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June 14, 2013

Sixth Circuit calls for briefing on Eighth Amendment in Blewett crack sentencing retroactivity case

In this post a month ago, I first reported that a majorty of a Sixth Circuit panel in US v. Blewett, No. 12-5226 (6th Cir. May 17, 2013) (available here), used equal protection principles to justify giving the new crack statutory sentencings levels of the Fair Sentencing Act retroactive effect.  In that post, I noted that was unsure that a "Fifth Amendment equal protection theory provides a strong constitutional foundation" for Blewett, but I also suggested, "in the wake of the passage of the Fair Sentencing Act and the USSC's implementation of its new 18-1 crack guidelines retroactively, that a proper application of the Eighth Amendment could and should provided a reasoned and reasonable basis to give full retroactive effect to all the provisions of the FSA."  In turn, I was not at all surprised when the government, as reported here, assailed the majority opinion in Blewett when seeking en banc review with the full Sixth Circuit a couple of weeks ago.

I am not quite pleased and excited to learn that the Sixth Circuit now seems interested in the Eighth Amendment as I am in Blewett, as evidenced by the text of a letter sent yesterday to counsel in Blewett

RE: Case Nos. 12-5226/5582

USA v. Cornelius D. Blewett and Jarreous J. Blewitt

Dear Counsel:

In connection with the prosecution’s Petition for Rehearing En Banc, the United States should submit a brief of not more than fifteen (15) pages by June 28, 2013, addressing whether the Blewetts’ punishment in this case based on a 100-to-1 ratio of crack to powder cocaine is constitutionally disproportionate in violation of the Eighth Amendment’s Cruel and Unusual Punishments Clause.  See Solem v. Helm, 463 U.S. 277, 290 (1983) (striking down imposition of sentence of life without parole for passing a worthless check because “a criminal sentence must be proportionate to the crime for which the defendant has been convicted”).  The Blewetts should also submit a brief of not more than thirty (30) pages in response to the Petition for Rehearing En Banc filed by the United States by June 28, 2013, that includes both their response to the Petition for Rehearing and their argument concerning the Eighth Amendment issue stated above.

Download Blewett Letter

I had been assuming the Sixth Circuit was going to grant en banc review in Blewett, and I had been gearing up to author an amicus brief on Eighth Amendment issues once that proceeding was set up and a briefing schedule set. And while I am now so very pleased to discover that the Sixth Circuit has ordered the parties to brief Eighth Amendment issues as it considers the government's en banc petition, I am now uncertain as to whether I can and should try to file my friendly thoughts on this topic with the Sixth Circuit later this month. Thoughts, dear readers?

Related posts on Blewett:

June 14, 2013 in Drug Offense Sentencing, New crack statute and the FSA's impact, New USSC crack guidelines and report, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

"Records Show Nearly 500 Years In Prison Time For Medical Marijuana Offenses"

The title of this post is the heading of this notable new entry on The Weed Blog, which gets started this way:

In spite of growing public support for medical marijuana, concern about overreach by the U.S. Department of Justice and other federal agencies, and cutbacks in federal spending, the U.S. government’s war on medical marijuana is raging unabated according to a survey of court records by Cal NORML.

On Tuesday, Michigan medical marijuana grower Jerry Duval, a kidney and pancreas transplant patient with severe medical problems, began serving a ten-year sentence in the same prison as the Boston bomber. Duval joins a growing list of defendants in states that allow medical marijuana who have been charged by the Department of Justice for violating federal laws prohibiting medical marijuana.

According to a survey of US court records, news stories, and case reports compiled by Cal NORML (with help from Americans for Safe Access):

• Over 335 defendants have been charged with federal crimes related to medical marijuana in states with medical marijuana laws.

• 158 defendants have received prison sentences totaling over 480 years for medical marijuana offenses. Some 50 are currently in federal prison, while more are waiting to be sentenced or surrender.

• Over 90% of the criminal cases settled to date have resulted in convictions. 10% have been dismissed. A single defendant has been acquitted. Federal law typically prohibits defendants from invoking medical marijuana in their defense.

• 153 medical marijuana cases have been brought in the 4 ¼ years of the Obama administration, nearly as many as under the 8 years of the Bush administration (163).

• Not a single pardon or clemency petition has been granted to a medical marijuana defendant by President Obama or his predecessors.

• One seriously ill defendant, Richard Flor, has died while in federal prison, and two others, Peter McWilliams and Steve McWilliams (no relation) died while being denied access to medical marijuana on bail. Other seriously ill patients who have who have been sentenced to lengthy terms include Dale Schafer, a hemophiliac currently serving 5 years along with his wife Mollie Fry, a cancer patient (pictured above); Vernon Rylee, who served nearly 5 years in a wheelchair (pictured right), and Jerry Duval.

• At least 259 defendants have been charged in California; over 31 in Montana; 6 in Oregon; 15 in Nevada; 12 in Michigan; 2 in Colorado; and 10 in Washington.

A few other recent notable posts on the same blog include the following:

June 14, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

Lots of reasonable debate over the guidelines and reasonable review from Second Circuit judges

With thanks to the readers who alerted me, I wanted to alert everyone else to todays Second Circuit opinion in US v. Ingram, No. 12-1058 (2d Cir. June 14, 2013) (available here).  The per curiam opinion, which affirms a below guideline drug sentence, is not at all notable (and runs only 3 pages). 

But the concurring opinions are both must reads: the first is by Judge Calabresi and runs 14 pages, the second is by Judge Raggi and runs 17 pages to explain why she thinks the prior 14 pages are all washed up.   As a reader put it, the two Second Circuit jurists here "have at it on various psychological, philosophical, and practical matters concerning sentencing under the Guidelines."

June 14, 2013 in Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

"Woman arrested 396 times sentenced to mental health and substance abuse program"

The title of this post is the headline of this notable little local story out of Chicago which provides some more proof concerning the inefficiencies and inefficacies of modern criminal justice systems. Here are the basics:

An Uptown woman who has been arrested 396 times meekly offered her gratitude and apologies to a Cook County judge Monday as she took a plea deal that will send her to a mental health and substance abuse treatment program.

