital punishment.  But 11 of the states that allow executions — along with the federal government and the U.S. military — haven’t had one in at least a decade.

Nebraska, in fact, is among seven states that have the death penalty but haven’t carried out an execution in at least 15 years. New Hampshire hasn’t executed an inmate since 1939; the other states in this category are Kansas (last execution in 1965), Wyoming (1992), Colorado and Oregon (both 1997), and Pennsylvania (1999).  Executions have occurred somewhat more recently — though still more than a decade ago — in California, Montana, Nevada and North Carolina (all in 2006).

The last federal execution also took place more than 15 years ago, in March 2003.  While the U.S. military retains its own authority to carry out executions, it hasn’t done so since 1961.

All 11 states that have the death penalty but haven’t used it in at least a decade have inmates on death row, as do the federal government and U.S. military.  The size of these death row populations ranges from just one inmate each in New Hampshire and Wyoming to 744 in California, which has by far the largest death row in the nation.

California’s death row has grown by nearly 100 inmates, or 15%, since January 2006, when it carried out its last execution, and by nearly 30% since 2000, according to the NAACP Legal Defense and Educational Fund, which tracks death row populations for all states.  The increase reflects the fact that California juries have continued to sentence convicted defendants to death even as executions themselves have been on hold in recent years amid legal and political disputes....

The federal government’s death row has also grown substantially since the last federal execution.  There are currently 63 federal inmates sentenced to death, up from 26 in January 2003 (just before the federal government’s most recent execution).

I have highlighted the federal piece of this notable story of execution desuetude because I had thought that Prez Donald Trump and AG Jeff Sessions might seriously try to make America execute again.  But I have not seen any effort or even any discussion by federal officials to have any federal death sentences actually carried out.  As I have noted before, this Death Penalty Information Center list of federal death row prisoners reveals that some sentenced to death have been languishing on death row for a full quarter-century and a number of others have been that for at least two decades.  Because I doubt that Prez Trump and AG Sessions are secret abolitionists, I suspect that there is something going on behind the scenes that is keeping federal justice delayed.  But I still find it notable and a bit curious that the federal death penalty still now does not really exist, practically speaking.

August 14, 2018 in Baze and Glossip lethal injection cases, Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (3)

Monday, August 13, 2018

"Algorithmic Risk Assessments and the Double-Edged Sword of Youth"

The title of this post is the title of this new paper authored by Megan Stevenson and Christopher Slobogin now available via SSRN. Here is the abstract:

At sentencing, youth can be considered both a mitigating circumstance because of its association with diminished culpability and an aggravating circumstance because of its association with crime-risk.  In theory, judges and parole boards can recognize this double-edged sword phenomenon and balance the mitigating and aggravating effects of youth. But when sentencing authorities rely on algorithmic risk assessments, a practice that is becoming increasingly common, this balancing process may never take place.

Algorithmic risk assessments often place heavy weights on age in a manner that is not fully transparent -- or, in the case of proprietary “black-box” algorithms, not transparent at all.  For instance, our analysis of one of the leading black-box tools, the COMPAS Violent Recidivism Risk Score, shows that roughly 60% of the risk score it produces is attributable to age.  We argue that this type of fact must be disclosed to sentencing authorities in an easily-interpretable manner so that they understand the role an offender’s age plays in the risk calculation.  Failing to reveal that a stigmatic label such as “high risk of violent crime” is due primarily to a defendant’s young age could lead to improper condemnation of a youthful offender, especially given the close association between risk labels and perceptions of character and moral blameworthiness.

August 13, 2018 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Big new Third Circuit opinion sorts through various post-Johnson habeas ACCA headaches

A helpful readers alerted me to a lengthy opinion handed down this morning by a Third Circuit panel in US v. Peppers, No. 17-1029 (3d Cir. Aug. 13, 2018) (available here).  I suspect only hard-core Johnson-habeas-ACCA fans will read all 48 pages of this notable ruling, and its introduction helpfully summarizes what is to be found within:

Ronnie Peppers was sentenced in 2003 to fifteen years of imprisonment for being a felon in possession of a firearm.  That was the mandatory minimum under the Armed Career Criminal Act (“the ACCA” or “the Act”), and the District Court imposed it because of Peppers’s previous convictions.  Peppers now challenges that sentence as unconstitutional in light of the Supreme Court’s decision in Johnson v. United States, 135 S. Ct. 2551 (2015), which invalidated a clause of the ACCA – the “residual clause” – as unconstitutionally vague.  He argued in District Court in a motion under 28 U.S.C. § 2255 that he was impermissibly sentenced under that invalid clause.  But that § 2255 motion was not his first, and § 2255 itself, through subsection (h), places limits on any effort to file a second or successive collateral attack on a criminal judgment.  The District Court denied Peppers’s second § 2255 motion after determining that his prior convictions remained predicate offenses for ACCA purposes because they are covered by portions of the Act that survived Johnson.  Because we disagree with the District Court’s conclusions, we will vacate its decision and remand the case for further proceedings.

