Sunday, March 16, 2014
The state of the death penalty in the Sunshine State
This lengthy new Orlando Sentinel article, headlined As death penalty wanes in U.S., Florida executes even more killers," provides a review of capital realities in a state that now leads even Texas in number of executions in 2014 so far. Here are some of the details:
Robert Lavern Henry is set to be executed this week for killing two women in 1989 by beating them with a hammer and setting them on fire in a Deerfield Beach fabric store. He would be the 16th prisoner executed under Gov. Rick Scott's watch, more than any other modern Florida governor in a single term.
At a time when other states are curtailing or outlawing executions, Florida is bucking the trend. A swelling number of death sentences handed down in the 1990s are reaching the ends of their appeals. Florida also is experiencing a rare window of relatively few legal challenges, botched executions or political infighting over the issue....
Florida has been more likely to hand out death sentences and is the only state that doesn't require unanimous jury recommendations for the death penalty. Florida's 15 death sentences and California's 24 accounted for nearly half of the death sentences dealt nationwide in 2013, according to the Death Penalty Information Center.
Only nine states carried out executions in 2013, and Maryland became the sixth state in six years to outlaw the death penalty. Meanwhile, Florida executed seven people in 2013, second only to Texas with 16. Florida leads the country with three executions so far this year.
Yet some experts say the Sunshine State's death-penalty system needs sweeping change. Christopher Slobogin, a law professor at Vanderbilt, chaired the American Bar Association's Death Penalty Assessment Team, which in 2006 issued a study that pronounced Florida capital punishment deeply flawed. It recommended a top-to-bottom review to ensure innocent people weren't being executed. But that never happened. "As far as I can tell, the Florida system remains in just as much disarray as when we looked at it," he said.
Some lawmakers are still trying to carry out one of the team's proposals to require unanimous jury sentencing recommendations for the death penalty. "Florida is an outlier," said Rep. José Javier Rodríguez, a Miami Democrat sponsoring the bill, HB 467.
Instead, lawmakers and governors have tried repeatedly during the past three decades to accelerate executions....
The latest example is the 2013 "Timely Justice" law, which required the clerk of the Florida Supreme Court to certify a list of cases ready for death warrants. In October, the clerk sent a list of 133 names where appeals had been exhausted to Scott's office, out of the about 400 people on death row.
The law set timelines for when Scott must act on those names, although his office still solely determines when the clemency process has been exhausted. "I think over time we'll see the average amount of time people spend on death row decrease exponentially," said Rep. Matt Gaetz, R- Fort Walton Beach, who sponsored the bill. "The effect is clear." Florida death-row inmates wait about 14 years on average to die, the Department of Corrections says....
This past summer, a group of lawyers representing death-row inmates challenged the "Timely Justice" law as a violation of separation of powers and due process for inmates. The Florida Supreme Court heard arguments last month but hasn't ruled yet. Lawyers last week asked the court to delay Henry's execution until a decision is rendered, but the justices Friday denied that request.
NY Times sees "A Rare Opportunity on Criminal Justice"
The title of this post is drawn from the headline of this new New York Times editorial about federal sentencing reform. Here are excerpts:
The current Congress is the place where virtually all legislation, however urgent or reasonable, goes to die. Yet out of this stew of partisan mistrust and dysfunction there may come one promising and unexpected achievement: the first major reforms to America’s broken criminal justice system in a generation.
Two bipartisan bills now under consideration aim to unwind our decades-long mass incarceration binge and to keep it from happening again. This fact is remarkable not only because of Congress’s stubborn standstill, but because crime and punishment has long been one of the most combustible issues in American politics....
The Smarter Sentencing Act — introduced in the Senate last year by Richard Durbin, the Illinois Democrat, and Mike Lee, the Utah Republican — would halve mandatory minimum sentences for certain nonviolent drug crimes, which currently stand at five, 10 and 20 years. It would also give judges more discretion to sentence below the mandatory minimum in some cases, and it would provide a chance at early release for thousands of inmates sentenced under an older law that disproportionately punished crack cocaine offenders.
The Recidivism Reduction and Public Safety Act, introduced by Sheldon Whitehouse, Democrat of Rhode Island, and John Cornyn, the Texas Republican, would allow low-risk prisoners to earn credit for early release by participating in education, job training and drug treatment programs.
Reforms like these were unthinkable even a few years ago, when the Republicans’ longtime tough-on-crime dogma — echoed by Democrats who fearfully fell into line — drove irrational sentencing laws. Why have things changed so quickly? In a word, money — or the lack of it. The bloated Bureau of Prisons eats up nearly $7 billion a year, a quarter of the Justice Department’s entire budget. Politicians like Senator Rand Paul, Republican of Kentucky, and Mr. Lee have become the public face of the conservative turnabout, and they deserve credit for their efforts, but it’s important to remember that almost none of this would be happening without the need to save money.
In fact, many of the reforms now under consideration at the federal level began in reliably conservative states, where budget crises long ago demanded sweeping and lasting change. In Texas, which incarcerates more people than any other state, lawmakers have adopted alternatives to prison, such as drug courts and improved community supervision programs, that help keep people from reoffending. The result has been a steady decline in the prison population and the closing of three state prisons, even as crime rates go down. As Mr. Cornyn told The Times, “From Texas’s perspective, the evidence is in.”
Since 2000, 29 states have moved to cut back on mandatory sentences, particularly for low-level and nonviolent drug offenders, according to a new report by the Vera Institute of Justice.
Some prosecutors and politicians warn that all this reform comes at a serious risk to public safety, but the experience of multiple states shows otherwise. Reserving prison for the most violent offenders saves money, and antirecidivism programs targeted at low-risk inmates protect public safety.
Whether the concern is too much government, too little money, or the inherent unfairness of locking people up for years for no good reason, the energy from both the right and the left is converging, and the moment for meaningful reform has arrived.
Though I share the general perspective that there is a “fierce urgency of now" for federal sentencing reforms, I disagree that money explains these recent developments at the federal level. States, especially red states, have been at the forefront of modern sentencing reforms because of the need to balance budgets without raising taxes, but the feds have long shown a willingness to borrow money for any and all federal priorities. Rather, I think there is a new generation of politicians and voters who no longer view crime as much more salient concern than just and effective punishment.