“All of us are reaching out to you and offering you, maybe for the first time in your life, a hand, OK?” Judge Peggy Chiampas told Shermain Miles. “But you’ve got to reach out and grab all of our hands as well.”

Miles, who was dressed in a bright yellow prison jumpsuit, kept her hands behind her back and politely answered Chiampas’ questions. She told the judge, “I just want to thank you.”

“I’m not that person,” said Miles, 51, who has previously been known to shriek in courthouse lockups.

Miles has been at Logan Correctional Center in Lincoln since December.  She’d been released in April 2011 after serving thee years for an armed robbery conviction but was arrested several more times while on parole, triggering her return to prison.

Among the reasons for her later arrests was an alleged attack on Ald. James Cappleman (46th) last summer.  Miles pleaded guilty in that case Monday and in two separate cases of trespassing and drinking alcohol on a public way.

Chiampas sentenced Miles to time served for all three, but she said she only did so because Miles said she’d submit to a mental health evaluation and follow-up treatment, as well as treatment for alcohol abuse, at the Lincoln prison.

A representative from Cappleman’s office attended the hearing, and a prosecutor said the alderman is satisfied with the deal.  Adam Monreal, chairman of the Illinois Prisoner Review Board, also attended the morning hearing but couldn’t immediately say how the deal will affect Miles’ release from prison.

Annoyingly, this story does not explain why or how this woman has managed to get arrested 396 times (and I am actually a little suspect concerning this accounting because it would mean she was getting arrested, on average, at least once a month, every month, of her entire adult life without having faced any serious criminal justice consequences). 

Nevertheless, anyone who gets arrested even dozens of times obviously has major difficulty living as a law-abiding person and likely has mental health and substance abuse problems.  It should not take decades and hundreds of arrests for the criminal justice system to develop some programming that would effectively rehabilitate or more effectively incapacitate a person who is obviously a menace to local law enforcement and perhaps many others.

June 14, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (4) | TrackBack

June 13, 2013

"The Non-Redelegation Doctrine" with post-Booker sentencing in mind

Now available via SSRN is this intriguing new article from F. Andrew Hessick III and Carissa Byrne Hessick, which is titled simply "The Non-Redelegation Doctrine." Here is the abstract, which highlights why this article should be of special interest to sentencing fans:

In United States v. Booker, the Court remedied a constitutional defect in the federal sentencing scheme by rendering advisory the then-binding sentencing guidelines promulgated by the U.S. Sentencing Commission.  One important but overlooked consequence of this decision is that it redelegated the power to set sentencing policy from the Sentencing Commission to federal judges.  District courts now may sentence based on their own policy views instead of being bound by the policy determinations rendered by the Commission.

This Essay argues that, when faced with a decision that implicates a delegation, the courts should not redelegate unless authorized by Congress to do so.  The proposed non-redelegation doctrine rests on both constitutional and practical grounds. Constitutionally, because delegation defines how Congress chooses to perform its core function of setting policy, judicial redelegation raises substantial separation of powers concerns.  Practically, judicial redelegation is bound to affect the substantive policies that are adopted because the policies that the agent adopts depend on the agent’s unique characteristics and preferences.  Although this Essay uses Booker to illustrate the need for the presumption, the presumption would apply equally to the myriad contexts in which Congress delegates its power to make policy and courts have the opportunity to alter that delegation.

June 13, 2013 in Booker and Fanfan Commentary, Booker in district courts, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3) | TrackBack

SCOTUS holds in Davila judicial involvement in pleas subject to harmless error analysis

Via the fine folks at SCOTUSblog, here are the quick highlights from the one sentencing-related opinion handed down by the US Supreme Court this morning:

US v. Davila. Opinion by Ginsburg for the Court. The decision of the Eleventh Circuit is vacated and remanded. There is a concurrence by Justice Scalia that joins part of the opinion and in the judgment; Justice Thomas joins that opinion.

Under the Federal Rules, vacatur of the plea is not in order if the record shows no prejudice to Davila's decision to plead guilty.  This was a case in which the issue was whether there must be an automatic reversal if the judge played any role in the plea bargaining....

Here is the opinion in Davila.

In Davila, the Eleventh Circuit had ruled that automatic reversal was required, which conflicted with essentially everyone else's ruling.  Federal Rule of Criminal Procedure 11 prohibits judges from participating in plea agreements, but another subsection of the rule also provides that a “variance from the requirements” of Rule 11 is “harmless if it does not affect substantial rights,” so this one did not come as a huge surprise.

June 13, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

Arizona prosecutors say they are still planning to try again to get Jodi Arias sentenced to death

As reported in this Reuters article, a "top Arizona prosecutor said on Wednesday that the state still plans to seek the death penalty for convicted murderer Jodi Arias for killing her ex-boyfriend, after a jury deadlocked last month on whether she should be executed." Here is more:
[T]he same eight-man, four-woman jury that convicted Arias of murder and quickly ruled her eligible for the death penalty subsequently failed to reach a consensus as to whether Arias should be executed, prompting a penalty phase mistrial.

The state of Arizona now has the option of retrying the sentencing phase of the trial, which would require a new jury be empanelled. If there is another deadlock, a judge would sentence Arias to natural life in prison, or life with the possibility of parole after 25 years.

Maricopa County Attorney Bill Montgomery told reporters prosecutors would ask a new sentencing jury to do what the previous one could not - put Arias to death. "At this point, we are still preparing to move forward to retry the penalty phase," Montgomery told a news conference.

After the jury failed to reach a unanimous verdict on May 23, Montgomery said that his office would assess its next steps, but was proceeding "with the intent to retry the penalty phase." A status hearing has been scheduled for June 20. A July 18 court date was set to select a new jury in the case.

