December 5, 2011
US Sentencing Commission releases fourth quarter of FY 2011 federal sentencing data
The US Sentencing Commission has some fresh new federal sentencing data just up on its website. The USSC's latest data report, which can be accessed here, is described this way:
Fourth Quarter FY11 Quarterly Sentencing Update: An extensive set of tables and charts presenting fiscal year quarterly data on cases in which the offender was sentenced during fiscal year 2011. The report also provides an analysis of sentencing trends over five years for several key sentencing practices. (Published December 5, 2011)
As I have noted repeatedly in prison posts with other federal sentencing data runs, these data showcase the enduring reality that federal prosecutors, not federal judges, continue to be the primary driving force behind below-range sentences. The latest quarter of data reveal a government-sponsored below-guideline sentencing rate of 26.2% and a judge-initiated below-guideline sentencing rate of 17.1%. In other words, during the latest quarter for which we have sentencing data, federal district judges decided to go below the guidelines on their own in only about one out of every six case, but they went below the guidelines upon a recommendation by prosecutors in more than one out of every four cases.
These cumulative data also show that for certain types of offenses, most notably child pornography and money laundering offenses, a within-guideline sentence is much less likely than a below-guideline sentence. The data indicate that in these categories and a few others, only roughly about one in three offenders get a within-guideline sentences while nearly two-thirds get a below-guideline sentence. (That fact alone would seem to provide a sound reason for the US Sentencing Commission to consider revising these guidelines downward; but, any downward adjustment in the guidelines is always much easier to propose than to make happen.)
Ninth Circuit applies Tapia rule to supervised release revocation sentences
It is possible (probably?) that only hard-core federal sentencing fans will understand either the title of this post or the significance of the Ninth Circuit's work today in US v. Grant, No. 10-10245 (9th Cir. Dec. 4, 2011) (available here). With luck, these final substantive paragraphs from the Grant (with footnote cites removed) opinion will explain in more detail what this post is all about and why this issue might be of interest to at least a few folks beyond hard-core federal sentencing fans:
Two of our sister circuits have divided on whether Tapia applies to imprisonment on revocation of supervised release. The First Circuit held in United States v. Molignaro that courts are not permitted to consider rehabilitation when they are revoking a term of supervised release, just as they are not permitted to do so when they initially sentence a defendant to prison or lengthen his prison sentence. Molignaro takes special note of the incapacity of the sentencing court to require the Bureau of Prisons to enroll a prisoner in a particular rehabilitation program after revocation of supervised release, the same reason that Tapia noted in the context of an initial sentence. The Fifth Circuit in United States v. Breland goes the other way, noting that the supervised release statute directs a court to certain Section 3553 factors, including rehabilitation, and does not include the “recognizing that . . .” prohibition.
We think that the First Circuit has the better of the arguments. The point in Molignaro about the incapacity of the revoking court to order what it considers to be appropriate rehabilitative measures outweighs the cross-referencing argument in Breland. The “recognizing that . . .” phrase does not limit itself, by its words, to initial sentencing, but appears to embrace all sentences of imprisonment. We recognize that sentencing judges may have a hard time following Tapia’s command: “Do not think about prison as a way to rehabilitate an offender.” “[R]etribution, deterrence, incapacitation, and rehabilitation,” the “four purposes of sentencing,” sound more distinct than they really are. A judge may reasonably think that retribution and incapacitation will most effectively rehabilitate the criminal being sentenced. Punishment for wrongdoing is “classical conditioning whose effects we ordinarily identify as conscience,” so the verbal difference between punishment and rehabilitation may obscure the fact that they are often the same thing. We make a child behave by telling him to go to his room, and we make an adult behave by telling him to go to his room, only his room has bars. Hopefully both the child and the adult will internalize a sense of wrongdoing attached to whatever conduct caused their confinement.