Younger and more diverse politicians and voters appreciate that too much government and punishment can be as worrisome as a bit more crime, and that is what I think we are now finally getting a much more balanced federal political discourse about these issues than we did a generation ago. (Notably, the Baby Boomers were the first major generation who did not directly experience/witness the harms/problems of Prohobition and totalitarian regimes, so it makes some sense that generation would embrace a big criminal justice system eschewed by their parents and their children.)
March 16, 2014 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack (0)
Saturday, March 15, 2014
"Stop turning death row inmates into tragic celebrities"
The title of this post is the headline of this recent commentary from the Dallas Morning News, which gets started this way:
Want to end the death penalty in Texas? Quit being a sucker. Stop turning death row inmates into tragic celebrities. Quit letting your opposition to criminal punishment policy make romantic political prisoners out of sociopaths and killers.
The current case-in-point is Ray Jasper III, who is scheduled for execution by injection next week. Earlier this month, he became an Internet sensation when the news blog Gawker published his long and well-written critique of the U.S. justice system in general and the Texas death penalty in particular [available here].
Jasper, 33, quotes Gandhi, Thoreau, Martin Luther King. He equates modern-day executions with lynchings and the Holocaust. He writes knowledgeably about the law of parties, Texas’ felony murder rule that says an accomplice — like a lookout or a getaway driver — is just as guilty as the co-defendant who personally pulled the trigger or wielded the knife. “The facts are undisputed that I did not kill the victim,” he writes, yet under Texas law, “I’m criminally responsible for someone else’s conduct.”
“My life is a testament to what it is to be young and black in America,” he dramatically writes, as part of his lengthy treatise on racism, oppression and the “prison-industrial complex.” He conjures up a powerful analogy between the plight of prison inmates and that of antebellum slaves.
All of this made opponents of capital punishment, who routinely deride Texas for its “barbaric” imposition of the death penalty, swoon. The letter was picked up, copied, translated into foreign languages. Enthusiastic bloggers called it “beautiful,” “profound,” “eye-opening,” “gut-wrenching” and “startlingly eloquent and thought-provoking.”
It’s also a large dish of self-serving baloney. It skillfully parrots all the most fashionable tropes favored by the “ain’t-Texas-backwards” crowd. And it tidily sidesteps the pertinent facts of Jasper’s crime.
The facts, according to court records, are these: In 1998, Jasper, an aspiring rap singer, made plans to rob and kill David Alejandro, a San Antonio musician who ran a small independent recording studio. Jasper recruited two accomplices. The three went to the studio and spent two hours recording. Then Jasper walked over to Alejandro, who was running the soundboard, yanked his head back by the hair, and cut his throat open with a kitchen knife.
With blood pouring out of his neck, Alejandro desperately fought back. Jasper shouted for an accomplice, who rushed over and stabbed Alejandro more than 20 times. The assailants threw a tarp over the dead man while they loaded the studio equipment into their cars. They were caught within a few days.
Jasper maintains that he isn’t guilty of murder because the medical examiner said it was the stab wounds rather than the cut throat that technically caused death. Thus, after planning the crime, cutting the victim’s throat and confessing all this to the police, he maintains that he’s “not a killer” and that he “never killed anyone.” If Texas says different, he maintains, it’s because Texas is a backwater police state of racism and oppression.
Nobody would have bothered challenging Jasper’s “startlingly eloquent” message had not the victim’s brother written Gawker a letter in response [available here]. If you want startling eloquence, read what Steven Alejandro, a lifelong capital punishment opponent, says to anti-death-penalty activists:
“Keep up your fight. It is an honorable one. But do not use this man, Ray Jasper, as your spokesperson, as your example of why the death penalty should be abolished. The death penalty should be abolished because it is wrong to kill another human being. Ray Jasper is not worthy of your good and kind hearts. He has never accepted culpability or expressed remorse.”
Top Texas criminal court, in split ruling, decides Miller is to be applied retroactively
As reported in this Austin American-Statesman article, headlined "Court tosses out sentence for Austin killer," the Texas Court of Criminal Appeals ruled this past week that the US Supreme Court's Miller ruling is to apply retroactively. Here are the basics:
The state’s highest criminal court Wednesday ordered a new sentence for Terrell Maxwell, who is serving life in prison without the possibility of parole for shooting an Austin man in the head during a 2007 robbery. Maxwell was 17 at the time of the shooting, and the Texas Court of Criminal Appeals ruled that his automatic sentence of life without parole violated the U.S. Constitution’s prohibition on cruel and unusual punishment when applied to defendants who were under the age of 18 at the time of the crime.
The 5-4 ruling left intact Maxwell’s conviction for capital murder in the death of Fernando Santander, who was shot while sitting in a van in the parking lot of his apartment complex near Rundberg Lane. Two accomplices testified that Maxwell shot Santander when the 31-year-old, startled to find a gun pointing at his cheek, quickly raised his hands in surrender, court records show.
The Texas court split on whether a 2012 U.S. Supreme Court ruling — Miller v. Alabama, which established that automatic no-parole sentences for juveniles were unconstitutional — applied retroactively to defendants like Maxwell.
Writing for the Texas court’s majority [opinion available here], Judge Cathy Cochran said the Miller ruling required that Maxwell be given the opportunity to argue in court that life without parole was not an appropriate sentence. The Miller ruling did not prevent life without parole for juvenile murderers, Cochran wrote. But before such a sentence can be imposed, jurors must consider “how children are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison,” she noted.
Two dissents — written by Judges Michael Keasler and Paul Womack, joined by Presiding Judge Sharon Keller and Judge Barbara Hervey [available here and here] — said the Miller ruling should not be applied retroactively....
Texas no longer allows the practice, but 17 Texans are serving life without parole for murders committed while they were juveniles between 2005 and 2009. In 2005, Texas juries were given the choice between execution and life without parole for those convicted of capital murder. Because capital punishment was unconstitutional for offenders younger than 18, a guilty verdict meant a mandatory life sentence without parole for teens tried as adults.
Four years later, the law was amended to ban no-parole sentences for juveniles. Several legislators said the move was intended to correct an oversight in the 2005 law, but the no-parole ban was not made retroactive.
March 15, 2014 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack (0)
Friday, March 14, 2014
"G.O.P. Moving to Ease Its Stance on Sentencing"
The title of this post is the headline of this lengthy new New York Times article, which reports on political developments that should be largely well-known to regular readers of this blog. Here are snippets (with a key legislative development highlighted in the middle):
[L]eading Republicans are saying that mandatory minimum sentences in the federal system have failed — too costly, overly punitive and ineffective. So they are embracing a range of ideas from Republican-controlled states that have reduced prison populations and brought down the cost of incarceration.