Recent related posts:

June 13, 2013 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

June 12, 2013

Bipartisan House Overcriminalization Task Force schedules first hearing for June 14

I learned via this NACDL press release that Representative Jim Sensenbrenner Chairman Sensenbrenner has scheduled the first hearing of the Overcriminalization Task Force for this Friday, June 14, 2013, at 9:00 a.m. at 2237 Rayburn House Office Building." Here is more background and details via the release:

On May 7, 2013, The House Committee on the Judiciary voted unanimously to create the “Overcriminalization Task Force of 2013.”  At a press briefing that day, Judiciary Committee and Overcriminalization Task Force leaders expressed agreement on the need to address several important issues, including the erosion of the mens rea (or criminal intent) requirement in federal criminal law, the often unnecessary duplication of state law in the federal code, overincarceration, and the explosion of regulatory offenses that some estimate may now number as high as 300,000, among other issues.  Members also expressed the need to address mandatory minimum sentences.

According to Judiciary Committee Chairman Bob Goodlatte (R-VA), “The task force will be authorized for six months and will be led by Crime, Terrorism, Homeland Security, and Investigations Subcommittee Chairman Jim Sensenbrenner and Ranking Member Bobby Scott.” It will “conduct hearings and investigations and issue a report on overcriminalization in the federal code, as well as possible solutions.”  The task force is made up of five Democrats and five Republicans, and will include Judiciary Committee Ranking Member John Conyers (D-MI) and Chairman Goodlatte as ex-officio members....

The topic of this first hearing is “Defining the Problem and Scope of Overcriminalization and Overfederalization.” [And here are the scheduled witnesses:]

Mr. Steven D. Benjamin, President, National Association of Criminal Defense Lawyers

Mr. John Malcolm, Rule of Law Programs Policy Director, The Heritage Foundation

Mr. William N. Shepherd, Chair, Criminal Justice Section, American Bar Association

The Honorable George Terwilliger, III, Partner, Morgan, Lewis & Bockius LLP

A webcast of the hearing as well as the written testimony of the witnesses will be made available [at this link].

June 12, 2013 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9) | TrackBack

Not surprisingly, early buzz about a possible plea for Cleveland kidnapper Ariel Castro

As reported in this USA Today article, headlined "Lawyer for Cleveland kidnap suspect hopes to avoid trial," an initial court appearance for Ariel Castro is already leading to talk of a possible plea in this high-profile case. Here are the basics:

The man accused of kidnapping and holding three women for a decade pleaded not guilty Wednesday in Cleveland to hundreds of criminal counts, but his lawyer said after the hearing that some of the charges "cannot be disputed" and that he hoped to avoid a trial.

Charges against Ariel Castro, 52, include murder, rape, kidnapping and torture -- and he could face the death penalty. Defense lawyer Craig Weintraub entered the plea in an arraignment that took about one minute. A pretrial hearing was set for June 19....

"We are very sensitive to the emotional strain and impact that a trial would have on the women, their families and this community," Weintraub said after the hearing. "Mr. Castro currently faces hundreds of years in prison with the current charges and it is our hope that we can continue to work towards a resolution to avoid having an unnecessary trial about aggravated murder and the death penalty."

A Cuyahoga County grand jury's 329-count indictment charges Castro, a musician and former school bus driver, with one count of aggravated murder for allegedly terminating one of his captives' pregnancies, 139 counts of rape and 177 charges of kidnapping, seven counts of gross sexual imposition, three counts of felony assault and one count of possession of criminal tools dating from the time of the first woman's disappearance until February 2007.

County Prosecutor Timothy McGinty has said the investigation is still underway. Additional charges could follow in a superseding indictment. The indictment charges Castro as a "sexually violent predator" who committed the murder and rapes in the course of a kidnapping. Those charges are considered aggravating factors that call for stiffer penalties. The murder charge is tied to one victim's fourth pregnancy, the indictment said.

"A not guilty plea at this stage requires the prosecutor to continue to evaluate their case to determine whether medical and forensic evidence can actually support an aggravated murder conviction, for the death of a fetus, and whether the death penalty is warranted," Weintraub said after the hearing.

The County Prosecutor's Capital Review Committee will consider whether prosecutors should seek the death penalty if Castro is convicted. Castro, who was fired last year from his bus driver job, is being held in the Cuyahoga County jail on $8 million bail....

Police allege in the indictment that Castro chained Knight to a pole in the basement and raped her the day after he took her captive. He allegedly taped Berry's legs and mouth, sexually assaulted her after she tried to escape, chained her to a pole in the basement with a motorcycle helmet on her head, chained her to a radiator in the bedroom, and attempted to strangle her with a vacuum cleaner cord, the indictment says. He also allegedly chained and assaulted DeJesus.

Recent related posts:

June 12, 2013 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (12) | TrackBack

"What the Sentencing Commission Ought to Be Doing: Reducing Mass Incarceration"

The title of this post is the title of this notable new article by Judge Lynn Adelman available via SSRN.  With three new members of the US Sentencing Commission, the piece is especially timely, and here is the abstract:

The United States presently incarcerates about 2.3 million people.  We imprison people at a higher rate than any other country and now house more than a quarter of the world’s prisoners.  Incarcerating so many people raises important moral issues because the burden of incarceration is borne largely by minorities from impoverished inner city communities. Further, those incarcerated suffer detriments that go far beyond the legislated criminal penalty and doom many offenders to a continuing cycle of re-incarceration. Over-incarceration is also very costly.

The federal government contributes significantly to this problem.  Every week it locks up a record number of people, presently about 216,000.  While some states have recently reduced their prison populations, the federal prison population continues to increase.  The principal reason for this is federal sentencing law. Since Congress enacted the Sentencing Reform Act (“SRA”) creating the Sentencing Commission and directing it to establish sentencing guidelines, the average federal sentence has more than doubled.  Federal prisons are now at 138% of capacity and consume an ever-increasing share of the federal criminal justice budget.

