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July 27, 2013

"Big Marijuana lobby fights legalization efforts"

Mm imageThe title of this post is the headline of this intriguing new Politico piece concerning the latest politics of pot.  Here are excerpts:

Pot legalization activists are running into an unexpected and ironic opponent in their efforts to make cannabis legal: Big Marijuana.

Medical marijuana is a billion-dollar industry — legal in 18 states, including California, Nevada, Oregon and Maine — and like any entrenched business, it’s fighting to keep what it has and shut competitors out. Dispensary owners, trade associations and groups representing the industry are deeply concerned — and in some cases actively fighting — ballot initiatives and legislation that could wreck their business model.

That pits them against full legalization advocates, who have been hoping to play off wins at the ballot box last fall in Colorado and Washington state that installed among the most permissive pot laws in the world. Activists are hoping to pass full legalization measures in six more states by 2016.

From the point of view of dispensary owners, legalization laws — depending on how they’re written — can have little immediate upside and offer plenty of reasons for concern. For one, their businesses — still illegal under federal law — benefit from exclusive monopolies on the right to sell legal pot, but state measures still don’t end the risks of an FBI raid or Internal Revenue Service audit. Meanwhile, those same federal laws that prohibit growing, selling and using keeps pot prices high.

This spring, the Medical Marijuana Caregivers of Maine joined the usual coalition of anti-pot forces of active law-enforcement groups, social conservatives and public health advocates to oppose a state bill that would legalize possession of small quantities of the drug. The medical marijuana lobby argued that criminal organizations would start smuggling pot to neighboring states, and they complained that the bill’s tax plan was unworkable and unfair....

Full legalization advocates, like the National Organization for the Reform of Marijuana Laws, say it’s all about the money. “There are people who are benefiting financially and would prefer to see nothing change that,” said Erik Altieri, communications director for NORML.

“NORML believes the only way to truly ensure access for those patients who need cannabis for medical purposes is to legalize its use for all adults,” he added. “This will provide every adult safe and convenient access to quality cannabis, regardless of whether or not their state legislators think their specific condition ‘qualifies.’”

There wasn’t always a major divide in the cannabis camp. The two sides of the movement have long worked together on de-scheduling marijuana as a controlled substance and stopping federal raids on legal dispensaries.

Many owners of medical marijuana dispensaries got their start in the broader anti-drug war movement and are still on the same intellectual side of the issue — working to de-criminalize pot. “It’s like dentists and fluoride,” said Ethan Nadelmann, executive director of the Drug Policy Alliance. “People using fluoride reduces business for dentists. But nonetheless, dentists see fluoride as part of what they have to advocate for.”...

The split between the two sides of the pro-pot lobby is generally on the state level, where legislatures have been willing to take up the issue. Both sides are united in opposition to federal raids on medical marijuana dispensaries and support an overhaul of federal drug laws, but so far, Congress has shown little interest. “At the federal level, there really is no divergence of interest at this point. We have a narrower focus” said Betty Aldworth, deputy director of the National Cannabis Industry Association.

The association and Americans for Safe Access are two major national trade groups that push for strict neutrality on state-level ballot efforts. Americans for Safe Access advocates specifically for medical cannabis, while NCIA represents all marijuana retailers — recreational and medical.

In Washington state, pot dispensary operators said the new legalization law would put them out of business. Medical marijuana activists also were upset about a standard for driving under the influence, included in the 2012 ballot initiative. It proposed that police could jail them even if they weren’t high.

In Washington, Steve Sarich, executive director of the Cannabis Action Coalition, ran a vocal campaign against the ballot measure. Among his concerns: provisions in the law that allow cities to impose restrictive zoning codes on marijuana retailers, and the liquor control board’s lack of experience regulating marijuana. The initiative — called I-502 — was “designed to pass,” he said. “It was never designed to be implemented. I’m willing to bet you any amount of money you like that it won’t be implemented.”

In Colorado, opposition from the industry to the 2012 ballot measure was muted — but pot dispensaries won an important concession: the exclusive right to convert into recreational shops before anyone else can apply for a license....

“Their concerns are oftentimes valid,” Mason Tvert, said Marijuana Policy Project of Denver and who also helped run the pro-legalization campaign in 2012. “We’re taking about people who have risked their freedom and liberty and faced the threat of criminal penalties to open these businesses to meet the needs of the public.”