The shift turns upside down the “war on crime” ethos on the right, and even among some on the left, an approach that has dominated the policy of punishment for more than two decades.
Religious conservatives see these efforts as offering compassion and the hope of reuniting broken families. Fiscal conservatives say the proposals would shave billions off the federal budget. The combination has made closing prisons and releasing inmates who no longer appear to pose a threat new articles of faith among politicians who would have rejected them out of hand only a few years ago....
The changes represent a rare example of both parties agreeing in a major area of domestic policy. The Obama administration is engaged and supportive of the efforts in Congress, as was evident on Thursday when Attorney General Eric H. Holder Jr. endorsed a proposal that would reduce prison sentences for people convicted of dealing drugs, the latest sign that the White House is making criminal justice a priority of President Obama’s second term.
Bipartisan talks to move forward on a broad criminal justice bill have escalated in recent days. Republicans and Democrats are in early discussions about combining two bills that the Senate Judiciary Committee approved overwhelmingly this year. The first would give judges more discretion to depart from mandatory minimum sentences in lower-level drug cases, cut down mandatory sentences for other drug offenses, and make retroactive the 2010 law that shrunk the disparity between cocaine and crack-cocaine sentences.
The second bill seeks to tackle the other end of the problem by establishing a skills-training and early-release system for those who already are incarcerated but are considered at low risk of committing another crime. Senator Harry Reid of Nevada, the majority leader, has signaled to both parties in the chamber that he will bring a criminal justice bill to the floor this year.
These proposals have united political odd couples. Senator Mike Lee of Utah, along with and Senator Ted Cruz and Senator John Cornyn, both of Texas — some of the most conservative Republicans in the Senate — are aligned with Senator Richard J. Durbin of Illinois and Senator Sheldon Whitehouse of Rhode Island, who are among the more liberal Democrats. The subject consumed an animated panel discussion last weekend at CPAC, the annual gathering of conservatives, with Grover Norquist, the antitax advocate; Gov. Rick Perry of Texas; and Bernard B. Kerik, the former New York City police commissioner....
Mr. Cornyn, a former judge and the No. 2 Republican in the Senate, identified another conservative ideal behind the changes: They originated in the states, where most Republicans would prefer to let policies develop and mature. “When the states take the initiative, it goes from being a theory or a philosophy or an ideological discussion to ‘What’s the evidence?’ ” he said. “From Texas’s perspective, the evidence is in.”...
Mr. Whitehouse noted how politically and demographically diverse the states were that formed the basis for the Senate’s legislative model. “The states we’d talk most about,” he said, “were Rhode Island, Texas, Kentucky and Pennsylvania. Go figure.”
Some Republicans want to take the changes even further. Legislation that Senator Rand Paul of Kentucky is drafting would restore voting rights for some nonviolent felons and convert some drug felonies to misdemeanors.
Mr. Paul, who is a possible presidential candidate in 2016 and has been courting constituencies like African-Americans and young people who feel alienated by the Republican Party, said it was only a matter of time before more Republicans joined him. “I’m not afraid of appearing to be not conservative enough,” he said, explaining that he got the idea for his legislation by talking with black constituents in the western part of Louisville who complained to him that criminal convictions were often crosses to bear for years, keeping them from voting and getting jobs.
“I don’t think most of the country thinks marijuana is a good idea,” Mr. Paul added. “But I think most of the country thinks that if you happen to get caught doing it when you’re a teenager you should get a second chance.” Like several of the Republicans who have changed their minds on the issue, Mr. Paul has a personal story that helped shape his position. The brother of a good friend, he said, is unable to vote today because 30 years ago he was convicted of growing marijuana — a felony.
For Mr. Portman, it was his encounters with a man about his age, a drug addict who had been in and out of the system several times but received the assistance he needed in prison to help turn around his life. “He’s got dignity and self-respect,” Mr. Portman said. “These stories are unbelievably encouraging.”
For Mr. Lee, who like Mr. Whitehouse, Mr. Cornyn and many of the other lawmakers involved in drafting the legislation has experience as a prosecutor or judge, it was seeing firsthand the inflexible nature of the federal sentencing system. “As an assistant U.S. attorney, I saw from time to time instances in which a judge would say, ‘I’m not sure this sentence makes sense, in fact I have real reservations about it. But I have to,’ ” Mr. Lee said. “Those memories have stayed with me.”
Some longtime supporters of overhauling the federal sentencing and prison systems wish Republicans had come to see their way sooner. But they still marvel at the turnaround. “It’s really striking,” said Jeremy Haile, federal advocacy counsel for the Sentencing Project. “Now they’re arguing the other way: who can be the smartest on crime.”
March 14, 2014 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (30) | TrackBack (0)
Who will create an astute marijuana litigation and legal practice blog?
Regular readers know that I have long covered marijuana laws, policies and reform advocacy here because I see so many crime and punishment issues intersecting with the drug war generally and criminal justice approaches to marijuana specifically. And, last year, I felt compelled to start a new blog, Marijuana Law, Policy and Reform, in part because there were so many broader issues of public policy implicated by modern marijuana reform efforts: as I have said in my marijuana seminar course description, "contemporary state-level reforms of marijuana laws have raised significant new constitutional, legal, political and practical issues; policy concerns relating to states' rights, local government law, race, gender, public health, crime, political economy, and bioethics intersect with modern marijuana law reform."
Now, as the title of this post suggests and largely thanks to some terrific guest blogging by Alex Kreit over at MLP&R, I think the time may be right for an enterprising lawyer and/or law firm to start a blog focused particularly on marijuana-related litigation and emerging legal practice issues surrounding this new industry. I say this based in part on these four new recent posts over at MLP&R which highlight the array of diverse issues and courts now dealing with dynamic marijuana-related litigation:
In this post a few months ago, I speculated that green (i.e., young/junior) lawyers may have a uniquely important role to play in the emerging marijuana green rush industry: not only may veteran lawyers be cautious and concerned about representing persons actively involved in state marijuana business, but marijuana reform often seems a "young man's game" for which junior lawyers may be uniquely positioned to be of service to persons needing legal help in this arena. Now I am thinking, based in part on the posts above, that an especially effective way for a young lawyer or small law firm to make a name here (and to learn a whole lot) would be to start blogging astutely about the emerging challenges and opportunities that surround marijuana litigation and legal practice.