Nevertheless, Tapia is the controlling statutory construction. So prison, whether as an initial sentence or on revocation of supervised release, can be imposed and the duration selected only for purposes of retribution, deterrence, and incapacitation, not rehabilitation. When a judge imposes prison, he may wisely believe that it will have rehabilitative benefits, but those benefits cannot be the reason for imposing it. On revocation of supervised release, district judges must make and articulate their imprisonment decisions in terms of the other legitimate sentencing criteria. This rule applies both when determining whether to impose imprisonment and when determining the length of the prison sentence.
Professor Becker and Judge Posner examine mass incarceration in the US
This week's topic on "The Becker-Posner Blog" is the question "Does America Imprison Too Many People?." Regular readers likely know that I think the answer to the question in yes, and Professor Gary Becker and Judge Richard Posner also seem to come to this conclusion. Here are the concluding paragraphs from Professor Becker's analysis of the question:
Elsewhere I have discuss why the US should decriminalize and legalize drugs (see, for example, my post on 3/20/2005 called “The Failure of the War on Drugs”). If the US were to do that, the prison population would eventually fall by over 30%. The imprisonment of blacks and women would fall by even larger percentages since these groups are more likely to be in prison on drug-related charges. Such a policy change would also release police and other resources that have been used to catch and punish drug dealers to concentrate on crimes where victims suffer great harm. These crimes would then fall, perhaps because more offenders would be caught and imprisoned. The US might still imprison a larger fraction of its population than peer countries, but the differences would become much smaller than at present.
Imprisonment should be rarely used also for other victimless crimes, for crimes that do not greatly harm victims, and for crimes where victims can be adequately compensated by fines and other monetary punishments. In these cases, punishment should consist of fines, probation, and other ways that do not require imprisonment. Eliminating imprisonment for drugs and other victimless crimes,and for many other crimes would cut greatly the US’ bloated prison population, reduce the spending on prisoners, and cut down the depreciation of the market skills of offenders who did not commit serious crimes.
Here are the concluding paragraphs from Judge Posner's analysis of the question:
There are a number of other possible explanations for the conjunction of a high rate of imprisonment with a high crime rate. One is not enough police, or intelligent enough police, to prevent and detect crime effectively. Another is a high elasticity of supply for criminal activity, so that discouraging or preventing one person from committing crimes induces someone else to enter the crime industry. Another (suggested above) is that we define crime too broadly, criminalizing activities that in other countries are lawful; our high rate of sexual offenses against minors is a function in part of a high age of consent (18). Or we may make too little use of fines, and of regulatory and private-litigation alternatives to criminal punishment. The prevalence of gun ownership may be a factor, along with the proximity to the United States of countries in Latin America that are large producers of illegal drugs. And finally crime rates are particularly high in the southern states of the United States, and that may have deep cultural roots.
Reform is difficult when the causes of a problem are multiple or unknown. And because the direct monetary costs of the criminal justice system are not very great by current standards (only about $40 billion a year), and there is strong hostility among the general public to criminals (another cultural fact, perhaps), and because our huge prison system provides a great deal of employment, there is no pressure for reform. Yet the indirect costs of high levels of incarceration must be very great, in the form of the lost output of the large number of prisoners, most of whom are of working age.
Investigation reveals (shockingly?!?!) that politicians and politics impact federal pardons
As noted here yesterday, ProPublica has now produced this series of important new articles under the banner "Presidential Pardons: Shades of Mercy." Today's installment is headlined "Pardon Applicants Benefit From Friends in High Places," and here are excerpts from data reported in the piece:
Since 2000, a total of 196 members of Congress — 126 Republicans and 70 Democrats — have written to the pardons office on behalf of more than 200 donors and constituents, according to copies of their letters obtained through the Freedom of Information Act. Many of the letters urged the White House and the Justice Department to take special note of felons whom lawmakers described as close friends.