There are only two ways that we can reduce the prison population: by sending fewer people to prison and imprisoning people for shorter lengths of time.  Many observers believe that the sentences called for by the federal sentencing guidelines, which were mandatory until 2005 when the Supreme Court decided United States v. Booker and made them advisory, are too severe and could be significantly reduced without endangering public safety.  The Commission, however, has shown no interest in making guideline sentences less harsh. Rather, its principal concern is that since Booker judges are imposing too many below guideline sentences and thereby creating disparity.  Thus, it recently asked Congress to require sentencing judges to give additional weight to the guidelines and provide additional justification for sentences varying substantially from the guidelines, and to require appellate courts to presume the reasonableness of guideline sentences and to strictly scrutinize sentences based on policy disagreements with the guidelines.  These restrictions would, of course, increase the federal prison population.

My essay argues that it serves no useful purpose for the Commission to continue to make its top priority curtailing judicial discretion in the name of reducing disparity.  I contend not only that the system created by the SRA and the guidelines failed but that any system principally designed to reduce disparity will fail.  I argue that, instead of attempting to curtail judicial discretion, the Commission should focus on the problem of over-incarceration.  The Commission is statutorily authorized and institutionally well-positioned to address this problem and, by doing so, it could have a positive impact on the entire American criminal justice system.  I propose that the Commission take such actions as modifying the guidelines to expand the use of probation, reducing the severity of numerous guidelines, developing a release program for elderly prisoners, lobbying Congress regarding mandatory minimum sentences, calling public attention to over-incarceration and others.  I also contend that if the Commission is intent upon reducing disparity, the best way to do so is by making the guidelines less severe and thus making it more likely that judges will follow them.

Some recent related posts:

June 12, 2013 in Federal Sentencing Guidelines, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (20) | TrackBack

June 11, 2013

Notable capital habeas echo from Firth Circuit after complaint about Judge Jones

As reported in this local piece, headlined "Chief Judge: New Panel Will Be Assigned to Consider Death Row Appeal; Execution still slated for tomorrow," there has now been at least one procedural consequence of the resent complaint filed against Fifth Circuit Judge Edith Jones concerning her comments at a law school about the operation of the death penalty.  Here are the basics:

The chief judge of the 5th U.S. Circuit Court of Appeals this afternoon ordered [via this panel ruling] a new three-judge panel of the court to be assigned to review the case of Texas death row inmate Elroy Chester who argues that comments made by Judge Edith Jones, detailed in a complaint filed last week with the court, indicate she cannot fairly rule in his case.

Whether Chester will be executed as planned, tomorrow night, June 12, is now in limbo. Chester was sentenced to die for the 1998 death of a well-liked Port Arthur fireman who he killed as part of a months-long crime wave. There is no doubt Chester is guilty of the crime, but there remains doubt about whether he is mentally retarded. If so he would be barred from execution under a 2002 U.S. Supreme Court ruling that the practice violates the constitutional ban on cruel and unusual punishment.

To date, Chester's appeals on this point have been denied. Although experts, and even the Texas Court of Criminal Appeals, have agreed that Chester has a low IQ and some deficits in adaptive functioning – two points that clinicians use to determine intellectual disability – the courts (including the CCA) have nonetheless determined that he is not too disabled to be executed. The nature of his crimes and other non-scientific factors upon which the Texas courts have relied to make such determinations are not unreasonable, the Fifth Circuit ruled in 2012.

That ruling was penned by the court's then-Chief Judge Edith Jones about whom a serious complaint of misconduct was filed by a handful of civil rights groups, with the Fifth Circuit's current Chief Judge Carl Stewart. The complaint alleges that Jones made a number of racist and biased comments during a lecture on the death penalty she gave at the University of Pennsylvania School of Law in February....

In response to the complaint, filed June 4, Chester's attorney, Alaska-based Susan Orlansky filed a motion with the Fifth Circuit to stay Chester's execution and to have a new three-judge panel review his previous appeal to the court – or, in the alternative, to have his execution stayed until the investigation into the complaint about Jones' behavior could be resolved. "The Court should not permit Mr. Chester to be executed amid troubling questions about the actual or apparent partiality of the judge who cast the deciding vote [denying his appeal] and [who] authored the opinion in his case."

Tuesday afternoon, Chief Judge Stewart agreed that a new panel should be constituted, but declined to stay tomorrow's execution – leaving three newly-assigned judges a little more than 24 hours to decide whether Chester's previous appeal should be revisited.

In determining that a new panel should be appointed, Stewart noted not only that Jones was subject to a misconduct complaint that raises "questions about the impartiality of the judge as respects petitioners like [Chester] and his underlying claims," Stewart wrote also that his duty to review that complaint gives him a "substantial role" in considering whether it should go forward. The third member of the panel, Judge James Dennis, is also placed an an odd conflicting position because the complaint against Jones also raises an issue about her as it pertains to an ugly episode during a 2011 oral argument during which she slams her hand on a desk and tells Dennis to "shut up" as he is questioning a lawyer about the case at bar.... "Given these extraordinary circumstances, the panel has concluded that another panel must be assigned to consider the pending motions," Stewart wrote today, though he declined to issue a stay of tomorrow night's slated execution, which would make Chester the 499th inmate put to death in Texas since reinstatement of the death penalty.

In a separate opinion, Dennis concurred with Stewart's decision to move the case to three different judges, but opined that the court should also stay the execution "in order to give the new panel adequate time to consider whether to recall the mandate and take further action in this case," he wrote. "If this court ultimately concludes that Chester's motion to recall the mandate is without merit, no irreparable harm will have been done to the state and the execution can be rescheduled," he continued. "Unless a temporary stay of the execution is granted, however, the court may be unable to give the issues presented the deliberate and judicious attention they deserve before the execution takes place. Chester's execution, of course, will moot those issues and any constitutional injury to his rights will be irreparable."

Recent related posts:

UPDATE:  As reported in this local piece, Elroy Chester was executed by the state of Texas on Wednesday June 12.