Five holdings lead to our remand.  First, the jurisdictional gatekeeping inquiry for second or successive § 2255 motions based on Johnson requires only that a defendant prove he might have been sentenced under the now-unconstitutional residual clause of the ACCA, not that he was in fact sentenced under that clause.  Second, a guilty plea pursuant to Federal Rule of Criminal Procedure 11(c)(1)(C) does not preclude a defendant from collaterally attacking his sentence in a § 2255 motion, if his sentence would be unlawful once he proved that the ACCA no longer applies to him in light of Johnson.  Third, a defendant seeking a sentence correction in a second or successive § 2255 motion based on Johnson, and who has used Johnson to satisfy the gatekeeping requirements of § 2255(h), may rely on postsentencing cases (i.e., the current state of the law) to support his Johnson claim.  Fourth, Peppers’s robbery convictions, both under Pennsylvania’s robbery statute, are not categorically violent felonies under the ACCA, and, consequently, it was error to treat them as such.  Fifth and finally, Peppers failed to meet his burden of proving his Johnson claim with respect to his Pennsylvania burglary conviction.  We will therefore vacate the District Court’s order and remand for an analysis of whether the error that affected Peppers’s sentence, i.e., the error of treating the robbery convictions as predicate offenses under the ACCA, was harmless in light of his other prior convictions.

August 13, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)

Spotlighting challenges surrounding an Eighth Amendment jurisprudence defining adulthood at 18

Beth Schwartzapfel has this effective new Marshall Project piece on the Supreme Court's recent juvenile sentencing jurisprudence under the headline "The Right Age to Die?: For some, science is outpacing the High Court on juveniles and the death penalty." Here are excerpts:

When 15-year-old Luis Cruz joined the Latin Kings in 1991, he was a child by almost any measure: he couldn’t legally drive, drop out of school, or buy a beer.  But was he still a child a few years later when — just months after he turned 18 — he murdered two people on the orders of gang leaders?

Earlier this year, a federal judge in Connecticut said yes.  The judge decided that a 2012 Supreme Court ruling that forbade mandatory sentences of life without parole for juveniles should apply to 18-year-olds like Cruz, and granted his request to be resentenced.  It’s one of a small but growing number of cases in which courts are grappling with what to do with young adults who commit the most serious crimes....

When it comes to the most extreme punishments, the Supreme Court has ruled so far that 18 is a “bright line.”  If you’re under 18 at the time of your crime, you can’t be executed.  You also can’t be sentenced to life without parole without a hearing to consider your maturity level.  But the high court has never extended those protections past age 18.

“The qualities that distinguish juveniles from adults do not disappear when an individual turns 18,” Justice Anthony Kennedy wrote in Roper v. Simmons, the first of four modern cases in which the court has laid out its thinking on these issues.  “However, a line must be drawn.”  The high court has not revisited that line since Roper was decided in 2005. But state and lower federal courts have begun to consider whether people between the ages of 18 and 21 — the period psychologists now call “late adolescence” — should have the same kind of special consideration that younger teenagers get before they face sentencing for murder.

The Roper case was decided at a time when researchers had recently begun imaging adolescents’ brains.  Using functional magnetic resonance imaging, or fMRI — like the technology doctors use to look inside the brain for tumors or strokes — researchers were able to observe how young people’s brains responded to various situations.... But it wasn’t until recently that scientists began to research what happens to the brain in late adolescence and young adulthood, says Laurence Steinberg, a leading researcher into adolescent development who helped write the American Psychological Association’s briefs before the Supreme Court and who has testified in many of the more recent lower court cases. And when they did, they found that those same youthful qualities seem to persist until the early- to mid-20s.

In one recent study, Steinberg and his colleagues gave a series of tests to more than 5,000 children and young adults across 11 countries.  They found that the impulse to chase thrills and look for immediate gratification peaks around age 19 and declines into the 20s.  Steinberg describes this system of the brain like the gas pedal in a car.  The “brake” system — the ability to plan ahead and consider consequences — takes longer to catch up: it isn’t generally fully mature until the 20s.  Steinberg says if he had to draw a new bright line, he would draw it at 21.

“Knowing what we know now, one could’ve made the very same arguments about 18-, 19- and 20-year-olds that were made about 16- and 17-year-olds in Roper,” he testified in a recent Kentucky case.In that Kentucky case, a judge found the state’s death penalty statute unconstitutional because it allows people who were under 21 at the time of their crime to be executed. “If the science in 2005 mandated the ruling in Roper, the science in 2017 mandates this ruling,” he wrote.  A Pennsylvania court last year considered an appeal from a woman who was sentenced to mandatory life without parole after serving as a lookout, at 18, during a botched robbery that ended in murder.  The court rejected the appeal on technical grounds, but called 18 an “arbitrary legal age of maturity” and said an “honest reading” of the Supreme Court’s ruling would require courts to reconsider it....

Justice Kennedy, who was often the Supreme Court’s swing vote in close cases and who voted in favor of all four of the court’s major rulings extending these protections to juveniles under 18, retired this summer.  The court is widely expected to tack right when President Donald Trump’s pick assumes Kennedy’s seat.  In light of that, opponents of juvenile life without parole are aiming to keep these cases in lower courts for now, said Marsha Levick of the Juvenile Law Center, which has submitted briefs in support of many of these defendants.  They’re not likely to get a friendly hearing on the question of whether 18-, 19- and 20-year-olds are less culpable than adults from the newly composed high court, Levick said.

In the meantime, Steinberg, the psychologist, says he has been hired by the attorneys for Nikolas Cruz, who faces the death penalty as the accused gunman in February’s Parkland school shooting in Florida.  Cruz was 19 when he allegedly killed 17 people at Marjory Stoneman Douglas High School.  Steinberg “struggled about this a lot,” he said.  But in the end “it’s really hard logically to say, ‘People your age are too immature to be sentenced to death, unless you do something really, really bad.’”

August 13, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics | Permalink | Comments (1)

Sunday, August 12, 2018

While I was on road, did others notice that we "stopped being a civilized nation and accepted barbarism"?