A statistical analysis of nearly 500 pardon applicants during the Bush administration suggests that advocacy makes a difference. Applicants with a member of Congress in their corner were three times as likely to win a pardon as those without such backing. Interviews and documents show a lawmaker’s support can speed up a stalled application, counter negative information and ratchet up pressure for an approval.
[Roger] Adams, who ran the Justice Department’s pardons office from 1998 to 2008, acknowledged the potential value of congressional letters. “If the official does know the person,” Adams said, “it gives it some weight.”
A Justice Department spokeswoman said that the agency would not comment on any individual cases but added that the process is not subject to influence. “Any third party is free to express support for a pardon request, and those letters are part of the executive clemency file,” the spokeswoman said. “The title or position of the third party who expresses his support does not play a role in the review process.”
A ProPublica analysis of presidential pardons published Sunday revealed a pattern of racial disparities in pardon awards. The review found that white applicants were nearly four times as likely to receive pardons as all minorities combined. Congressional influence did not account for the racial disparity.
Of the 54 applicants with congressional support for whom ProPublica was able to determine race, 47 were white, five were black and two were Hispanic.
I am not at all surprised to see data confirming the well-known anecdotes of prominent politicians playing a prominent role in helping a pardon applicant. Indeed, I would be much more shocked if the ProPublica research revealed that politicians and politics had little impact on this process.
I find a bit curious the assertion in this piece that "[c]ongressional influence did not account for the racial disparity" in clemency grants given the subsequent indication that congressional support was very disproportionately brought to bear on behalf of white applicants. I assume ProPublica sought to control for congressional support when it "ran" the race data, but I wonder whether the intersection of congressional support AND criminal history AND socio-economic realities may together help explain some of the racial disparity data.
I will comment more on the ProPublica reports after I have a bit more time to consume and review all the data and extraordinary documents that appear on the web now. But nothing I have seen so far has change my long-standing view — which I have expressed on this blog and in a recent law review article — that there ought to be a federal clemency commission set up to be entirely distinct from the Justice Department with the responsibility and obligation to recommend a (large?) number of cases to the President for which clemency ought to be granted. I have long thought the federal pardon process (and not just the result) was badly broken, and these new reports about the results only confirm my views here.
When might media (or GOP opponents) discuss Newt Gingrich's "Right on Crime" positions?
Today's USA Today has this new piece on the GOP presidential campaign headlined "All eyes on Newt Gingrich in GOP race." The piece would be misleading if it were titled "Eyes looking at all of Newt," however, because there has not been yet any mention — let alone any extended examination — of Newt Gingrich's prominent position within the important new "Right on Crime" organization.
Regular readers may recall my emphasis on Gingrich's active and vocal involvement in the Right on Crime Campaign a little more than a year ago, and my excitement when he stated explicitly in a co-authored commentary that the US "can no longer afford business as usual with prisons" and that the "criminal justice system is broken, and conservatives must lead the way in fixing it." My hope was that, especially as Gingrich announced his interest in the presidency, that Gingrich's role in "Right on Crime" would foster a more dynamic and politically balanced discussion of a number of important crime and justice issues in the presidential campaign. So far, though, despite Gingrich's rising poll numbers, the "Right on Crime" campaign has not even made a blip on the media radar. (I have not seen any new media discussion of these matters; this post is meant as a criticism of not just the MSM on this front.)
Regular readers are likely already tired of hearing me whine about the failure of the GOP candidates to engage with any crime and punishment issues on the campaign trail. But when Bachmann and Cain were flavors of the month, this was more understandable because of a lack of a real record on these issue. But Gingrich not only has a record, he has made important (and controversial?) comments on these fronts that should be getting at least some media attention as part of Newt-mania.
Perhaps Gingrich's opponents will be the one who see an opportunity here. I would certainly not put it past Romney or others to try out some old "soft on crime" rhetoric if/when they decide they cannot get other attacks to stick in the weeks ahead. Sadly, because of the media's failure to cover these important public policy matters, I am almost hoping that they do.