June 11, 2013 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23) | TrackBack

So far in 2013, more investment in cops means less homicides in Chicago

As reported in this interesting front-page New York Times article, headlined "Chicago Tactics Put Major Dent in Killing Trend," it seems Chicago is so far have measurable success in 2013 with a notable form of "hot spot" policing. Here is how the lengthy article begins:

A year after this city drew new attention for soaring gun violence and gang bloodshed, creating a political test for Mayor Rahm Emanuel in President Obama’s hometown, Chicago has witnessed a drop in shootings and crime. Killings this year have dipped to a level not seen since the early 1960s.

So far in 2013, Chicago homicides, which outnumbered slayings in the larger cities of New York and Los Angeles last year, are down 34 percent from the same period in 2012. As of Sunday night, 146 people had been killed in Chicago, the nation’s third-largest city — 76 fewer than in the same stretch in 2012 and 16 fewer than in 2011, a year that was among the lowest for homicides during the same period in 50 years.

In recent months, as many as 400 officers a day, working overtime, have been dispatched to just 20 small zones deemed the city’s most dangerous. The police say they are tamping down retaliatory shootings between gang factions by using a comprehensive analysis of the city’s tens of thousands of suspected gang members, the turf they claim and their rivalries. The police also are focusing on more than 400 people they have identified as having associations that make them the most likely to be involved in a murder, as a victim or an offender.

As Mr. Emanuel, who has said he intends to run for re-election, begins the second half of his first term, it is unclear whether the months of lessened violence will generate a lasting trend, particularly given a spring of rainy, chilly weather here that some experts say may have kept people off the streets and contributed to the relative calm.

Homicides have also decreased in New York, by more than 22 percent as of early this month, and in Los Angeles, by more than 17 percent.

“It’s good, but not good enough,” Mr. Emanuel said in an interview of the city’s improving homicide statistics. He added that a parent had approached him in one of the neighborhoods now saturated with police officers, saying she had started to feel comfortable allowing her child to walk to school. “That to me is the biggest, most important, most significant measure — that a mother feels comfortable and confident enough where she didn’t in past years to have her child walk to school.”

Critics question whether the city can continue to pay for the added police presence. By the end of April, $31.9 million of the $38 million set aside in the city budget for police overtime for the year had been spent, city records show.

Leaders of the police union, who describe some of the current efforts as “smoke and mirrors,” caution that the dismal statistics of 2012 are being used to paint a falsely upbeat picture of 2013, and say they doubt such intense policing efforts are financially sustainable in any major city without expanding the force.

“It seems a little soon to know whether this is a long-term trend,” said Jens Ludwig, director of the University of Chicago Crime Lab. “I think everyone in Chicago hopes it is very much a trend. I wouldn’t pop the Champagne yet, but I’m keeping my fingers crossed.”

In some of the most crime-ridden neighborhoods — even those where statistics suggest clear improvement — some residents say they feel as unsafe as ever, and worry that the closing this fall of the largest number of elementary schools in recent memory may force schoolchildren to venture down blocks controlled by gangs to get to new schools.

Some related posts on modern crime rates, especially in urban areas: 

June 11, 2013 in National and State Crime Data, Offense Characteristics | Permalink | Comments (2) | TrackBack

Celebrity injustice?: NFL player Chad Johnson gets 30-days in county jail for lawyer butt pat

0610-chad-johnson-video-launch-1As reported in this CNN piece, "Butt pat lands former NFL star Chad Johnson in jail," a low-level sentencing proceeding involving a high-profile defendant in Florida state court has become interesting fodder for debating courtroom decorum and celebrity justice. Here are the intriguing details:

As an NFL player, Chad Johnson patted a lot of men on the butt when he liked their work, but on Monday, defendant Chad Johnson found out that one Florida courtroom was not the place to play that game.

After Johnson patted his lawyer on the rear, Judge Kathleen McHugh rejected Johnson's plea to a probation violation in the domestic violence case involving Johnson and his then-wife, Evelyn Lozada. Johnson was arrested in May for not meeting with his probation officer and was in court Monday to enter a plea.

After he was asked if he was pleased with his attorney, the former wide receiver once known as "Chad Ochocinco" gave his lawyer, Adam Swickle, a gentle pat on the rear.

McHugh was furious when people in the audience laughed. "There's nothing funny about what's going on here today," she told Johnson.

Johnson, 35, replied that he wasn't laughing. Then McHugh said, "I don't think anything's funny about it, Mr. Johnson. This isn't a joke."

Johnson said he didn't do it as a joke. Swickle agreed, saying: "I don't think it was done as any disrespect to the court. I don't think he meant to get a reaction from the court room, judge."

The judge told Johnson she wouldn't accept a plea deal that involved only community service and more anger management counseling. Instead, she sentenced him to 30 days in jail and tacked three months onto his one-year probation, which would have ended in September.

Johnson seemed resigned to his fate. "Love me through the good and the bad because I'm gone love you regardless... See you in 30... " he tweeted later.

As I write this post, I am hearing Skip Bayless and Stephen A. Smith on First Take yelling at each other about sentencing practices, race, gender, incarceration and courtroom activities.  Given that there is this video of what went down (with the key event just before the one-minute mark, and the judge's (over?)reaction just before the two-minute mark), I hope readers will provide their own takes on this notable example of celebrity sentencing.  

June 11, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (29) | TrackBack

Documenting problems with using electonic tracking for crime control in Colorado

The Denver Post recently published this lengthy article headlined "Electronic monitoring of Colorado parolees has pitfalls," which documents that the benefit GPS tracking may depend on who monitors the monitoring.  Here are exceprts:

One sex-offender parolee hooked his GPS tracking device to his dog's collar so he could consort with underage girls and collect firearms, drugs and ammunition, police say.