July 27, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3) | TrackBack

July 26, 2013

Kansas Gov calling special legislative session to deal with Allenye problems

A helpful reader alerted me to this local Kansas article reporting on the latest ripple from the Supreme Court's work last month in Alleyne.  The piece is headlined, "Brownback calls for special legislative session to address questions on ‘Hard 50’ law," and here are the details:

Kansas Gov. Sam Brownback has called for a special legislative session starting Sept. 3 to address legal questions about the state's so-called "Hard 50" sentencing law.  State Attorney General Derek Schmidt had asked for a special session because of a recent U.S. Supreme Court ruling that struck down a similar federal sentencing law.

“The ‘Hard 50’ sentence is a vital public safety tool that has been in place for more than 10 years,” Brownback said in a statement released today. “The sudden absence of the ‘Hard 50’ sentence poses a real and present danger to the public safety of all Kansans.”

Republican leaders of the Kansas Senate quickly issued a statement supporting the call for a special session. “I appreciate the assessment of the situation by the Governor and the Attorney General, and support their decision,” Senate President Susan Wagle, a Wichita Republican said in the statement. “After learning about the circumstances of the pending cases, and recognizing the critical time element involved with the appeals process, it’s clear we must act. The Senate will respond quickly and efficiently to protect public safety.”

Under the Kansas statute, people convicted of premeditated murder can be sentenced to life without the possibility of parole for 50 years if the trial judge finds certain aggravating factors. Otherwise, those defendants are typically given a sentence of 25 years to life.

The U.S. Supreme Court, however, issued a ruling in June saying that when statutes like the Hard 50 law call for enhanced penalties, the facts that justify the more severe sentence must be decided by the jury, not a judge. Days after the Supreme Court issued that ruling, it remanded a Kansas case back to the state supreme court to be reconsidered....

“While returning to Topeka for a special session is often a last resort, crafting legislation to keep our constituents safe from violent offenders is the proper response to the Alleyne Decision," Senate Majority Leader Terry Bruce, a Hutchinson Republican, said, referring to the U.S. Supreme Court's ruling in Alleyne v. United States. "Legislative action should be taken in a reasonable period of time and in a bipartisan manner.”

During a news conference Thursday, Schmidt said there were potentially dozens of other cases in Kansas that could be affected by the ruling. One of those involved a murder-for-hire scheme in which the victim was shot execution-style in the back of the head in front of her child. It was a case of mistaken identity, Schmidt said, and the victim was not the intended target.

July 26, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0) | TrackBack

Cleveland kidnapper Castro takes LWOP+ plea deal sentence to avoid death penalty

The "settlement" value of the death penalty has shown itself again here in Ohio with the breaking news that "Cleveland kidnapper Ariel Castro accepted a plea deal today that sends him to prison for life plus 'not less than 1,000 years' with no chance of parole for abducting three women and keeping them as sex slaves for over a decade."  Here is more from this ABC News account of today's court proceeding:

"I'm fully aware and I do consent to it," Castro said at a hearing today in a Cuyahoga County court. The deal will spare him from the possibility of facing the death penalty. "I knew I was pretty much going to get the book thrown at me," Castro, 52, told the court.

The agreement as explained by prosecutors would sentence Castro to no "less than 1,000 years" in prison after completing a first sentence of life with no chance of parole. "You understand by accepting this plea, you're accepting life without parole," Judge Michael Russo asked Castro. "You'll never leave prison alive."

"Yes, I do," replied Castro.

The former school bus driver was accused of the aggravated murder of a fetus after forcibly causing an abortion in one of his victims that he is accused of impregnating. That charge would have carried the death penalty had he been convicted. He had previously pleaded not guilty to nearly 1,000 counts of kidnapping, rape and other crimes....

The victims, Amanda Berry, Michelle Knight and Gina DeJesus were discovered in Castro's home in May. They were abducted between 2002 and 2004, when they were in their teens or early 20s. "Amanda, Gina, and Michelle are relieved by today's plea. They are satisfied by this resolution to the case, and are looking forward to having these legal proceedings draw to a final close in the near future. They continue to desire their privacy," attorney Kathryn T. Joseph said in a statement.

Prosecutors said if evidence of additional crimes came to light, Castro could still be indicted on future charges that included the death penalty. Castro said he was "willing to work with FBI and I would tell them everything" about his crimes. Wearing glasses for the first first time in court, Castro appeared more alert than at previous hearings.