The question in this title of this post is my somewhat tongue-in-check reaction after getting a chance to finally read Justice Sotomayor's remarkable dissent from the denial of the application for stay in Irick v. Tennessee handed down last week.  This dissent, which assailed the Court's refusal to stay an execution that Tennessee carried out this past Thursday, concluded this way:

In refusing to grant Irick a stay, the Court today turns a blind eye to a proven likelihood that the State of Tennessee is on the verge of inflicting several minutes of torturous pain on an inmate in its custody, while shrouding his suffering behind a veneer of paralysis.  I cannot in good conscience join in this “rush to execute” without first seeking every assurance that our precedent permits such a result. No. M1987–00131–SC–DPE–DD (Lee, J., dissenting), at 1.  If the law permits this execution to go forward in spite of the horrific final minutes that Irick may well experience, then we have stopped being a civilized nation and accepted barbarism. I dissent.

Because no other justice joined this dissent and Irick's execution did in fact go forward around at 7:30 p.m. CDT on Thursday, August 9, 2018, it seems that last Thursday night according to Justice Sotomayor we "stopped being a civilized nation and accepted barbarism." And, notably, this local report on Irick's execution (and the crime that prompted it) reports that the execution was not completed smoothly:

The execution began later than scheduled. The blinds to the execution room lifted at 7:26 p.m., 16 minutes later than expected. Irick, with nearly shoulder-length hair, a scraggly beard and dressed in a white prison jumpsuit and black socks, was coughing, choking and gasping for air. His face turned dark purple as the lethal drugs took over.

August 12, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Rounding up a few notable recent commentaries

Will I was on the road last week, I saw a lot of interesting commentaries that I might have blogged had I had regular internet access. Instead, now that I am back on-line, I will be content with this round-up of commentary headlines and links:

David Eads, "Too Many Politicians Misuse and Abuse Crime Data"

Craig DeRoche, "The Church Should Push Federal Criminal Justice Reform Bill to the Finish Line"

Tim Head, "FIRST STEP Act is smart legislation — perfect for prison reform"

Glenn Harlan Reynolds, "The next step in criminal justice reform is fewer laws"

Bruce Western, "Violent offenders, often victims themselves, need more compassion and less punishment"

August 12, 2018 in Data on sentencing, Prisons and prisoners | Permalink | Comments (0)

FAMM provides detailed review of SRCA sentencing provisions most likely to be added to FIRST STEP Act

As noted in this recent post, the latest buzz from inside the Beltway is that four sentencing reform provisions from the Sentencing Reform and Corrections Act might get added to the FIRST STEP Act in the Senate to produce a final federal criminal justice reform bill that will finally get voted on in both houses of Congress. Helpfully, the folks at FAMM have produced this extended document reviewing which SRCA sentencing provisions are seemingly in play.  The document is styled as a memo to Congress members and staff under the heading "Facts sheets explaining potential sentencing additions to FIRST STEP Act."  Here is part of its introduction:

In May, the U.S. House passed the FIRST STEP Act (H.R. 5682) by a vote of 360 to 59. Some Senate leaders have argued that any criminal justice reform bill considered by the Senate must include sentencing reform. Earlier this month, President Trump expressed a willingness to consider adding four sentencing reform provisions to the FIRST STEP Act.

As Members of Congress consider adding some commonsense sentencing provisions from the Senate Judiciary Committee-approved Sentencing Reform and Corrections Act (SRCA, S. 1917), we thought it would be useful to provide some background on the four sentencing provisions under consideration. In the four factsheets that follow, we explain the problem that current sentencing law is creating, provide an example of how it is harming real people, share the proposed reform found in SRCA, and relay the potential financial impact based on studies conducted by the Congressional Budget Office and the U.S. Sentencing Commission. We recognize that the reforms included in SRCA might change during negotiations and that the impact of these reforms will change accordingly.

For those interested in a detailed (pro-reform) accounting of what sentencing reform provisions now seem to have a real chance of passage, this FAMM document is very much worth checking out. Also, here is a list of just some of the (too) many prior posts I have done about the policy and political debates over federal reforms just this year:

August 12, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Saturday, August 11, 2018

Does Prez Trump have the courage to visit the largest maximum security prison in the country?

The question in the title of this post reflects my weak effort to try to goad Prez Donald Trump into accepting an invitation from Louisiana's governor as reported in this article:

Gov. John Bel Edwards has invited President Donald Trump to visit Louisiana State Penitentiary at Angola, the largest maximum security prison in the country.

In a letter sent Thursday (Aug. 9) [available here], Edwards said Angola would be a good place for Trump to explore the benefits of Louisiana's criminal justice overhaul last year. Edwards touted the vocational, victim reconciliation and faith-based programs housed at the prison, where nearly 6,000 inmates live.

Specifically, Edwards said Trump should see the accredited Bible college located at Angola and the prison's hospice program, which has received national recognition. "It is not a secret that the implementation of these types of programs is what helped to transform LSP from one of the bloodiest prisons in America to a place of hope, transformation and reconciliation," Edwards wrote to Trump.

Both the Bible college and the hospice program at Angola predate by several years the criminal justice overhaul Edwards spearheaded. In fact, inmates at Angola were not as significantly affected by the criminal justice law changes in 2017 as people in other parts of the prison system.

Edwards' criminal justice overhaul dealt mostly with shortening sentences and expanding parole and probation opportunities for nonviolent offenders. It has resulted in Louisiana losing its title of incarceration capital of the country, but the drop in the prison population has occurred almost entirely among people serving time for lower-level offenses.