"Some prosecutors fighting effort to eliminate mandatory minimum prison sentences"
The title of this post is the headline of this new Washington Post article highlighting that not all prosecutors agree with Attorney General Eric Holder about the need for significant sentencing reforms. Here are excerpts:
Attorney General Eric H. Holder Jr.’s broad effort to eliminate mandatory minimum prison sentences for nonviolent drug offenders and reduce sentences for defendants in most drug cases is facing resistance from some federal prosecutors and district attorneys nationwide. Opponents of the proposal argue that tough sentencing policies provide a critical tool to dismantle drug networks by getting cooperation from lower-level defendants and building cases that move up the criminal chain of command....
Longer prison terms for more criminals have led to a significant decline in the crime rate over the past 20 years, these critics say, and they argue that Holder’s proposed changes are driven by federal budget constraints, not public safety. “Rewarding convicted felons with lighter sentences because America can’t balance its budget doesn’t seem fair to both victims of crime and the millions of families in America victimized every year by the scourge of drugs in America’s communities,” Raymond F. Morrogh, commonwealth’s attorney in Fairfax County and director at large of the National District Attorneys Association, testified Thursday to the U.S. Sentencing Commission....
The prospect of ending mandatory minimum sentences for drug offenses had drawn fire from the National Association of Assistant U.S. Attorneys, which has been lobbying senior lawmakers to try to prevent legislation that would change the system. “We believe our current sentencing laws have kept us safe and should be preserved, not weakened,” said Robert Gay Guthrie, an assistant U.S. attorney in Oklahoma and president of the prosecutors’ organization. “Don’t take away our most effective tool to get cooperation from offenders.”
The organization that represents line federal prosecutors has written letters to Holder, Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Sen. Charles E. Grassley (Iowa), the panel’s ranking Republican, urging them not to change the sentencing rules. Guthrie said that 96 percent of about 500 prosecutors who were surveyed in an association poll did not support Holder’s plan.
But other assistant U.S. attorneys — as well as several who were interviewed — said the new guidelines would reduce prison overcrowding and would be more equitable to certain defendants who can face severe sentences under the current system. “It allows us to be more fair in recommending sentences where the level of culpability varies among defendants in a large drug organization, but where the organization itself is moving large quantities of drugs,” said John Horn, first assistant U.S. attorney in the Northern District of Georgia. “Before the new policy, every defendant involved with over five kilos of coke would be subject to a minimum 10 or 20 years, whether he was a courier, someone in a stash house, a cell head or an organizational leader, and those distinctions can be important.”
Or, as Neil MacBride, a former U.S. attorney for the Eastern District of Virginia, put it: Former Mexican drug lord “Chapo Guzman and some low-level street dealer in Richmond simply don’t pose the same existential threat to society.”...
Sally Yates, the U.S. attorney for the Northern District of Georgia, said any new system will require some period of adjustment. “This is a sea change for assistant U.S. attorneys,” said Yates, who was appointed by President Obama after working as an assistant U.S. attorney for more than 20 years. “They grew up in a system in which they were required to seek the most serious charge, which often resulted in the longest sentence. Now, the attorney general is saying, ‘Look at the circumstances of every case and his or her prior criminal history in determining the fair and appropriate charge.’ That’s a lot harder than robotically following a bright line rule.”
Timothy J. Heaphy, the U.S. attorney for the Western District of Virginia, said prosecutors in his office at first had concerns similar to those of the association. “But as time goes on,” he said, “people are understanding that we’re spending less money on prisons and it is more fair to tailor our charging discretion.”
In the end, a Justice Department official said, assistant U.S. attorneys are free to express their opinions internally, but they don’t make policy. They must follow guidelines, the official added. Indeed, when Guthrie was asked Thursday about Holder’s newest proposal, he acknowledged: “We’ll follow the direction of the attorney general. He’s our boss.”
Some prior posts about AG Holder and prosecutorial perspectives on sentencing reform:
- Attorney General to testify about drug guideline reform before US Sentencing Commission
- "With Holder In The Lead, Sentencing Reform Gains Momentum"
- "Holder and Republicans Unite to Soften Sentencing Laws"
- Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote
- Are "hundreds of career prosecutors" (or mainly just Bill Otis) now in "open revolt" over AG Holder's support for the Smarter Sentencing Act?
- Very eager to provide very thorough and fair coverage of prosecutors' views on Smarter Sentencing Act
Thursday, March 13, 2014
"The New Jim Crow? Recovering the Progressive Origins of Mass Incarceration"
The title of this post is the title of this notable recent article by Anders Walker and available via SSRN. Here is the abstract:
This article revisits the claim that mass incarceration constitutes a new form of racial segregation, or Jim Crow. Drawing from historical sources, it demonstrates that proponents of the analogy miss an important commonality between the two phenomena, namely the debt that each owe to progressive and/or liberal politics. Though generally associated with repression and discrimination, both Jim Crow and mass incarceration owe their existence in part to enlightened reforms aimed at promoting black interests; albeit with perverse results. Recognizing the aspirational origins of systematic discrimination marks an important facet of comprehending the persistence of racial inequality in the United States.
Capital murder charges in mix for SXSW killer drunk driver
Regular readers know that I am eager for persons involved in dangerous drunk driving incidents to be subject to significant punishment. Consequently, I was pleased to see this new report emerging from Austin suggesting Texas justice may be severe for a deadly drunk driving incident. The piece is headlined "Killeen man facing capital murder charges in fatal SXSW crash," and here are excerpts:
A suspect who police say killed two people when he mowed down a festival crowd at Thursday's South by Southwest festival has been identified as a 21-year-old Killeen man. Rashad Charjuan Owens is expected to be charged with two counts of capital murder and 23 counts of aggravated assault with a vehicle, according to a police source.
Owens is suspected of driving drunk and has been booked but not yet formally charged. He remained in police custody while being treated at a local hospital and was released to officers, officials said. Two festival-goers, including a woman from Austin and a man from The Netherlands, were killed and 23 more were injured early Thursday after the suspected drunken driver rammed through a police barricade in downtown Austin.
According to reports, Owens fled from police after an attempted traffic stop at a gas station about three blocks from where the crowd was standing outside a music venue....