He said he read and signed the plea deal and understood it although "my addiction to pornography and my sexual problem has taken a toll on my mind" that sometimes caused problems with comprehension. "I was victim as a child and it just kept going," Castro blurted out as an explanation for his crimes. But the judge cut him off, advising him to save his story for his sentencing hearing.

The judge still must accept the terms of the deal agreed to by lawyers and Castro, following a sentencing hearing where the victims may speak. The victims, through their spokesperson, had previously said they did not want to testify at a trial.

Though I suspect some die-hard death penalty abolitionists might take issue with my claim, I sincerely believe that the effective and efficient (and victim-helpful) final outcome in this case was made possible, at least in part, by Ohio having the death penalty on the books. I have a hard time seeing how it would be ethical for a defense lawyer to urge Castro to take a deal like this unless it involved eliminating the chance of a death sentence.  Of course, in a jurisdiction without the death penalty, there never is a chance of a death sentence.

A reasonable argument can be made that the costs and harms of trying to administer the death penalty ultimately outweigh the plea benefits that capital punishment can produce in cases like this. But I think a fair and honest debate about the virtues and vices of the death penalty must recognize cases like this one in which the death penalty would seem to here have done more good than harm for both the victims and society at large.

Recent related posts:

July 26, 2013 in Death Penalty Reforms, Offense Characteristics, Victims' Rights At Sentencing | Permalink | Comments (21) | TrackBack

New BJS data show continued 2012 decline in state prison populations (and continued federal increase)

As detailed in this official press release from the Bureau of Justice Statistics, which carries the heading "U.S. Prison Population Declined for Third Consecutive Year During 2012," the impact of tight budgets and state reforms continues to impact national prison populations in important and significant ways. Here are the basic details:

The U.S. prison population declined 1.7 percent (or by 27,770 inmates) from 2011 to 2012, falling to an estimated 1,571,013 prisoners.... Nine states had a decrease of over 1,000 prisoners in 2012: California, Texas, North Carolina, Colorado, Arkansas, New York, Florida, Virginia and Maryland.

This is the third consecutive year of a decline in the number of state prisoners, which represents a shift in the direction of incarceration practice in the states over the past 30 years. The prison population grew every year between 1978 and 2009, from 307,276 prisoners in 1978 to a high of 1,615,487 prisoners in 2009....

California accounted for the majority (51 percent) of the decline in state prisoners with 15,035 fewer inmates in 2012 than 2011. The decline in California was due in part to its Public Safety Realignment policy, which was designed to reduce overcrowding in the state prisons by diverting new admissions of “nonserious, nonsex, nonviolent offenders” from state prisons to local jails.

The decline in the state prison population was offset by an increase in the number of federal inmates. The federal prison population grew by 0.7 percent (or 1,453 inmates) during 2012, a slower rate than the average annual increase of 3.2 percent each year over the past 10 years.

The U.S. imprisonment rate dropped to 480 sentenced prisoners per 100,000 residents in 2012, continuing a decline since 2007. The national imprisonment rate for males (910 sentenced prisoners per 100,000 male U.S. residents) was over 14 times the imprisonment rate for females (63 sentenced prisoners per 100,000 female U.S. residents). The female imprisonment rate decreased 2.9 percent in 2012 from 65 per 100,000 female U.S. residents in 2011.

In 2012, states with the highest imprisonment rates included Louisiana (893 per 100,000 state residents), Mississippi (717 per 100,000 state residents), Alabama (650 per 100,000 state residents), Oklahoma (648 per 100,000 state residents), and Texas (601 per 100,000 state residents).

Maine had the lowest imprisonment rate among states (145 per 100,000 state residents), followed by Minnesota (184 per 100,000 state residents), and Rhode Island (190 per 100,000 state residents).

In 2011 (the most recent data available), the majority (53 percent) of sentenced state prisoners were serving time for a violent offense, including robbery (14 percent), murder or nonnegligent manslaughter (12 percent), rape or sexual assault (12 percent) and aggravated or simple assault (10 percent). About 18 percent were serving time for property offenses, 17 percent for drug crimes and 11 percent for public order offenses, such as weapon violations, drunk driving, commercialized vice and court offenses.

White prisoners comprised 35 percent of the 2011 state prison population, while black prisoners were 38 percent and Hispanics were 21 percent. The percentage of Hispanic inmates sentenced for violent offenses (58 percent) during 2011 exceeded that of non-Hispanic black (56 percent) and non-Hispanic white (49 percent) inmates, while the number of black inmates imprisoned for violent crimes (284,631) surpassed that of white (228,782) or Hispanic (162,489) inmates.