Angola is home predominantly to people serving life sentences for violent crimes who will never be released from prison. Those inmates mostly did not see substantial changes in their sentences as a result of the criminal justice overhaul.

The governor also attended a meeting in New Jersey with Trump and several other elected officials on criminal justice issues Thursday. Other governors attending included Gov. Matt Bevin, R-Kentucky, Gov. Phil Bryant, R-Mississippi, and Gov. Nathan Deal, R-Georgia. Edwards was the only Democrat invited to the meeting.

Notably, a little more than three years ago as detailed in this post, Prez Obama got lots of good press for making history by being the first occupant of the White House to visit a federal correctional facility.  Back in 2015, I had this to say in the wake of this historic visit: "Though I am not really expecting it, I would love for this kind of presidential visit to a prison to become a regular habit and something of a tradition. As President Obama stressed in his recent speech to the NAACP, most of the persons behind bars "are also Americans" and all presidents should be committed to serving all Americans, even those who are incarcerated."  It would be amazing for Prez Trump to be the one who turns visiting a prison into a tradition, and perhaps Prez Trump could even be goaded into trying to  Prez Obama's visitation record by visiting both a state and a federal prison as he advocates for Congress to pass criminal justice reform.

Interestingly, earlier today Prez Trump had this tweet which mention his advocacy for prison reform in this way: "I'm pushing for prison reform to give people who have paid their debt to society a second chance. I will never stop fighting for ALL Americans!"  I hope part of his push will include a visit to Angola and other prisons and jails, where millions of Americans reside.

A few older related posts:

August 11, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

A closing thanks to Prof Drinan ... and an open invitation

As readers know, I was fortunate to have Professor Cara Drinan guest-blogging on her book, titled "The War on Kids: How American Juvenile Justice Lost Its Way," while I was on the road this past week. In addition to here expressing my thanks for her great work keeping this space warm while I was away, I also wanted to link all her postings here:

On Prof Drinan's book:

 Other postings:

In addition to closing out Prof Drinan's guest-blogging, I figured I would also use this post to note my general eagerness to help all sorts of folks utilize this soap-box in all sorts of ways.  As regular readers know, I can and often will do a single guest-post when someone sends me new information or thoughtful commentaries on sentencing topics.  And I am ever interested in having an array of authors guest-post about recent articles, reports or books.  I also welcome comments with suggestions on ways to get other voices in this space.

August 11, 2018 in Guest blogging by Professor Cara Drinan, On blogging | Permalink | Comments (0)

Friday, August 10, 2018

Could a version of the FIRST STEP Act with sentencing reforms pass the Senate in a matter of weeks?

The question in the title of this post is prompted by this encouraging Thursday Washington Examiner piece headlined "Jared Kushner helps Trump pave rare bipartisan path to big win." Here are excerpts with a few lines emphasized:

Thursday’s roundtable at President Trump’s summer White House in New Jersey to address prison and sentencing reform with governor’s is the latest bid by top aide Jared Kushner to give his father-in-law a rare bipartisan victory on a once controversial issue.

In getting Trump to carve out part of his working vacation at his golf club in Bedminster, N.J., Kushner and other officials are hoping to demonstrate how important the issues are to the president as he works to get a Senate vote in the next month.

Trump’s meeting this afternoon with governors, state attorneys general, and top aides is the latest in which he will endorse prison reform and he is also expected to open the door to sentencing reform, a sign to key senators that he is ready for a deal.

Just last week he met with Trump met with Republican Sens. Mike Lee, Lindsey Graham, Tim Scott and Chuck Grassley who are working legislation on sentencing and prison reform.

“We are trying to get a vote in the next two weeks,” said an administration official of the broad prison reform bill known as the First Step Act that passed the House overwhelmingly.

As he has on Middle East peace and other projects his father-in-law has given him, Kushner has worked overtime -- and always behind the scenes -- to build an unusual coalition in support of the reforms....

“There can’t be any doubt that by having this as the only major event on the president’s schedule that he is laser focused on this,” said one associate, who added, “We think that with this momentum and with the coalition behind it, that this can actually happen.”

Importantly, as I understand matters, the Senate would be voting on not just the prison reforms in the House version of the FIRST STEP Act, but also some sentencing reforms. Those reform are limited, but still quite significant, and they are outlined in this recent piece by Mark Holden.  And if this is brought up for a vote in the Senate, I do not think there is any real likelihood it would not pass.  Indeed, the question would be probably whether it might get even more than 80 votes.

If this really gets completely done in the coming weeks, I do think it will be right to give Prez Trump and his Administration a considerable amount of credit.  But that credit comes only if and when a bill is signed and the law is changed.  Remarkably, I am starting to get optimistic that this could happen pretty soon.

August 10, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

The War on Kids Post #5

In my last substantive guest post on Sentencing, Law & Policy, I’d like to address some of the juvenile justice reform measures that I think are achievable and worth pursuing in the post-Miller era. In the book, I devote a whole chapter to the reform frontier, and I refer to these measures as part of a war for kids.

Put kids back in juvenile court

For most of the 20th century, it was difficult and rare to move a child into adult court; juvenile court was the default for juveniles. We only moved away from that model because of fear-based and now-debunked theories about juvenile super-predators. As I mentioned in my first guest post, transfer laws have exposed juveniles to sentences that were drafted with adults in mind, including mandatory minimums and decades-long terms. Given what we know about adolescent brain development, and given that the Supreme Court has held that children are different for constitutional purposes, we should return to the default of keeping kids in juvenile court. Even in such a regime, a judge could still determine that extraordinary circumstances warranted transfer to adult court. But those rare, outlier cases should not dictate the norm for juveniles. Today, in the wake of the Miller trilogy, there is newfound traction to the claim that transfer laws (especially direct file laws) are unconstitutional and nonsensical.