Some recent and older related posts on Gingrich and the modern politics of sentencing issues:
- Newt Gingrich says "criminal justice system is broken, and conservatives must lead the way in fixing it"
- Will Newt Gingrich's statements about a "broken" criminal justice system get attention as he launches a run for President?
- New GOP front-runner Newt Gingrich talking up death penalty for drug kingpins
- "Right on Crime: The Conservative Case for Reform" officially launches
- "NAACP, right-wing foes get friendly" when it comes to prison costs
- "Conservatives latch onto prison reform"
- When and how will state GOP leaders start cutting expensive criminal justice programming?
- New poll reports that large majority of Americans consider "War on Drugs" a failure
- Can GOP "Pledge to America" be read to suggest drawing down federal involvement in the drug war?
- What does the tea party movement have to say about taxing and spending on the death penalty, the drug war and mass incarceration?
December 4, 2011
"Path to execution swifter, more certain in Va."
The title of this post is the headline of this lengthy article, which gets started this way:
Serving life in prison without possibility of parole, Robert C. Gleason opted to die by execution instead of old age and is Virginia's newest death-row inmate.
He earned the distinction by killing fellow prisoners in the state most likely to grant his wish. Since executions resumed in 1977, nearly three out of four condemned prisoners in Virginia have been put to death, the nation's highest rate.
Texas, which leads the United States in number of executions, is second to Virginia, carrying out less than half its death sentences. In most death-penalty states, the ratio is fewer than 1 in 10.
While Virginia's record is clear, its causes and implications are in dispute.
Authorities say Virginia's capital-murder law was tightly written and that trial and appeal courts here do a better job than elsewhere; critics argue Virginia trials have plenty of errors and that unlike elsewhere, appeals courts fail to catch them.
"I think the answer is that there is a little truth in both views," said Richard J. Bonnie, director of the Institute of Law, Psychiatry and Public Policy at the University of Virginia. "Virginia's law was indeed more tightly drafted, but post-conviction review is less aggressive than in other states."
Insightful commentary questions why Blago is getting huge break from federal prosecutors
Alison Siegler, who directs the Federal Criminal Justice Clinic at the University of Chicago Law School (and who once honored me with an invite to her class there), has this fantastic new op-ed in the Chicago Tribune, which is headlined "The advantage of being Blago." Here is the text, every line of which merits emphasis:
Rod Blagojevich is a lucky man. He is lucky that the U.S. attorney's office is asking U.S. District Judge James Zagel to send him to prison for only 15 to 20 years. He is lucky that the prosecution is not asking for him to do 30 years to life in prison, which is the amount of time called for by federal sentencing guidelines — the laws that set punishment in federal cases based on the severity of the crime.
Blagojevich is especially lucky that he is not my recent client, a drug-addicted man who grew up on the South Side and pleaded guilty to selling two ounces of drugs to a government informant for $200. I represented this man, and the same U.S. attorney's office asked Zagel to follow the sentencing guidelines strictly and send him to prison for up to 27 years. Luckily for Blagojevich, the prosecutors filed a motion asking for a far lighter sentence for the former governor who, they themselves contend, deeply damaged the integrity of the political system by trying to hand over a U.S. Senate seat in exchange for $1.5 million in donations and then blatantly lied about his conduct on the stand.
The U.S. attorney's office is treating Blagojevich shockingly differently than it treats poor, minority defendants charged with less serious crimes. I have been representing indigent defendants in Chicago for nearly a decade, and in almost every one of the hundreds of cases I have litigated, the U.S. attorney's office has asked for the guidelines sentence, which is usually quite harsh. But in Blagojevich's case, the prosecution has asked the judge to chop the guidelines sentence in half.
It might be different if the prosecution's request for a sentence below the guidelines were supported by facts about Blagojevich or his offense that merit leniency. But the prosecution argues strenuously that Blagojevich's personal circumstances do not warrant mercy and that his crimes were heinous and driven by greed. They wax rhapsodic about his "extensive corruption of high office." And then they inexplicably request a sentence that is fully 10 to 15 years lower than the sentence they would request if this were an ordinary case.