The number of white inmates sentenced for property crime (108,560) was larger than the number of black (78,197) and Hispanic (38,264) inmates sentenced for property crime, while more black inmates were sentenced for drug offenses than inmates of other races or Hispanic origin.

All of this data, and lots more of note, can be found via this 17-page BJS report, which carries the thrilling title "Prisoners in 2012 - Advance Counts."  Effective media coverage of this notable new prisoner data can be found via this New York Times article headlined "U.S. Prison Populations Decline, Reflecting New Approach to Crime."

July 26, 2013 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (6) | TrackBack

If you have any concerns about female federal prisoners...

Danburythen you should be especially troubled by this new blog post by Todd Bussert titled "New Hardships For Female Prisoners." That post spotlights this new Slate piece by LawProf Judith Resnik, which highlights the main concern via its headline and subheading: "Harder Time: Why are the federal prison beds for women in the Northeast going to men — while the women get shipped to Alabama?". Here is an excerpt from the Slate piece:

This August, the Federal Bureau of Prisons plans to start shipping women out of its only prison for women in the Northeast, located in Danbury, Conn. — 70 miles from New York City, and in easy reach of visitors for the many prisoners who come from there.

Danbury (where Piper Kerman, who wrote Orange is the New Black, did her time) will soon have only 200 spots for women (in a separate low-security camp).  The prison’s other 1,100 beds will go to men.  Most of the women are slated to be sent to a new 1,800-bed facility in Aliceville, Ala. — 1,070 miles from New York City, a drive that takes nearly 16 hours.

Becoming the site of a new federal prison is good news for Aliceville, population 2,500.  As a New York Times editorial explained last year, Alabama Sen. Richard Shelby promoted the facility as an economic boost to the area.  It cost the federal government $250 million.  But as the newspaper also commented, the government bought a “white elephant.” Aliceville is hard for anyone without a car to get to. There is no train station or airport nearby.  Aliceville has no medical center or university, nor many lawyers, religious leaders, or other service providers.

The federal Bureau of Prisons houses about 220,000 people.  Fewer than 7 percent (about 14,500) are women, most of them sentenced for nonviolent crimes, such as drug offenses. Of the 116 facilities the bureau runs, 27 have some beds for women, and seven — counting Danbury — have been exclusively for women.  Danbury is the only prison placement in the Northeast for women.  The federal jails in Brooklyn, N.Y., and Philadelphia are for pretrial detainees.  Other federal facilities for women comparable to Danbury are many miles away, in West Virginia, Florida, and Minnesota....

Being moved far from home limits the opportunities of women being moved out of Danbury; it hurts them in prison and once they get out.  Recent research from Michigan and Ohio documents that inmates who receive regular visits are less likely to have disciplinary problems while in prison and have better chances of staying out of prison once released.

The Bureau of Prisons knows this, as it recognizes the importance of “family and community ties” in its classification system.  The bureau gives inmates points for family ties when assessing the degree of security in which to place individuals.  Getting visits also counts toward qualifying for a transfer to a less secure facility.

Most women come to prison from households with children.  According to the National Women’s Law Center, more than one-half of female federal prisoners have a child under the age of 18.  Last month, the director of the federal prison system sent a memo to all inmates to announce that his staff was “committed to giving you opportunities to enhance your relationship with your children and your role as a parent.”  In addition to letters and calls, he hoped that inmates’ families would bring their children to visit. “There is no substitute for seeing your children, looking them in the eye, and letting them know you care about them,” he wrote.

But for prisoners from New England and the mid-Atlantic states, the move to Aliceville closes off those possibilities.  Placement in Aliceville also makes it harder for lawyers to see their clients and provide help on problems ranging from losing custody of children to challenging convictions.  

What’s the justification for moving Danbury’s women to Aliceville? To make the argument for the large new complex, the Bureau of Prison claimed that Aliceville would benefit women, because the existing facilities for them were about 55 percent over capacity. What the BOP did not mention was that it planned to turn over women’s beds in Danbury to make room for lower security male inmates, also housed in overcrowded facilities.