Provide age-appropriate sentencing for juveniles

While children continue to be charged in adult criminal court, advocates should insist upon age-appropriate sentencing for them. At a minimum, this means seeking the abolition of juvenile life without parole, and that goal is on the horizon and achievable. Regardless of whether the Supreme Court declares a categorical ban, states are moving in this direction. Beyond this measure, advocates should insist that youth always be a relevant, mitigating variable at sentencing. In particular, consistent with the science of the Miller trilogy, it means that mandatory minimums should never apply to juveniles. I have made this argument before here, and I do in THE WAR ON KIDS, as well. Two states, Washington and Iowa, have already come to this conclusion, as I mentioned earlier this week.

Argue against incarceration for kids as a general matter

In my mind, a key component of a war for kids is the concept that incarceration is fundamentally damaging for juveniles and that we should avoid it whenever possible. This is perhaps one of the most controversial aspects of my agenda for juvenile justice reform, and I know it is the one that draws the most attention. I regularly hear from people who point to the unspeakable cruelty and violence of adolescents in the news, and I certainly do not claim that no juvenile requires secure detention. What I do claim is that we use correctional institutions in too many instances when we need not and that we do damage to juveniles in the process. As the Annie E. Casey Foundation’s recent report on probation makes clear, there are diversion and probation alternatives that are designed to develop youth and keep them out of the cycle of the correctional system.

Create periodic, youth-informed panels for juvenile sentencing review

Neuroscience tells us that the juvenile brain is developing well into the mid-20’s. This means that, even when youth commit serious crimes, if given the right opportunities at rehabilitation, they can mature and outgrow that criminal behavior. Two things follow from this reality. First, even youth who are sentenced to lengthy term-of-year sentences should be eligible for educational and other rehabilitative programs. How else will they embark on a path to demonstrating maturity and rehabilitation, an opportunity the Supreme Court requires? Second, juvenile sentences – especially lengthy ones – should be reviewed periodically for their ongoing legitimacy. Given that the Supreme Court has elevated youth to be a mitigating quality of constitutional significance, the punishment rationale for juvenile sentences cannot be what it is for similarly situated adults. Ongoing, periodic review for youth offenders can serve as a check against the Court’s concern that states not make a judgment at the outset that juvenile “offenders never will be fit to reenter society.”

It’s worth noting that, in order to secure any of these juvenile-specific measures, we must continue to push for criminal justice reform more broadly. This is harder than ever in some ways. We must vigilantly counter the growing rhetoric that says we are a crime-ridden nation and that urges prosecutors to seek the maximum sentence in all cases. And we must insist upon equality in our criminal justice system – a goal our system has espoused but never achieved.

Thank you, Doug and the Sentencing, Law & Policy community for letting me share my work! CHD

August 10, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Guest blogging by Professor Cara Drinan | Permalink | Comments (2)

Thursday, August 9, 2018

The Modern Eighth Amendment

The title of this post was the name for one of yesterday's panels at the Southeastern Association of Law Schools ("SEALS") Conference. Organized by Will Berry (Ole Miss) and Meghan Ryan (SMU), the panel addressed the history of the Eighth Amendment, Eighth Amendment doctrine and its future. Panelists (myself included) covered everything from the original meaning of "cruel and unusual" to the Court's problematic use of the "evolving standards of decency" doctrine and the future of the death penalty and JLWOP.

There really was something for everyone (well, everyone interested in Eighth Amendment issues)!

Corinna Lain (Richmond) provides a full summary here.

August 9, 2018 in Guest blogging by Professor Cara Drinan, Recommended reading, Science | Permalink | Comments (4)

White House emails "startling facts about America’s prison system"

Though I will not be back on-line regularly for a few more days, I  am finding ways to check my emails and felt inspired to report here on what appeared at the very top of the daily email blast from the White House today.  Specifically, this text and these links appeared under the heading "The startling facts about America’s prison system":

Following successful bipartisan passage of the FIRST STEP Act in the House of Representatives, President Trump is hosting a roundtable with a number of America’s governors today to discuss implementing prison reform in their states.

President Trump supports efforts to reduce recidivism — the return of former inmates to prison—as a way to make America’s streets safer. The Administration has worked closely with Congress to find a solution that reduces crime, enhances public safety, and increases opportunity for those who have earned a second chance.

“The facts about America’s prison system are startling,” Senior Advisor Jared Kushner wrote in The Wall Street Journal in April. “The U.S. has 4% of the world’s population, but roughly 25% of the world’s prisoners. . . . Of the 650,000 people who leave prison every year, two-thirds will commit a new crime within three years.”

The bottom line, says Kushner: “President Trump promised to fight for the forgotten men and women of this country—and that includes those in prison.”

The starting facts about America’s prison system.

Taking action: President Trump’s principles for reforming our prisons

No White House gets any credit or congratulations from me unless and until actual legislation gets enacted into law.  But this email, which also noted that today "President Donald J. Trump is hosting a roundtable discussion with governors on prison reform and the FIRST STEP Act before Congress," reinforces my sense that this White House is going to keep talking up at least some measure of criminal justice reform until at least something actually gets done. Or, at least, they are fooling me into believing this is a real priority for this Administration.

August 9, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences | Permalink | Comments (2)

Wednesday, August 8, 2018

The War on Kids Post #4

In my last post, I discussed the Miller trilogy and states’ attempts to implement those Supreme Court decisions. Today I want to focus on one especially challenging implementation issue: parole.