Another parolee disappeared from his motel the day he was tethered to an electronic monitor.  He now is charged with raping two women and attempting to rape another.  A third kept unplugging his monitoring device and ignored warnings that he stop moving without approval. Authorities now believe he killed a 59-year-old man at a motel.

Well before parolee Evan Ebel tore off his ankle bracelet in March and allegedly killed two people, including Colorado corrections chief Tom Clements, the state's electronic-monitoring system showed signs of trouble.  A Denver Post review of parolee cases and monitoring data from October to April found that serious alerts sometimes went unheeded until it was too late, even as the system generated thousands of false and minor notifications.

Colorado's most dangerous parolees are outfitted with high-tech equipment that is supposed to keep a close watch on their whereabouts.  Monitors are strapped to their ankles and receivers installed in their residences.  In the most serious sex-offender cases, parolee movements are tracked by a GPS system.

But problems arise.  Batteries run down.  Plugs get ripped from wall sockets.  The systems go dark.  The Post found several cases in which parole officers responded slowly as parolees went off the grid and allegedly committed new violent crimes....

Tim Hand, the state's director of parole, requested an audit by the National Institute of Corrections, a U.S. Department of Justice agency, following the Ebel case.  Hand has not talked publicly since being placed on administrative leave last month, but in an interview in April, he said electronic monitoring is a challenge.

"The public thinks we put an ankle bracelet on and everything is fine, but the electronic monitoring is just a tool," Hand said. "It's better, in my view, than not having that tool, but it doesn't mean that offender can't cut it off and run away. It doesn't mean we're going to be able to control that offender's every move."...

Under the state's new rules, when a tamper alert occurs, parolees will be required to stay at their residences until parole officials can visit with them.  Parole officers, who previously had the discretion to respond on their own time frame, will be required to visit a parolee's home within 24 hours after a tamper alert to decide whether an arrest warrant is needed.

Officials also plan later this month to submit a $600,000-a-year plan to legislative leaders for a new parole unit to track down absconders.  In the past, those roundups occurred on an ad-hoc basis using overtime payments to parole officers, with the assistance of local law enforcement.  There are currently more than 800 Colorado parole absconders....

The data showed that a team of 212 parole officers had to respond to nearly 90,000 alerts and notifications generated by the electronic monitoring devices in the six months reviewed.

Carl Sagara, a past deputy director of parole and community corrections in Colorado, said he suspects that such high volume quickly can become overwhelming to parole officers. "These guys come into the office in the morning, and they have got 30 guys on electronic monitors, and the computer has so much information on all these guys, and the parole officers just go, 'Holy smokes,' " Sagara said.

In addition, many electronic-monitoring programs throughout the nation aren't staffed appropriately, said George Drake, a consultant who has worked on improving the systems. "Many times when an agency is budgeted for electronic-monitoring equipment, it is only budgeted for the devices themselves," Drake said. "That is like buying a hammer and expecting a house to be built. It's simply a tool, and it requires a professional to use that tool and run the program."

He added that programs also can get out of control if officials don't develop stringent protocols for how to respond to alerts and don't manage how alerts are generated. "I see agencies with so many alerts that they can't deal with them," Drake said. "They end up just throwing their hands up and saying they can't keep up with them."

June 11, 2013 in Criminal Sentences Alternatives, Reentry and community supervision, Technocorrections, Who Sentences? | Permalink | Comments (7) | TrackBack

June 10, 2013

"A Conservative Case for Prison Reform"

The title of this post is the title of this op-ed appearing in today's New York Times and authored by Richard Viguerie, the chairman of ConservativeHQ.com. Here are excerpts:

Conservatives should recognize that the entire criminal justice system is another government spending program fraught with the issues that plague all government programs.  Criminal justice should be subject to the same level of skepticism and scrutiny that we apply to any other government program.

But it’s not just the excessive and unwise spending that offends conservative values. Prisons, for example, are harmful to prisoners and their families. Reform is therefore also an issue of compassion. The current system often turns out prisoners who are more harmful to society than when they went in, so prison and re-entry reform are issues of public safety as well.

These three principles — public safety, compassion and controlled government spending — lie at the core of conservative philosophy.  Politically speaking, conservatives will have more credibility than liberals in addressing prison reform.

The United States now has 5 percent of the world’s population, yet 25 percent of its prisoners.  Nearly one in every 33 American adults is in some form of correctional control. When Ronald Reagan was president, the total correctional control rate — everyone in prison or jail or on probation or parole — was less than half that: 1 in every 77 adults.

The prison system now costs states more than $50 billion a year, up from about $9 billion in 1985.  It’s the second-fastest growing area of state budgets, trailing only Medicaid. Conservatives should be leading the way by asking tough questions about the expansion in prison spending over the past three decades....

Too many offenders leave prisons unprepared to re-enter society. They don’t get and keep jobs. The solution lies not only inside prisons but also with more effective community supervision systems using new technologies, drug tests and counseling programs.  We should also require ex-convicts to either hold a job or perform community service.  This approach works to turn offenders from tax burdens into taxpayers who can pay restitution to their victims and are capable of contributing child support....

Right on Crime exemplifies the big-picture conservative approach to this issue.  It focuses on community-based programs rather than excessive mandatory minimum sentencing policies and prison expansion.  Using free-market and Christian principles, conservatives have an opportunity to put their beliefs into practice as an alternative to government-knows-best programs that are failing prisoners and the society into which they are released....

By confronting this issue head on, conservatives are showing that our principles lead to practical solutions that make government less costly and more effective. We need to do more of that.  Conservatives can show the way by impressing on more of our allies and political leaders that criminal justice reform is part of a conservative agenda.

Some recent and older related posts:

June 10, 2013 in Elections and sentencing issues in political debates, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8) | TrackBack

"High Federalism: Marijuana Legalization and the Limits of Federal Power to Regulate States"

The title of this post is the title of this new paper by David Schwartz which I just noticed via SSRN.  Here is the abstract:

The conflict between state marijuana legalization and the blanket federal marijuana prohibition of the Controlled Substances Act ("CSA") has created a federalism crisis in which the duties of state officials to adhere to state or federal law is unclear.  Current federalism doctrine cannot even tell us whether or not a local police officer who encounters a person in state-authorized possession of marijuana must arrest the person and seize the marijuana.