Austin Police Chief Art Acevedo described a large crowd on the street, in line for a concert at The Mohawk on 10th and Red River Street. Many festival attendees also had just left another show at nearby Stubb's minutes before. Hundreds of pedestrians were still on the street at the time, as rapper Tyler the Creator was due to perform....
The incident, which lasted for just a minute, began at 12:30 a.m. when an APD officer attempted to pull over a suspected drunken driver into a downtown gas station, just off Interstate 35, Acevedo said. The suspect fled, weaving through traffic at the gas station, then drove the wrong way down a one-way street, Ninth Street, before turning onto a crowded Red River Street. An officer at the Red River barricade had to jump out of the way. The suspect continued north, through two blocks of pedestrian traffic, before hitting the moped, a taxi, a parked van, and running into a curb, according to Acevedo. The driver attempted to run away when a police officer shocked him with a stun gun.
The Austin Police Department reported 966 DWI incidents citywide this year through February, down 10 percent from the same time period last year. Police reported 585 DWI incidents citywide during March 2013, up 3 percent from March 2012....
According to the Austin Police Department's last annual report, dated 2012, the city had 22 fatal crashes that year involving an alcohol-impaired driver, up from 10 the year before. That amounts to 29 percent of all fatal crashes, up from 21 percent the year before. By contrast, the San Antonio Police Department reported a total of 60 alcohol-related traffic fatalities last year and 48 in 2012.
"Attorney General Holder Urges Changes in Federal Sentencing Guidelines to Reserve Harshest Penalties for Most Serious Drug Traffickers"
The title of this post is the title given by the Justice Department to this press release with AG Holder's statements to the US Sentencing Commission concerning drug guideline reform. Here are just a few highlights:
The Justice Department strongly supports the Commission’s proposed change to the Drug Quantity Table. If adopted, this amendment would lower by two levels the base offense levels associated with various drug quantities involved in drug trafficking crimes. This would have the effect of modestly reducing guideline penalties for drug trafficking offenses while keeping the guidelines consistent with current statutory minimums – and continuing to ensure tough penalties for violent criminals, career criminals, or those who used weapons when committing drug crimes.
This straightforward adjustment to sentencing ranges – while measured in scope – would nonetheless send a strong message about the fairness of our criminal justice system. And it would help to rein in federal prison spending while focusing limited resources on the most serious threats to public safety. Let me be clear, my primary obligation as Attorney General is to ensure the safety of the American people. The changes that I have implemented over the past year are designed to do exactly that – while making our system more fair and more efficient.
This proposed amendment is consistent with the “Smart on Crime” initiative I announced last August. Its implementation would further our ongoing effort to advance commonsense criminal justice reforms. And it would deepen the Department’s work to make the federal criminal justice system both more effective and more efficient when battling crime and the conditions and behaviors that breed it.
Previewing what AG Holder will say about drug sentencing to US Sentencing Commission
As noted in this prior post, Attorney General Eric Holder is, according to this official agenda, the first scheduled witness at the US Sentencing Commission's important public hearing today on proposed amendments to reduce drug sentencing terms in the federal sentencing guidelines. The full text of what AG Holder says will likely be available on line later today, but this new Washington Post article, headlined "Holder will call for reduced sentences for low-level drug offenders," provides a preview of what he plans to say (which my emphasis below on an especially notable development) and some context for his latest sentencing reform advocacy:
Attorney General Eric H. Holder Jr. on Thursday will urge reduced sentences for defendants in most of the nation’s drug cases, part of his effort to cut the burgeoning U.S. prison population and reserve stiff penalties for the most violent traffickers.
Holder’s proposal, which is expected to be approved by the independent agency that sets sentencing policies for federal judges, would affect 70 percent of drug offenders in the criminal justice system, according to figures provided by Justice Department officials. It would reduce sentences by an average of nearly a year.
“Certain types of cases result in too many Americans going to prison for far too long, and at times for no truly good public safety reason,” Holder plans to tell the U.S. Sentencing Commission, according to excerpts of his testimony provided to The Washington Post. “Although the United States comprises just five percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners.”
Like Holder’s previous criminal justice reforms, the move is likely to be hailed by civil liberties groups and assailed by some lawmakers who think the administration is chipping away at federal policies designed to deter criminals and improve public safety.
The seven-member sentencing panel has proposed an amendment to federal sentencing guidelines and will vote on it as soon as April. Until then, federal judges must refer to current sentencing guidelines. Holder, however, will instruct his prosecutors in a memo Thursday not to press judges to impose the longer sentences in the current guidelines if attorneys for drug offenders seek shorter sentences for their clients that would be permissible under the new policy.
Under current mandatory minimum guidelines, a drug offender convicted of possessing 500 grams of cocaine or 28 grams of crack would face a term of 63 to 78 months. Holder is proposing that the time in such a case be reduced to 51 to 63 months. “By reserving the most severe penalties for dangerous and violent drug traffickers, we can better protect public safety, deterrence and rehabilitation while saving billions of dollars and strengthening communities,” Holder plans to say. The lower sentencing ranges would result in a 17 percent decrease in the average length of time imposed on a drug offender, Justice Department officials said.
Holder’s new sentencing proposal is the latest step in his agenda to revise the criminal justice system. In August, he announced that low-level nonviolent drug offenders with no connection to gangs or large-scale drug organizations would not automatically be charged with offenses that call for severe mandatory sentences. That measure, however, didn’t address the sentencing ranges defendants could face under federal guidelines.
Holder’s latest policy change would reduce the Bureau of Prison population by 6,550 people within five years, according to the Justice Department. Of the more than 216,000 federal inmates, nearly half are serving time for drug-related crimes. At the same time it is seeking to reduce sentences for nonviolent offenders, the Justice Department is putting greater focus on violent traffickers who bring heroin and other drugs into the United States....
Holder’s efforts to reduce the prison population have drawn criticism from Sen. Charles E. Grassley (Iowa), the ranking Republican on the Senate Judiciary Committee, and other lawmakers who say the administration is undermining policies that were set up to deter would-be criminals.
But many of Holder’s criminal justice policies have been praised by civil liberties groups and have bipartisan support in Congress. A bill that Holder and the Obama administration support to reform prison sentences includes both Republican and Democratic sponsors, including Senate Judiciary Committee Chairman Patrick J. Leahy (D-Vt.) and Sen. Mike Lee (R-Utah).
Last week, at the Conservative Political Action Conference at National Harbor, Md., Republican Texas Gov. Rick Perry said that prison reform is one issue on which he agrees with Holder. “There aren’t many things that the president and the attorney general and I agree about. Know what I mean?” said Perry, who ran for president in 2012.