The skyrocketing numbers of people in prison is a well-known tragedy.  Adding to it is the isolation to which women at Aliceville are being condemned.  The Bureau of Prisons itself describes women as mostly nonviolent and lower escape risks than men.  Why not, therefore, keep Danbury open, as well as send women to community-based facilities near their families, and provide educational options, job training, and treatment programs? Instead of taking a route consistent with its own policies, and newly announced commitments to parenting by prisoners, the government is sending hundreds of women on a long hard trip to Aliceville.

July 26, 2013 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5) | TrackBack

July 25, 2013

Notable federal death penalty developments from the Northeast

Federal death penalty news is relatively rare, and death penalty news from the northeastern part of the United States is even more rare. But, thanks to recent developments from high-profile capital cases from New York and Massachusetts, there are these news reports of notable developments in two federal death penalty cases from the Northeast:

Though notable, I am not sure any of this federal capital news is really all that consequential.  Both before and after these developments in this two high-profile federal multiple-murder cases, the smart money would be on a bet that both of the defendants in these cases ultimately end up serving functional LWOP sentences by at some point dying natural deaths after many decades of federal litigation concerning their fates.

July 25, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (7) | TrackBack

Arkansas struggling to work through how to lawfully complete executions

As reported in this local article, headlined "Arkansas Committee Looks for Ways to Administer Death Penalty," officials in The Natural State are having a very hard time coming up with a natural and constitutional method for carrying out executions:

Arkansas officials are considering what steps to take in the wake of comments by Attorney General Dustin McDaniel claiming Arkansas’ death penalty system is broken. McDaniel told the joint Judiciary Committee the nationwide unavailability of the lethal injection drug, a lack of medical personnel willing to administer the dose, and a continuing stream of costly litigation has rendered the state unable to perform its duty.

Some lawmakers suggested other methods used elsewhere. McDaniel said those options carry many of the same problems as well as an additional burden of meeting what the court’s deem to be our evolving societal values.

"Of course we don't know for sure how the courts would view an execution by firing squad, or gas chamber, or by electric chair. But I think I have a pretty good guess. Although the specific factual issues in a challenge to execution by one of those alternative methods would be different the legal issues regarding claims of cruelty and the possibility of undue pain or mistake would be exactly the same as the claims raised in the lethal injection cases," said McDaniel.

Republican Senator Jeremy Hutchison of Benton said challenges to carrying out the death penalty, especially the unavailability of the lethal drug, is not a reason to stop pursuing other options. "This is on the books and as long as juries are rendering capital punishment we are obligated as legislators, and the as the Attorney General, to do everything we can to see that it's carried out," said Hutchison.

McDaniel said he will continue working to uphold the law, but that the state has very few options and other states around the country are facing similar problems. McDaniel said options include the abolition of the death penalty, continuing litigation, and pressuring Congress to lift an FDA ban on imports of lethal barbiturates.

July 25, 2013 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5) | TrackBack

On-line petition for law professors to "Save Federal Defenders Services"

Professor Fredrick Vars via this post at PrawfsBlawg has started this valuable on-line petition:

Petition: Save Federal Defender Services

Sequestration imperils the constitutional right of criminal defendants to adequate legal representation.  About 90% of federal criminal defendants require court-appointed counsel. In FY 2013, sequestration resulted in a $52 million cut to Federal Defender Services, bringing massive layoffs and furloughs.  It is estimated that in FY 2014, if nothing is done, FDS will be forced to terminate as many as one-third to one-half of employees.

Funding for prosecutors is apparently headed in the opposite direction. The Senate Appropriations Committee last week announced a $79 million increase to the FY 2014 budget for U.S. Attorneys’ offices for the express purpose of bringing more criminal cases in federal court.   This radical imbalance threatens the fundamental right to counsel.

Please join me in urging Congress and the President to restore adequate funding for Federal Defender Services.  Just add a comment with your name, institutional affiliation (if applicable), and city of residence.

I have added my name to this effort, and a helpful reader sent me a link to this informative fact-sheet providing background for why everyone concerning with a fair and effective (including cost-effective) criminal justice system ought also join in.

Related posts on the criminal justice impacts of sequestration:

July 25, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (58) | TrackBack

Waaaaay below federal guideline prison sentences (but big fines) for UBS bid-riggers

As reported in this Wall Street Journal, headlined "US set back on bid-rig sentencing," a federal district judge in NYC yesterday handed down a set of white-collar sentences that were far below calculated guideline ranges and far below the sentences being sought by federal prosecutors.  Here are the details:

US District Judge Kimba Wood of the Southern District of New York handed Peter Ghavami, the former co-head of UBS' municipal-bond reinvestment and derivatives desk, an 18-month sentence. Prosecutors had sought at least 17½ years and as long as 21 years, 10 months for Ghavami, who also served as the Swiss bank's head of commodities at one point.