The two most clearly applicable federalism doctrines -- the Tenth Amendment anti-commmandeering doctrine and the doctrine of federal preemption of state law under the Supremacy Clause -- offer only unsatisfactory answers.  Anti-commandeering doctrine is incapable of telling us whether a federally imposed duty to arrest and seize the marijuana possessor is impermissible commandeering, permissible "general applicability," or permissible preemption, let alone answer the more complex federalism questions posed by state marijuana legalization.  Alternatively, a strong preemption approach, while capable of producing consistent results in theory, would entail the virtual abandonment of the anti-commandeering doctrine and of judicial enforcement of federalism more generally, while at the same time violating important premises of the "political safeguards of federalism" theory.

The article argues that courts should pursue a middle path by applying a rigorous presumption against commandeering when considering the obligation of state officials to adhere to federal laws.  This approach is faithful to consensus principles of federalism that should command the agreement of judges and academics on both sides of the judicial versus political safeguards of federalism debate.  A presumption against commandeering, when applied to the CSA, requires that state officials be afforded broad latitude to enforce their states' legalization laws and have no compelled obligations to enforce federal law beyond a duty to refrain from active obstruction of federal officers.  The extent of Congress's power to command state official compliance with the CSA can be considered if and when such an amendment to the CSA is under serious congressional consideration" something that may never occur given the current political trend.

June 10, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

Guidelines are "the lodestone" of federal sentencing (as well as "the starting point and the initial benchmark")

225-lodestone-magnetThe title of this post is drawn from the key word in a key paragraph that captured my attention in what is otherwise a straight-forward opinion by the Supreme Court today in Peugh (basics here).  Here is the context from a paragraph that effectively summarizes the conclusions of the Peugh majority opinion per Justice Sotomayor:

"The federal system adopts procedural measures intended to make the Guidelines the lodestone of sentencing.  A retrospective increase in the Guidelines range applicable to a defendant creates a sufficient risk of a higher sentence to constitute an ex post facto violation."

Major kudos to Justice Sotomayor for adding a fitting new term to the post-Booker federal sentencing lexicon.  Kudos also to the majority Court for stressing these enduring modern federal sentencing realities in the course of reaching its conclusions:

When Peugh committed his crime, the recommended sentence was 30 to 37 months.  When he was sentenced, it was 70 to 87 months....  Such a retrospective increase in the measure of punishment raises clear ex post facto concerns.  We have previously recognized, for instance, that a defendant charged with an increased punishment for his crime is likely to feel enhanced pressure to plead guilty.  See Carmell, 529 U.S., at 534, n.24; Weaver, 450 U.S., at 32.  This pressure does not disappear simply because the Guidelines range is advisory; the defendant will be aware that the range is intended to, and usually does, exert controlling influence on the sentence that the court will impose....

On the Government’s account, the Guidelines are just one among many persuasive sources a sentencing court can consult, no different from a “policy paper.”  Brief for United States 28.  The Government’s argument fails to acknowledge, however, that district courts are not required to consult any policy paper in order to avoid reversible procedural error; nor must they “consider the extent of [their] deviation” from a given policy paper and “ensure that the justification is sufficiently compelling to support the degree of the variance,” Gall, 552 U.S., at 50.  Courts of appeals, in turn, are not permitted to presume that a sentence that comports with a particular policy paper is reasonable; nor do courts of appeals, in considering whether the district court’s sentence was reasonable, weigh the extent of any departure from a given policy paper in determining whether the district court abused its discretion, see id., at 51.  It is simply not the case that the Sentencing Guidelines are merely a volume that the district court reads with academic interest in the course of sentencing.

And kudos also to Justice Thomas for providing a slightly competing vision of the post-Booker world via passages in his dissent like the following that, I suspect, will end up in many more defense sentencing submissions than government ones:

[T]he Guidelines do not constrain the discretion of district courts and, thus, have no legal effect on a defendant’s sentence.  Second, to the extent that the amended Guidelines create a risk that a defendant might receive a harsher punishment, that risk results from the Guidelines’ persuasive force, not any legal effect....

Petitioner next argues that the Guidelines limit district court discretion because sentences falling outside the Guidelines are more likely to be reversed for substantive unreasonableness.  Brief for Petitioner 25.  I doubt, however, that reversal is a likely outcome when a district judge can justify his sentence based on agreement with either of two Guidelines — the old or the new.  If a district court calculated the sentencing range under the new Guidelines but sentenced the defendant to a below-Guidelines sentence that fell within the range provided by the old Guidelines, it would be difficult to label such a sentence “substantively unreasonable.”  To do so would cast doubt on every within-Guidelines sentence issued under the old Guidelines.

I have long suggested that defense attorneys regularly and in every case calculate, and submit to a sentencing court prior to sentencing, the "old" sentencing ranges that would have applied under the original 1987 version of the federal sentencing guidelines which were first promulgated by the original US Sentencing Commission.  The above-quoted passages from Justice Thomas now would enable sentencing courts to feel confident that a sentence within the range suggested by the 1987 guidelines should nearly always be deemed reasonable.

June 10, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

SCOTUS concludes Ex Post Facto Clause still limits application of new guidelines after Booker

Thanks to the fine folks live-blogging at SCOTUSblog, I can provide this summary report (with a few edits) of the one big sentencing ruling handed down by the US Supreme Court this morning:

Justice Sotomayor for the Court in Peugh v. United States....

The decision of the Seventh Circuit is reversed, the case is remanded.  The Court is splintered.  Justice Sotomayor delivers the opinion of the Court except for one part. The Ex Post Facto Clause is violated when a defendant is sentenced under guidelines promulgated after he committed his acts, and the new version of the guidelines provides for a higher sentence than the one in effect at the time he committed his act.