As noted in this post, I will be off-line most of today in order to travel to and participate in a Sixth Circuit oral argument. But I should be able to provide additional coverage and review of all the sentencing reform action taking place today at the USSC's public hearing before the end of the day.
Some old and newer related posts about AG Holder and the "new politics" of sentencing reform:
- Attorney General to testify about drug guideline reform before US Sentencing Commission
- Notable talk of sentencing reform at CPAC conference
- "With Holder In The Lead, Sentencing Reform Gains Momentum"
- Lots of (mostly positive) reactions to AG Holder's big sentencing speech
- "Holder and Republicans Unite to Soften Sentencing Laws"
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Another notable GOP member of Congress advocating for federal sentencing reform
- Conservative group ALEC joins the growing calls for sentencing refom
- Effective Heritage analysis of federal MMs and statutory reform proposals
- Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote
- Will Tea Party players (and new MMs) be able to get the Smarter Sentencing Act through the House?
- Are "hundreds of career prosecutors" (or mainly just Bill Otis) now in "open revolt" over AG Holder's support for the Smarter Sentencing Act?
- Senate Judiciary Committee approves Recidivism Reduction and Public Safety Act
Wednesday, March 12, 2014
Sixth Circuit to hear oral argument on extreme application of ACCA in US v. Young
A number of months ago in this post, titled "A few shotgun shells landed a man 15 years in federal prison," I reported on a remarkable federal sentencing story out of Tennessee involving an extreme application of the 15-year mandatory minimum federal sentencing term set out in the Armed Career Criminal Act. I am now excited that tomorrow morning, a Sixth Circuit panel is scheduled to hear oral argument in this matter, US v. Young. I am excited in part because I authored a brief on behalf of the National Association of Criminal Defense Attorneys (NACDL) setting out why this sentencing should be deemed unconstitutional under a proper application/interpretation of the Eighth Amendment. And the Sixth Circuit has afforded me five minutes of argument time (taken from the Appellant's alloted time).
Notably, counsel for Mr. Young has on appeal has developed a Fifth Amendment challenge to the conviction as well as making Eighth Amendment arguments against the sentence. And the feds, not surprisingly, contend there is no constitutional problem with the conviction and sentence in this case. Readers interested in this case and the legal issues on appeal can review the briefs, which I am uploading here:
Related prior posts:
- "A few shotgun shells landed a man 15 years in federal prison"
- New York Times column spotlights extreme application of ACCA in US v. Young
Alabama judges complain about new guidelines that limit their discretion to impose prison terms
Federal practitioners are used to hearing complains from sentencing judges about mandatory sentencing laws (and formerly mandatory guidelines) that require judges to impose lengthy prison sentences in certain cases. But now in Alabama, as highlighted by this interesting new local article, state sententencing judges are complaining about new sentencing law that prevents them from imposing prison terms in certain cases. The article is headlined "Judges criticize sentencing guidelines," and here are excerpts:
All three members of Walker County’s Circuit Court were critical of Alabama’s new sentencing guidelines for nonviolent offenders while visiting with the Rotary Club of Jasper Tuesday.
Presiding Circuit Judge Jerry Selman described the current political climate as “frustrating” for judges because of the guidelines, which took effect in October 2013. “We can no longer put people in jail who steal from us or who sell drugs to our children,” Selman said.
Proponents of the guidelines say that they are needed to address overcrowding in the state’s prisons, which are hovering at 195 percent of capacity. In 2009, federal judges ordered officials in California to reduce the prison population after it had reached 200 percent of capacity.
Selman told Rotarians that he prefers stiff sentences because he believes that the fear of incarceration is a deterrent to crime. As an example of the correlation, Selman shared the impact of a 60 year prison sentence he handed down to a female drug dealer.
He said he felt the sentence was justified because the woman had ruined the lives of multiple children in the black community by offering them marijuana and gradually moving them on to other narcotics. “I had several police officers come to me and say that for at least the first six weeks after that sentence, you couldn’t find a single drug in the black section of Jasper,” Selman said.
Selman added that he expected to see an increase in crime once individuals charged with drug and theft crimes realize the implications of the sentencing guidelines. Word recently reached him that a self-described career thief did not intend to hire a lawyer the next time he made an appearance before Selman because he could no longer receive jail time.
Selman said his opinion is that legislators are “misguided” and are using the guidelines to avoid building more prisons. “They are looking for ways to save money that are not apparent to everyday people. If they quit patching the holes in the highway, it becomes obvious,” Selman said.
Circuit Judge Hoyt Elliott agreed that building prisons would be a more logical solution to the state’s overcrowding problem than limiting the sentencing options available to judges. “The Legislature controls the purse strings. It wouldn’t be an easy thing for them to do, but it could be done. Tax structures could be changed. They are just not going to do it because it’s not politically popular. So they put the burden on us to relieve the overcrowding, and that is not our job to do,” Elliott said.
Circuit Judge Doug Farris said the guidelines will also undercut the incentive to participate in the county’s Drug Court program, which has had over 200 graduates since 2008 and has a success rate of more than 50 percent. “Whatever the Legislature says, I’m going to do, but I think the best way is to give the discretion back to the judges. Sometimes we need to be lenient, and sometimes we need to be strict. Every case is different,” Farris said.
New Hampshire House votes to repeal state's (dormant) death penalty
As reported in this local piece, the "New Hampshire House has approved a measure to repeal the state's death penalty after rejecting an amendment that would have spared the life of the only convict on death row in the state." Here is more:
The House voted 225-104 in favor of repeal....
The Legislature voted to repeal capital punishment in 2000, but then-Gov. Jeanne Shaheen vetoed the bill. Democratic Gov. Maggie Hassan has said she supports repeal as long as it is not applied retroactively to Addison's case.
The measure next goes to the Republican-controlled Senate, where it faces an uncertain future.
I call New Hampshire's death penalty dormant largely because it has only one person on death row and has not executed anyone in three-quarters of a century.
Attorney General to testify about drug guideline reform before US Sentencing Commission
I am pleased and very intrigued to now see from this agenda that the first scheduled witness at the US Sentencing Commission's public hearing scheduled to be held tomorrow morning to receive testimony on proposed amendments to the federal sentencing guidelines is none other than the Honorable Eric H. Holder, Jr., Attorney General of the United States. I was already excited about what would develop as the USSC heard from folks about its proposal to cut the drug sentencing guidelines across the board (discussed here), but I now think this hearing could end up being historic as well as interesting.