The much harsher sentence proposed by the government would have been longer than the 11-year term given in 2011 to Galleon hedge-fund founder Raj Rajaratnam for his insider-trading conviction.

But Judge Wood, a one-time nominee to become US attorney general who also sentenced former Drexel Burnham Lambert executive Michael Milken to 10 years in prison, raised questions about the government's method of calculating losses in the case, which it had pegged at about $25 million.

She also praised Ghavami's "admirable history" and noted that he faces other penalties including a $1 million fine and deportation to Belgium, where he is a citizen. Because Ghavami, 45 years old, is not a US citizen, he also has to serve in a "low security" prison instead of a "miminum security" camp.

One of Ghavami's former colleagues, Gary Heinz, 40, a former vice president on UBS' municipal-bond reinvestment desk, was given a 27-month sentence Wednesday, while Michael Welty, 49, another former vice president, got 16 months. Prosecutors had asked for at least 19½ years for Heinz and about 11 years or more for Welty.

Last summer, a New York jury found the three former UBS employees guilty of leading a scheme that caused municipalities to pay millions of dollars more for bond deals than they needed to pay. The case dealt with an obscure corner of the bond market in which local governments raise money from investors through bond deals, then invest the proceeds in investment products that banks and others are supposed to sell in a competitive process....

In the UBS bond-rigging case however, prosecutors sought stiff penalties for actions that took place before the financial crisis, from 2001 to 2006.  The three former UBS employees caused cities, states and other municipalities to lose $25 million, the government alleged. "For years, these executives corrupted the competitive bidding process and defrauded municipalities," said Scott D. Hammond, deputy assistant attorney general in the Antitrust Division's criminal-enforcement program, in a statement.....

"We're extremely pleased with the sentence," said Charles Stillman, a lawyer for Ghavami. Ghavami intends to start serving his sentence as soon as possible, instead of waiting to see how his appeal of the case turns out, Stillman added.  Ghavami's fine of $1 million was five times greater than the maximum suggested by the government.

Heinz and Welty were fined $400,000 and $300,000, respectively, both more than the government suggested.  Marc Mukasey, Heinz's lawyer, said "We're happy that the government's outrageous sentencing request was soundly rejected."  Welty's lawyer, Gregory Poe, said that the jury acquitted Welty of wire fraud and said he will appeal the conspiracy convictions, and "we hope to clear his name."  He added that his client is grateful that Judge Wood rejected the government's sentencing position.

Over the past half-decade, the Justice Department has pursued the muni-bond cases as part of an effort to punish Wall Street banks for shortchanging cities and states. Prosecutors have enjoyed some victories, so far gathering six convictions and 13 guilty pleas.  Several were sentenced before Wednesday, with prison terms ranging from six months to four years.  Firms affected by the investigation have paid $745 million in restitution, penalties and disgorgement....

It remains to be seen whether this week's sentencing setback will affect the government's strategy in the other pending sentencing hearings.  Two former JP Morgan Chase. employees, two former Bank of America employees and three others involved with the case await sentencing.  One case remains pending and awaiting trial.

Last year, three former employees of General Electric were convicted for their roles in conspiracies related to bidding for municipal-bond-proceeds reinvestment. Two were sentenced in October to three years in prison and the third received a four-year term.

At the hearing Wednesday, prosecutors argued that the former UBS officials deserved more prison time than the former GE employees, while Judge Wood said she didn't see the cases as that different.  She also expressed doubt that anyone could accurately quantify losses in cases where the bidding process had been corrupted. In the case of the three UBS officials sentenced Wednesday, federal prosecutors also sought fines of $20,000 to $250,000 in the case.  Prosecutors called their actions a "sophisticated financial fraud" that went on for years and "victimised municipalities and other bond issuers".

There are obviously lots of interesting aspects to this sentencing story.  I am especially eager to praise Judge Wood for using big financial penalties — which make the government money and seem especially fitting for crimes of greed — while refusing to use big imprisonment terms — which cost the government money and seem unlikely to impact public safety for non-violent white-collar criminals. Relatedly, given that this article suggests that all other comparable big-rigging defendants have received sentences ranging from 6 to 48 months, I find stunning and deeply troubling that federal prosecutors were advocating in these cases for sentences ranging from more than 130 months to 260 months. Nice effort to avoid unwarranted sentencing disparities via your advocacy here, DOJ. (Not!)