Perhaps the prosecution's request in the Blagojevich case is driven by a sense that the guidelines sentence is not always the just sentence. If so, the prosecutors should also take a hard look at their practice of requesting guidelines sentences for indigent defendants, and should question whether it is fair to demand that a man spend up to 27 years in prison for selling a small amount of drugs to their own informant.
Otherwise, the prosecution's sentencing request is not fair. The inescapable message the request sends is that the lives of privileged defendants who have been given every opportunity and have nevertheless flagrantly violated the public's trust are worth more than the lives of impoverished defendants who have caused far less societal harm. This message undermines the public's faith in the fairness of the system and reinforces the perception that there are two very different kinds of justice, one for the haves and the other for the have-nots.
Before sentencing day(s) this coming week, I will have a series of addition posts that will discuss some of the additional insights we can and should take away from the run up to Blago judgment day.
"Presidential Pardons Heavily Favor Whites"
The title of this post is the headline of this main article in a new investigative report from Pro Publica. The piece is the lead story in this series of important new articles under the banner "Presidential Pardons: Shades of Mercy." Here is the start of the lead piece:
White criminals seeking presidential pardons over the past decade have been nearly four times as likely to succeed as minorities, a ProPublica examination has found.
Blacks have had the poorest chance of receiving the president's ultimate act of mercy, according to an analysis of previously unreleased records and related data.
Current and former officials at the White House and Justice Department said they were surprised and dismayed by the racial disparities, which persist even when factors such as the type of crime and sentence are considered.
"I'm just astounded by those numbers," said Roger Adams, who served as head of the Justice Department's pardons office from 1998 to 2008. He said he could think of nothing in the office's practices that would have skewed the recommendations. "I can recall several African Americans getting pardons."
The review of applications for pardons is conducted almost entirely in secret, with the government releasing scant information about those it rejects.
ProPublica's review examined what happened after President George W. Bush decided at the beginning of his first term to rely almost entirely on the recommendations made by career lawyers in the Office of the Pardon Attorney.
The office was given wide latitude to apply subjective standards, including judgments about the "attitude" and the marital and financial stability of applicants. No two pardon cases match up perfectly, but records reveal repeated instances in which white applicants won pardons with transgressions on their records similar to those of blacks and other minorities who were denied.
Senior aides in the Bush White House say the president had hoped to take politics out of the process and avoid a repetition of the Marc Rich scandal, in which the fugitive financier won an eleventh-hour pardon tainted by his ex-wife's donations to Democratic causes and the Clinton Presidential Library.
Justice Department officials said in a statement Friday that the pardon process takes into account many factors that cannot be statistically measured, such as an applicant's candor and level of remorse.
"Nonetheless, we take the concerns seriously," the statement said. "We will continue to evaluate the statistical analysis and, of course, are always working to improve the clemency process and ensure that every applicant gets a fair, merit-based evaluation."
Bush followed the recommendations of the pardons office in nearly every case, the aides said. The results, spread among hundreds of cases over eight years, heavily favored whites. President Obama -- who has pardoned 22 people, two of them minorities -- has continued the practice of relying on the pardons office.
"President Obama takes his constitutional power to grant clemency very seriously," said Matt Lehrich, a White House spokesman. "Race has no place in the evaluation of clemency evaluations, and the White House does not consider or even receive information on the race of applicants."
I will have a lot of opinion about this important series of pieces in some later posts after I get a chance to consume of the information that is hear. I will begin (for the benefit of commentor Paul and others) by suggesting that this report should prompt the Justice Department to commit itself to understanding the troublesome disparities evident in the exercise of executive sentencing discretion before it spends any more time complaining about the post-Booker exercise of judicial sentencing discretion.