When the Supreme Court held Miller retroactive in Montgomery v. Louisiana, it suggested that states could comply with the Miller mandate by employing parole procedures, evidently in an attempt to head off potential state concerns of finality and efficiency. As the Court explained: “Giving Miller retroactive effect. . . does not require States to relitigate sentences, let alone convictions, in every case where a juvenile offender received mandatory life without parole. A State may remedy a Miller violation by permitting juvenile homicide offenders to be considered for parole, rather than by resentencing them.” However, parole post-Miller has proven to be problematic in several respects.

First, typically parole applicants enjoy very few procedural rights because the Supreme Court has treated parole as a privilege – a proceeding in which the prisoner has no liberty interest. Even when the Supreme Court has construed a state’s parole statute to create some liberty interest for prisoners, it has not gone so far as to hold that prisoners are entitled to the aid of counsel. As a result, in 35 states a prisoner has no right to counsel at a parole hearing. In contrast, when a state employs parole as a method for remedying a now-unconstitutional sentence, the prisoner does have a liberty interest at stake, as some lower courts have recognized. At the same time, because juvenile lifers are entitled to a “meaningful opportunity to obtain release,” parole boards across the country are now tasked with examining factors deemed relevant in Miller, including childhood environment and efforts at rehabilitation. Thus, youth offenders seeking parole may be entitled to procedural safeguards, including the right to counsel, never before seen in the parole context.

Second, while parole largely disappeared from the criminal justice landscape in the late 20th century, it has been making a comeback as part of the smart on crime movement – only modern parole is new and different. While discretion and instinct are still relevant, modern parole is largely dependent upon actuarial assessments of prisoners’ risks if released. These risk assessment tools rely upon statistical relationships between both static (e.g. age at date of conviction) and dynamic (e.g. level of education obtained during incarceration) factors. Almost all states employ these risk assessment tools in the parole process.

Here’s the concern post-Miller: the risk assessment tools may rely on factors that defy the Supreme Court’s holding that children are categorically less culpable and more amenable to rehabilitation. For example, in many jurisdictions, the tools consider the inmate’s age at first commitment; the younger the age at first commitment, the higher the risk factor and the less likely the inmate is to be released. Similarly, many tools consider factors such as employment history and marital status before incarceration; being single and unemployed increases one’s risk assessment score. Juvenile offenders as a group, precisely because of their youth at the time of conviction, were unlikely to have been married or to have had an employment history. In other words, the risk assessment tools treat youth as an aggravating variable, while the entire logic of the Miller trilogy hangs on youth as a mitigating variable.

Finally, there are several other thorny questions implicated in jurisdictions that employ parole as a Miller remedy. Should states be expected to release a certain percentage of youth offenders seeking parole in order to satisfy the “meaningful opportunity” standard? When a parole board denies release, must it issue a decision and rationale in writing beyond the generic statement that an applicant is not a suitable candidate? What is an appropriate wait period for a board to impose before reconsidering a case? Henry Montgomery himself was denied parole earlier this year and given a two-year setoff period; he’s already 71 and surely at some age a two-year setoff violates the meaningful opportunity standard.

By my count, 11 states today are employing some kind of new, youth-informed parole procedure in order to address prisoners with claims under Miller. Other jurisdictions are employing their previously existing parole mechanisms to do so. Litigation challenging the adequacy of these procedures is already underway, and time will tell how helpful it was for the Court to suggest that states rely upon parole as a Miller remedy.

August 8, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Guest blogging by Professor Cara Drinan, Sentences Reconsidered | Permalink | Comments (12)

Monday, August 6, 2018

The War on Kids Post #3

As Doug’s readers know, in recent years the Supreme Court has limited the extent to which states can expose kids to the most serious sanctions on the books. In a series of cases known as the Miller trilogy (Roper v. Simmons, Graham v. Florida, and Miller v. Alabama) the Court has held that states cannot execute people for juvenile crimes (Roper); that the Eighth Amendment bars life without parole for juvenile, non-homicide offenders (Graham); and that it similarly precludes mandatory life without parole even for juveniles who commit homicide (Miller). With these decisions, the Court has underscored the idea that “kids are different” for constitutional purposes and state sentencing practices must reflect that fact.

While I address these decisions in some detail in The War on Kids, I know that most of Doug’s readers are familiar with the basics of these decisions and the social science on which they relied. So I want to focus this post on the implementation of the Miller trilogy.

Implementing the Miller trilogy has been messy. First, there was the question of who benefitted from these cases. Roper and Graham were clearly retroactive decisions – they took off the table a form of punishment as it applied to a category of individuals – and each case affected a relatively small pool of prisoners. At the time of Roper, there were 72 death row inmates who had been convicted as juveniles, and according to the Supreme Court, there were 129 juvenile non-homicide offenders serving LWOP at the time of Graham.

Miller, on the other hand, called into question the validity of approximately 2,500 cases nationwide. After some initial confusion among lower courts, the Supreme Court clarified in Montgomery v. Louisiana that the Miller decision applied retroactively. As a result, those 2,500 prisoners whose cases were squarely within the purview of Miller became eligible for some modification of their sentence. (I’ll return in my next post to the Montgomery Court’s suggested and yet problematic method for compliance, parole). In addition, youth offenders across the nation who had been sentenced to de facto life sentences or to sentences of life with parole began to seek judicial relief, arguing that the reasoning of Miller applied to their cases too. In sum, there are now thousands of individuals across the country with legitimate claims to relief under the Miller trilogy.