July 25, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

July 24, 2013

Should (and can) Alaska really be precluding plea deals with sentence reductions?

ALASKAThe (cumbersome) question in the title of this post is my first reaction to this notable local criminal justice story coming out of Alaska, which is headlined "State puts an end to sentencing deals in serious crimes." Here are the fascinating details:

State prosecutors will no longer negotiate plea deals for lesser sentences for Alaskans accused of serious crimes and domestic violence, the Alaska Department of Law said Tuesday.

The change of policy, which took effect Tuesday, bars plea bargains involving sentences for the most serious classes of felony cases, as well as all cases involving sexual assault, sexual abuse of a minor and domestic violence, said deputy attorney general Richard Svobodny. A plea bargain is an agreement between a prosecutor and defendant in which the defendant agrees to plead guilty in exchange for a lesser charge or a more lenient sentence, avoiding a trial. Nationally, between 90 and 95 percent of all criminal cases are settled through such agreements, according to a 2011 U.S. Department of Justice study. Attorneys say the statistic is roughly the same in Anchorage.

Under the new policy, prosecutors can offer defendants the opportunity to be charged with a less serious crime. But they can't offer a deal that changes the length of a sentence. Only a judge can do that. The idea is that judges should be the ones determining sentences, not prosecutors or defense attorneys, Svobodny said.

Attorneys say the policy could flood already-stretched courts with criminal defendants exercising their right to trial and generate huge new costs for prosecution and incarceration, which would eventually be borne by the public. "It's a major decision that's going to affect system-wide daily business in Anchorage courts," said Chester Gilmore, an Anchorage defense attorney. "Our model of criminal justice initially started with judges making those sentencing decisions and it should be handed back to them," he said.

The change comes in the wake of a state review that shows prosecutors botched a 2009 plea deal involving accused killer Jerry Active. Active is the 24-year-old Togiak man accused of killing an elderly Cambodian couple -- Touch Chea and Sorn Sreap -- in their Mountain View apartment in May. He also is accused of sexually assaulting three generations of the family, including Sorn, a toddler and a 90-year-old woman. Active had spent much of his adult life in the correctional system before the killings, which took place on the same day he was released from his latest stint in jail.

A state review found that prosecutors made an inappropriately soft plea agreement with Active in a 2009 case after failing to recognize that he had already been convicted of a felony, Attorney General Michael Geraghty said in June. A judge and the Department of Corrections both failed to recognize the plea agreement mistake. The Active case became "part of the mix" in the decision to announce the new policy now, Svobodny said, although a change had been under discussion in the law department for more than a year....

Another influence was Gov. Sean Parnell's "Choose Respect" campaign. Parnell's office "worked closely" with the Department of Law on the change, said a spokeswoman.The "Choose Respect" campaign has emphasized the prosecution of sexual offenders and domestic violence perpetrators. "We feel the policy will better protect victims and ensure perpetrators are held accountable for their crimes," Parnell spokeswoman Sharon Leighow said.

Both prosecutors and defense attorneys say the rule will inevitably lead to more trials. Plea bargains aren't always appropriate but in many cases prosecutors and defendants agree they are the best way to resolve a case quickly and fairly, Gilmore said. The policy "takes away a lot of the reason anyone would have for not going to trial," he said....

In 1975, Alaska's then-attorney general banned all forms of plea bargaining. Dire predictions of system overload didn't pan out, though misdemeanor trials increased substantially in the immediate aftermath of the ban, a 1977 Alaska Judicial Council study found. A 1990 judicial council study found that the ban had eroded and the practice was again commonplace.

I suspect resourceful Alaskan prosecutors and defense attorneys will still find a way to strike sentence-impacting plea deals even in the wake of this fascinating new prosecutorial policy. Ergo, I am not sure that the state can, as a functional matter, really put an end to all sentencing deals in serious cases. More broadly, as the question in the title of my post suggests, I wonder if others question (as I do) whether this is a wise policy even if it could be practically sustained. Will rape victims and other victims of serious crimes in Alaska really be pleased to have to endure more trials and the extra burdens such trials might place on them? Will the resources the state will now likely have to devote to more trials to resolve criminal charges reduce the resources needed to fight crime in other ways in the state?