Justice Sotomayor's opinion is for the Court except for a discussion about the policies underlying the Ex Post Facto Clause.  It's another case where Justice Kennedy joins the more liberal members of the Court.

Justice Thomas dissents, joined by the Chief and Scalia and Alito. Justice Alito dissents, joined by Justice Scalia.  Justices Ginsburg, Breyer, and Kagan join all of the Sotomayor opinion; Justice Kennedy declines to join Part III-C.

The big fight in the case was whether the Sentencing Guidelines are important enough to trigger Ex Post Facto review given that they are no longer binding -- the majority says they are....

The part of the Sotomayor opinion that Kennedy does not join is a response to the argument by the government and the dissent that the Ex Post Facto Clause is not implicated by this case.  The ruling will be significant to the ability of courts to apply tougher new sentencing guidelines to pending cases.  It is also a strong reaffirmation of the Ex Post Facto Clause.

The full opinions in Peugh are available here.  The opinion for the Court per Justice Sotomayor runs 20 pages, and the main dissent per Justice Thomas is 14 pages. 

Kudos to the Court in keep this one relatively brief, as I suspect every sentence from the Justices in this case could end up having some impact on the operation of the post-Booker federal sentencing world.  And once I get some time to read these opinions, I will do some follow-up posts on whether Peugh passes the smell test (get it..., I know, pretty lame).

June 10, 2013 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (7) | TrackBack

With two opinion days this week, any predictions on coming SCOTUS sentencing decisions?

The fine folks at SCOTUSblog report that we will be getting opinions in argued cases from SCOTUS both today and on Thursday, June 13.  With two opinion days this week, and a third of the nine longest pending cases involving sentencing issues, I am inclined to predict there will be at least some notable Supreme Court sentencing action this week.

So, dear reader, before we start getting some SCOTUSblog updates in the next hour, how about some predictions about which opinions we might get this week and what they might now say.  Specifically, I have my eyes firmly fixed for Alleyne (on the Sixth Amendment's application to mandatory minimums), and Descamps (another ACCA application case), and Peugh (concerning ex post facto limits post-Booker application of new guidelines).  

Based on nothing but rank speculation, I will guess/predict that we get Descamps today, Peugh on Thursday, and Alleyne next week.  And, based on my belief that the Supreme Court remains the most pro-defendant appellate court on sentencing issues in the country, I will also guess/predict that the defendant prevails in all three of these cases.

UPDATE We actually ended up getting Peugh on June 10 (discussed here and here), and it was a 5-4 victory for the federal defendant.  Based on the tone and votes and timing of Peugh, I am now starting to think Alleyne and Descamps will come down together, and perhaps not until next week.

June 10, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

June 9, 2013

"New Sesame Workshop film helps children of jailed parents"

ElmoThe title of this post is the headline of this notable new segment which ran this morning on the CBS Sunday Morning show.  Here are excerpts:

A new program is aiming to make kids in crisis streetwise -- "Sesame Street" wise, that is.  Seth Doane reports:

At 24, Francis Adjei is now the head of his household, a role he never imagined having to play. "One day, we're all together having dinner; following day, she's in jail. And we don't know what to do," he said.

Two years ago his mother, Jackie Pokuwaah, A Ghanaian immigrant, was convicted of grand larceny, and is serving a seven-and-a-half-year sentence at a state penitentiary.  Adjei had to drop out of school, and now spends his days managing his siblings' schedules, trying to keep them in school....

"When the police came and took your mom," Doane asked Francis, "did anyone ever explain what it meant to be incarcerated?"

"To the children? No," he replied. "We've never went down that direct path, just kind of been beating around the bush."...

But soon Adjei and his brothers and sisters will find a little help on a familiar street: Sesame Street.

Melissa Dino is in charge of a Sesame Workshop production aimed at helping families like Francis' cope.  She told Doane she was struck by the lack of resources for those with an incarcerated parent.  The new, 30-minute documentary mixes the fictional with real-life.  It will not air on the regular "Sesame Street" show, but will be distributed this week to therapists' offices, schools and prisons.

And there is certainly a built-in audience.  According to the Pew Charitable Trust, there are currently 2.3 million Americans behind bars, the largest prison population in the world, which means one in every 28 kids in the U.S. has a parent in prison.  That's up from one in 125 just 25 years ago.

Some of those 2.7 million minors -- including Francis' sister, Breanna Amankwah -- say they don't like people to know a parent is in prison. "When it comes up in a conversation, I just feel uncomfortable, like, really uncomfortable," she told Doane. "I don't feel like talking. I kind of feel a little stiff, and I don't really feel normal."...

Dino said children sometimes think it's their fault that a parent was incarcerated. "They have difficult, guilty feelings; they have all kinds of feelings. They're not sure how to express them," she said. "Incarcerated" features a Muppet character, Alex, who has experienced a father who is in jail. The colorful character is, in effect, color-blind.

"The beauty of a Muppet," said Dino, "is they can be any color. They can speak to so many different children.  Alex is orange and he's got blue hair, so he doesn't speak to any one particular ethnicity or race.  He speaks to all children."

Sesame Workshop, which let us peek behind the scenes at its nine-month-long process, has in recent years tackled issues from divorce to deployment to death.  And Sesame recognized that incarceration was an issue that affected kids, too.  More than 50 percent (54%) of people behind bars have a child under 18....  So Sesame Street, in its simple, familiar way, is trying to break it down, using imaginary characters to explore — and explain — what was once unimaginable, but now more and more common.

Though the image I have reprinted above is meant to add a little levity to this story, I want to compliment Sesame Workshop for taking on this important and serious issue.  The materials assembled by Sesame at the webpage "Little Children, Big Challenges: Incarceration", which provides an array of resources as a toolkit for kids and parents, seems to be developed and delivered with a keen sense of the keen problems that modern mass incarceration has helped create for today's families and children.

June 9, 2013 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4) | TrackBack