I cannot recall the US Attorney General ever testifying directly before the US Sentencing Commission, even in the wake of Blakely and Booker and all the uncertainty and reform that was being robustly discussed by all the branches during the transformation of the federal sentencing system and the guidelines as a result of major SCOTUS ruling. And though I am not an expert on USSC history, I think this may be the first time that a sitting Attorney General has testified directly at a USSC hearing.
This development confirms my view that AG Holder wants federal drug war reform to be a big part of his legacy, and I think any and everyone interested in the federal sentencing system and the broader national war on drugs ought to pay very close attention to what takes place tomorrow morning in the Mecham Conference Center in the Thurgood Marshall Federal Judiciary Building, One Columbus Circle, N.E., Washington, DC.
Ohio Supreme Court explains how Miller is to be applied in discretionary juve LWOP system
The Ohio Supreme Court this morning handed down a lengthy split decision in Ohio v. Long, No. . 2014-Ohio-849 (March 12, 2014) (available here), which explain how the Eighth Amendment rules in Miller, which only formally declare conconstitutional a mandatory juve LWOP sentencing scheme, are to be applied in a system that already gave sentencing judges discretion in cases in which juve killers were made eligible for an LWOP sentence. Here is the start and some additional excerpts from the majority opinion:
In this case, we are asked whether a trial court violates the Eighth Amendment by imposing a sentence of life imprisonment without parole for an aggravated murder committed by a juvenile. We hold that a court, in exercising its discretion under R.C. 2929.03(A), must separately consider the youth of a juvenile offender as a mitigating factor before imposing a sentence of life without parole in light of Miller v. Alabama, ___ U.S. ___, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012)....
As applied to a juvenile found guilty of aggravated murder under R.C. 2929.03(A), then, Ohio’s sentencing scheme does not fall afoul of Miller, because the sentence of life without parole is discretionary. Nor is our criminal procedure flawed under Graham and Miller by failing to take into account that a defendant is a youthful offender. Nevertheless, for clarification we expressly hold that youth is a mitigating factor for a court to consider when sentencing a juvenile. But this does not mean that a juvenile may be sentenced only to the minimum term. The offender’s youth at the time of the offense must still be weighed against any statutory consideration that might make an offense more serious or an offender more likely to recidivate. Yet because a life-without-parole sentence implies that rehabilitation is impossible, when the court selects this most serious sanction, its reasoning for the choice ought to be clear on the record....
Although Miller does not require that specific findings be made on the record, it does mandate that a trial court consider as mitigating the offender’s youth and attendant characteristics before imposing a sentence of life without parole. For juveniles, like Long, a sentence of life without parole is the equivalent of a death penalty. Miller, 132 S.Ct. at 2463, 183 L.Ed.2d 407. As such, it is not to be imposed lightly, for as the juvenile matures into adulthood and may become amenable to rehabilitation, the sentence completely forecloses that possibility...
The United States Supreme Court has indicated in Roper, Graham, and Miller that juveniles who commit criminal offenses are not as culpable for their acts as adults are and are more amenable to reform. We agreed with this sentiment in In re C.P., 131 Ohio St.3d 513, 2012-Ohio-1446, 967 N.E.2d 729. Miller did not go so far as to bar courts from imposing the sentence of life without the possibility of parole on a juvenile. Yet because of the severity of that penalty, and because youth and its attendant circumstances are strong mitigating factors, that sentence should rarely be imposed on juveniles. Miller, ___ U.S. ___, 132 S.Ct. at 2469, 183 L.Ed.2d 407. In this case, the trial court must consider Long’s youth as mitigating before determining whether aggravating factors outweigh it.
March 12, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack (0)
"Judges as Framers of Plea Bargaining"
The title of this post is the title of this intriguing new paper by Daniel S. McConkie Jr. now available via SSRN. Here is the abstract:
The vast majority of federal criminal defendants resolve their cases by plea bargaining, with minimal judicial input or oversight. This presents significant issues concerning transparency, fairness, and effective sentencing. Federal prosecutors strongly influence sentences by the charges they select. The parties bargain informally outside of court and strike a deal. But defendants often plead guilty without a realistic understanding of their likely sentencing exposure. Instead, they plead guilty based on their best guess as to how judges will resolve certain issues and their own fear that they could get an unspecified but severe post-trial sentence. The judge is often reluctant to reject the parties’ deal, partly because the judge may have little information about the case, and partly because the judge lacks the resources for courtroom-clogging jury trials. What is needed is a public, court-supervised, advocacy procedure early in the case to guide the parties in considering key sentencing issues and fashioning a just and reasonable sentence based on the judge’s feedback.
This article explores a proposed procedure that would do just that. Early in the case, and upon the defendant’s request, the parties would litigate a pre-plea motion procedure similar to sentencing proceedings. As part of those proceedings, a pre-plea, presentence report would be prepared with input from the parties. The motion would educate the judge about the case and enable the judge to issue two indicated sentences: one for if the defendant pleaded guilty as charged, and another for if the defendant were convicted at trial. This increased judicial participation through a regularized, advocacy procedure would allow judges to help frame the parties’ discussion of sentencing issues and likely sentencing consequences earlier in the case, all without involving the judge in the parties’ plea discussions. Several benefits would flow from this: the plea bargaining process would become more transparent, resulting in increased public accountability; the defense attorney would have greater incentives to properly investigate and present key issues; and the defendant could make a more informed decision about whether and on what terms to plead guilty. In short, plea bargaining is here to stay, but criminal justice would be greatly improved by bringing more of the plea bargaining process back into the courtroom where the judge could help frame the key issues for the parties.
Making a case for "capital punishment [as] one of law enforcement’s most valuable tools"
U.S. Rep. Dave Reichert, who previously served as the lead detective of the Green River Task Force, has this new commentary about the death penalty running under the headline "The death penalty is an important tool of law enforcement." Here are excerpts:
The Green River Task Force ... collected far too many bodies — all young women full of potential who became ensnared in a sordid way of life through a variety of circumstances. Victims of their situations, they also became victims of the Green River killer.
These memories came rushing back to me because of Gov. Jay Inslee’s recent decision to unilaterally stop enforcing the death penalty while he is in office. He says he wants to start a “conversation” about capital punishment, so let’s start with some facts.