Second, states have grappled with how to implement a Miller remedy: what should it be? and who should provide it? In recent years, many state legislatures have banned JLWOP. In 2011, the year before Miller, only five states banned JLWOP; today 20 states and D.C. ban the sentence. At the same time, states like West Virginia and Nevada have enacted legislation that not only bans JLWOP, but also permits ongoing, periodic review for youth serving lengthy terms and requires sentencing judges to consider the mitigating aspects of youth. Courts have also focused on the rehabilitative ideals of the Miller trilogy and have struck down lengthy term-of-year sentences as the de facto equivalent of JLWOP. The Massachusetts high court has banned JLWOP and held that youth offenders seeking parole have the right to counsel and expert assistance. The Iowa Supreme Court found that the Miller rationale precludes any mandatory sentence for youth. In sum, many courts and legislative bodies are grappling with when youth offenders should receive a second-look, what term of year sentence is appropriate in lieu of LWOP, and what procedural safeguards apply post-Miller to inmates seeking relief.

As I discuss in the book, this implementation process has been slow and the results have been mixed. Not all states have embraced the science and reasoning behind the Miller trilogy. For example, Michigan incarcerates 363 of the roughly 2,500 inmates nationwide serving JLWOP. Under Miller, those 363 individuals should receive a new sentence that takes into account their youth and other relevant mitigating factors. Moreover, the Miller Court expressly said that, given what we know about adolescent brain development, “appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” Yet prosecutors in Michigan are seeking to resentence more than half of these individuals to LWOP over great protest from the defense community. Some prosecutors in counties of Pennsylvania and Louisiana have taken equally harsh positions on resentencing JLWOP inmates. At the same time, courts have been split on the question whether Graham and Miller apply to aggregate juvenile sentences that result in a death-in-custody term.

And prisoners feel the geographic disparity post-Miller. Consider Florida, where Terrence Graham originally received JLWOP for the attempted armed robbery of a barbeque restaurant. After the Supreme Court found his JLWOP sentence unconstitutional in 2010, he received a resentencing hearing and a 25-year sentence for his non-homicide crime. In contrast, juvenile homicide offenders in Massachusetts are now parole eligible after serving 15 years and they enjoy a number of procedural rights in the parole process. Post-Miller it is clear that justice can be slow and uneven as a function of federalism.

In my next post, I’ll focus specifically on state attempts to use parole in order to comply with Miller.

August 6, 2018 in Assessing Miller and its aftermath, Guest blogging by Professor Cara Drinan, Sentences Reconsidered | Permalink | Comments (6)

Sunday, August 5, 2018

Prison Nurseries?

I'll be back tomorrow blogging about the war on kids, but I wanted to share this NBC news story about prison nurseries.

According to the piece, there are eight prison nurseries in the United States, and as the number of women in prison has exploded in recent years, their existence raises several interesting questions. Is separation from one's infant a just part of a sentence? Does that sentence inflict more harm on the child than the mother? Is it safe/desirable/cost-effective to allow mothers and infants to remain in prison together? More here:

Bedford Hills has the nation’s longest-running prison nursery. Opened in 1901, it has allowed hundreds of women who have started their sentences pregnant to bond with their babies while behind bars — something advocates say is best for babies and lowers the mothers’ recidivism rate, but some critics argue violates the children’s constitutional rights using taxpayer money, while placing a burden on prison staff by requiring them to double as day care workers.

Bedford Hills is one of eight prison nurseries in the United States. The number of such programs has fluctuated as funding and sentiment toward them has risen and fallen, but now, more than ever, their effectiveness is under scrutiny as the number of women behind bars has skyrocketed.

There are nearly 214,000 women incarcerated in the U.S. — an increase of more than 700 percent since 1980, according to nonprofit The Sentencing Project. There is no official count of how many of these women give birth while imprisoned.

In most prisons, when a woman gives birth, her baby is taken away within 48 to 72 hours and sent to either a relative or foster care. Prison nursery supporters say that keeping newborns with their moms, even behind bars — while not a perfect solution — is better than any alternative.

 

August 5, 2018 in Guest blogging by Professor Cara Drinan, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (0)

Saturday, August 4, 2018

Encouraging news from DC about prospects for prison reform with sentencing reform getting enacted in 2018

Though I am a very long way from DC right now (much closer to Russia, in fact, somewhere on this route), I had to find a way on-line to be sure to note the exciting federal criminal justice reform news reported here in The Hill under the headline "Trump gives thumbs up to prison sentencing reform bill at pivotal meeting."  Here are the details:

President Trump has told Republican senators that he’s open to a new proposal on prison and sentencing reform, giving new life to an issue that seemed hopelessly stalled on Capitol Hill.

The compromise presented to Trump by Republican senators at a White House meeting on Wednesday would combine the prison reform bill passed by the House in May — the First Step Act — with four sentencing reform provisions that have bipartisan Senate backing, according to a source familiar with the meeting.

A senior White House official described the president as “positively inclined” toward the compromise proposal. The source said Trump told GOP senators to “do some work with your colleagues” and “let's see where the Senate is and then come back to me with it.”...

The compromise offer was presented to Trump at a meeting with Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Sens. Mike Lee (R-Utah), Lindsey Graham (R-S.C.) and Tim Scott (R-S.C.). Jared Kushner, a senior White House adviser and Trump’s son-in-law; Shahira Knight, the new White House legislative affairs director; and White House chief of staff John Kelly also attended the White House meeting.

Attendees described Trump’s support for the initiative as a positive development for the effort to reduce mandatory-minimum prison sentences for nonviolent drug offenders. While getting a final bill to Trump would require a Senate vote and then winning House approval for the new package, a second source familiar with the meeting described it as “very successful.” “It’s not done until it’s done, but we made a lot of progress,” the source said.

Grassley said afterward that he believes prison reform and sentencing reform can be moved in tandem. “I think we made great progress so it doesn’t have to be broken up,” Grassley told reporters Thursday. “There seems to be an interest on the part of the White House now to keeping the bills together.”

Negotiators now think there’s a possibility of moving legislation through the Senate as soon as this month, though it’s more likely to wait until the lame-duck session after the midterm elections....

The emergent compromise proposal would make several technical changes to the House-passed First Step Act and merge it with four sentencing reforms from the Senate’s Sentencing Reform and Corrections Act, which has a large number of co-sponsors from both parties.

“The question is how little sentencing reform we can put in there without losing the Democrats and how much we can put in there without losing more than a handful of Republicans, and we think we’ve about cracked that formula,” said a person familiar with the internal talks who briefed The Hill.

The proposed compromise would lower lifetime mandatory minimum sentences for people with prior nonviolent drug felony convictions to 25 years and reduce 20-year mandatory minimum sentences for similar offenders to 15 years. But in an effort to reach common ground, that reform would only apply to new sentences and not to people already in jail.

Another reform would free judges from having to ratchet up sentences for drug offenders convicted on simultaneous charges. A requirement known as the “stacking enhancement” forced judges to treat convictions on multiple charges as prior offenses and mandated harshly long punishments for nonviolent drug offenders. In another bid to broaden political support, this reform would not apply retroactively.

A third reform would apply the Fair Sentencing Act, which Congress passed in 2010 and reduced the disparity between cocaine- and crack-related offenses, retroactively. That law reduced the disparity between cocaine- and crack-related crimes prospectively but only applied to new sentences. The reform now being discussed would retroactively reduce the disparity of old sentences.

The final reform would expand exceptions to the application of mandatory-minimum sentences to more people with criminal histories.

I am not counting any sentencing reform chickens before they hatch, but this description of the compromise combo FIRST STEP Act and SRCA would seem to make a lot of sense in light of various positions staked out on both sides of the aisle. And if Prez Trump signals support for such a reform package and is willing to make it a priority, I would now be inclined to predict this will get done this year. But because Prez Trump has never seemed a serious advocate for sentencing reform, and because his Attorney General likely dislikes all of this, and because the run-up and aftermath of an election can disrupt lots in DC, I am inclined to remain pessimistic about all of this until votes are being scheduled and taken.

August 4, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

The War on Kids Post #2

In my last post, I addressed the irony of America inventing the juvenile court and then both exporting that concept to the world and abandoning it domestically. Today I want to unpack the realities of my claim that there has been a war on kids since the late 20th century. Let me acknowledge that, to some readers, the concept of a war on kids in America today may sound misguided or dramatic. After all, educators complain of helicopter parents and so-called free-range parents may face prosecution for granting their children liberties that were commonplace in my childhood. However, even as some children in America are more coddled and protected than ever before, I stand by my claim that the U.S. has waged a war on kids.

This is what the war on kids looks like. On any given day, there are approximately 50,000 juveniles being held in American correctional facilities, thousands of whom are in adult jails and prisons. While some hold themselves out as camps, academies or training facilities, these are correctional institutions; 89% of them are locked and many employ handcuffs, leg cuffs and restraining chairs, as well as solitary confinement. At the same time, we are not reserving detention for the most serious juvenile offenders. Nearly a quarter of youth in juvenile facilities have only been charged with a technical probation violation or a status offense. Schools, with police officers in the halls and zero-tolerance policies on the books, have become a gateway to the criminal justice system. In at least 22 states it’s a crime to disrupt school in ways that may have earned a student a trip to the principal’s office a few decades ago. Preschoolers, yes, preschoolers, can face suspension and expulsion for age-appropriate behaviors. This is deeply problematic, as suspensions, especially repeated ones, increase a student’s risk of dropping out of school and coming into contact with the criminal justice system.

Moreover, as I mentioned in my first post this week, our laws have cemented the notion that kids, once accused of a crime, may be treated as adults. Prosecutors routinely remove kids from juvenile court and charge them in adult court on the basis of the legal fiction of transfer laws. Youth in adult court are subject to mandatory sentences that today many of us would agree are too harsh even as applied to adults. Juveniles can be housed in adult correctional facilities, despite being the most vulnerable to physical and sexual assault in those locations. Until 2005 we were the only nation to execute people for juvenile offenses, and today we are the only developed nation in the world that still sentences children to die in prison.

Perhaps most discouraging, the war on kids has taken its greatest toll on the nation’s most vulnerable kids – those in poor, minority areas that are under-resourced and heavily policed. Black youth are more than twice as likely as white youth to be arrested, and, even as overall youth detention rates continue to decline, black youth are five times as likely as white youth to be detained. Similarly, poverty shunts children into the criminal justice system who would never be there if they had the financial resources to pay for private counsel, a diversion program, or even an ankle bracelet. Finally, when one looks at youth serving the most extreme sentence on the books, life without parole, approximately half were physically abused and nearly 80 percent witnessed violence in the home. Thus, like most wars, the war on kids has had its greatest impact on poor, minority and otherwise vulnerable communities.

In my next post, I’ll address recent Supreme Court decisions regarding juvenile sentencing and their implementation at the state level.

August 4, 2018 in Guest blogging by Professor Cara Drinan, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (8)