In Washington state, the death penalty is reserved for a select group of people. In legal terms, these criminals have committed murder in the first degree under aggravating circumstances. Simply put, these people are the worst of the worst. Currently there are nine men on Washington’s death row who have committed such atrocities. Even the governor has admitted he believes all nine are guilty of their crimes.
Gary Ridgway is the monster we arrested as the Green River killer in 2001. He would eventually plead guilty to 49 counts of murder although he has claimed that he raped and murdered 20 to 30 more young women.
There was only one way Ridgway would plead guilty: if the threat of capital punishment, one of law enforcement’s most valuable tools, were taken off the table. Ridgway is a coward. To him the victims’ lives meant nothing, but his own life was far too precious to him to consider losing, so he sent his lawyers to bargain for his life.
In 2003, we convinced Ridgway not only to plead guilty but to spend six months shedding light on the fate and whereabouts of other young women he killed. We were able to find answers for families who had agonized for years over the whereabouts of their loved ones. I witnessed how those answers could allow families to grieve, say goodbye and begin to rebuild their lives, always remembering their lost loved one.
Every tool in the arsenal of a law-enforcement officer is important — from the sidearms we carry to the law itself. Without these tools, we cannot keep our communities safe or ensure justice is carried out. That is why I believe the death penalty is critical to public safety.
When Gov. Inslee announced his moratorium on capital punishment, he reduced the effectiveness of law enforcement in Washington state. The moratorium’s tangible effects are minimal, considering its infrequent use. Since the voters reinstated capital punishment here in 1975, five men have been put to death. But for every cop and prosecutor who needs to put away a violent murderer, there is one fewer weapon with which to fight for justice. More cases will go to trial and monsters like Ridgway could hold on to their secrets forever or even walk free.
If the governor wants to start a conversation on the death penalty, the people of Washington state must be included. He took an oath to uphold our law, and he should not violate that oath because he disagrees with the law. If he wishes to overturn it, then he should propose legislation and take the case to the voters.
The people of Washington put capital punishment on the books and they should be the ones to take it away if they choose. In the meantime, the governor should be engaging law enforcement and other groups about this issue. If he doesn’t, it will be the people of Washington State who pay.
Recent related posts:
- Washington Gov declares moratorium on executions during his term
- Victims' families laments Gov's execution moratorium in Washington
Tuesday, March 11, 2014
Ohio prosecutor, upon learning of mental health issues, helps undo 5-year prison term for voter fraud
This local article from Cincinnati, which is headlined "Poll worker who voted illegally freed from prison," reports on a remarkable development in a remarkable voting fraud case thanks to the work of a new defense attorney and a thoughtful local prosecutor. Here are the details:
The former Hamilton County Board of Elections worker convicted last year of illegal voting and sent to prison for five years was released Tuesday because of mental health issues. Melowese Richardson, 58, was too ashamed to mention her bipolar disorder last year and forbid her attorney, Bill Gallagher, from including it as part of her attempt to elude prison. But after she was convicted last spring of four counts of illegal voting, her new attorney appealed the case and raised the issue.
When he sentenced Richardson last year, Common Pleas Court Judge Robert Ruehlman made stinging comments about Richardson, her criminal history, her violation of elections board rules and Ohio laws and her selfishness. "I was not aware of her mental health issues" at that time, the judge said Tuesday, because she refused to allow her attorney to mention it.
After her new attorney, David Singleton, took her case on appeal, he presented her mental health history to Prosecutor Joe Deters. He agreed her bipolar disorder was so severe that she shouldn't be imprisoned. "We went to Joe Deters with those records and Joe immediately recognized that it was inappropriate to have her locked up for five years when the (judge) didn't know she had mental health issues," Singleton said....
In the Tuesday hearing that lasted just minutes, Richardson said nothing except to briefly answer questions, saying she was aware of what was happening and approved. The judge dismissed her May 2013 conviction and five-year prison sentence and allowed her to plead no contest to four counts of illegal voting, the same charges on which she was convicted. That allowed the judge to re-sentence her, placing her on five years of probation and releasing her from the Hamilton County Justice Center after eight months in prison.
Richardson's case drew national headlines last year because of the allegations of illegal voting across the country – and because she was a Hamilton County poll worker from 1998 until her arrest. She was convicted of voting twice in the 2012 election and voting three times – in 2008, 2011 and 2012 – for her sister, Montez Richardson, who has been in a coma since 2003.
Richardson was previously convicted of threatening to kill a witness in a criminal case against her brother, of stealing, of drunken driving and of beating someone in a bar fight.
Persons familiar with Ohio policy and politics know that Hamilton County is a fair conservative part of the state and that Hamilton County Prosecutor Joe Deters is widely know for having put a significant number of murderers on the state's death row. But as this case usefully highlights, state and local prosecutors are often able and often willing to reconsider or resist the use of lengthy prison terms when defense lawyers are able to effectively highlight why such a sentence may be unjust and/or ineffective.
"The Regulation of Sentencing Decisions: Why Information Disclosure Is Not Sufficient, and What To Do About It"
The title of this post is the title of this notable new paper by W.C. Bunting now available via SSRN. Here is the abstract:
This Article identifies a number of problems, both in practice and in theory, in what is denoted here as the “information disclosure model of sentencing regulation.” While the disclosure model places a lack of information at the heart of the problem of inefficient sentencing policy, the present article explains how the problem is better understood, not as informational, but incentives-based.
A statutory appropriation requirement is described that seeks to correct an explained incentive to engage in myopic legislative decision-making; specifically, a one-year appropriation is required from a general budget fund into a statutorily-created special reserve fund for any proposed change in sentencing policy projected to increase the correctional population. A survey of existing statutory appropriation requirements is provided and certain best practices are identified; in addition, a novel statutory provision is proposed: monies should be appropriated from the special reserve fund to the general fund if a bill is projected to decrease the correctional population. Such withdrawals from the special reserve fund made in the current fiscal period serve as concrete, immediate evidence of the fiscal benefits of less punitive criminal sentences, where such benefits are often realized only in the long-run, and supply a novel incentive for legislators to engage in forward-looking, fiscally-responsible sentencing policy.
The present article further contends that proposed changes in sentencing policy should not be subjected to cost-benefit analysis (as opposed to fiscal impact analysis as required under the statutory appropriation requirement), because the retributive value of a criminal sentence is extremely difficult to measure given the current state of estimation technology.