I could go on and on with philosophical and practical questions concerning what Alaska seems to be trying to do hear, but for now I will stop to hear others' reactions and thoughts about a criminal justice development that justifies watching closely in the months and years to come.  Is Alaska on the verge of becoming the Last Frontier State for plea bargaining?

July 24, 2013 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (5) | TrackBack

Two notable new ACLU reports on solitary confinement in US prisons

I am pleased to see that lots of criminal justice public policy groups are starting to spend considerable more time and energy raising concerns about the use and misuse of solitary confinement in US prisons.  Of particular recent note are these two new ACLU reports on the topic just this week:

July 24, 2013 in Death Penalty Reforms, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

"Critical Analysis of Acquitted Conduct Sentencing in the U.S.: 'Kafka-Esque', 'Repugnant', 'Uniquely Malevolent' and 'Pernicious'?"

The title of this post is the title of this paper recently posted on SSRN and authored by Orhun Hakan Yalincak. Here is the abstract:

The use of acquitted at sentencing is a highly contested practice in sentencing theory and policy. In federal court and many state courts across the United States, once a defendant is convicted, judges are routinely permitted, in fact, required to increase a defendant’s sentence based on relevant conduct, of which he was acquitted at trial, or conduct for which he was never charged. This essay highlights the issues that arise from the use of acquitted conduct sentencing under the now advisory U.S. Sentencing Guidelines. The use of acquitted conduct under the relevant conduct provisions of the Guidelines has resulted in substantially longer prison sentences with a disparate impact on racial and ethnic minorities. Acquitted conduct sentencing treats the offence admitted by a defendant, or proven to a judge or jury’s satisfaction beyond a reasonable doubt as simply a starting point in calculating a defendant’s sentence; the modified real offense approach, which incorporates relevant conduct and mandates consideration of acquitted conduct, determines the end sentence.

This essay concludes that use of acquitted conduct should be prohibited both on constitutional and normative grounds. While it is outside the scope of this essay to offer a comprehensive solution or alternative to the use of acquitted conduct at sentencing, the key observation is that, since the common thread linking the constitutional and normative issues arise from the fragmented nature of U.S. sentencing policy, the solution must start with re-conceptualizing the theories underlying sentencing in the U.S.

July 24, 2013 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (5) | TrackBack

July 23, 2013

Mixed DC Circuit ruling in suit against FDA allowing execution drug importation

As reported in this AP piece, the DC Circuit "ruled Tuesday that the Food and Drug Administration violated its duty by allowing a misbranded and unapproved new drug to be imported for use in executions by lethal injection."  But the ruling also "reversed another part of the lower court’s order and allowed state correctional departments to keep stocks of the drug they currently have."  Here is the concluding paragraph of the unanimous panel ruling today in Cook v. FDA, No. 12-5176 (DC Cir. July 23, 2013) (available here):

The FDCA imposes mandatory duties upon the agency charged with its enforcement. The FDA acted in derogation of those duties by permitting the importation of thiopental, a concededly misbranded and unapproved new drug, and by declaring that it would not in the future sample and examine foreign shipments of the drug despite knowing they may have been prepared in an unregistered establishment. The district court could not remedy the FDA’s unlawful actions, however, by imposing upon the interests of nonparties to this suit. The order of the district court pertaining to the thiopental already in the possession of the states, quoted in the paragraph above, is therefore vacated, but the underlying judgment of the district court is Affirmed.

July 23, 2013 in Baze lethal injection case, Death Penalty Reforms, Who Sentences? | Permalink | Comments (3) | TrackBack

Second Circuit finds stat max white-collar sentences procedurally unreasonable

The Second Circuit panel has today handed down a significant reasonableness ruling in US v. Juncal, No. 10-1800 (2d Cir. July 23, 2013) (available here), which should be of special interest to all white-collar sentencing practitioners. The last seven pages of the per curiam panel opinion and the entire nine pages of the concurrence by Distict Judge Underhill (sitting by designation) are must reads for sentencing fans, and the few paragraphs I will reprint here help highlight why.

The per curiam panel opinion find procedurally unreasonable 20-year sentences given to defendants who were part of a conspiracy "which involved a scheme to obtain a three billion dollar loan supposedly intended to finance construction of a pipeline across Siberia [that] resulted in no actual loss." Here is part of the panel opinion's explanation for why these sentences were procedurally unreasonable:

Here, appellants’ lawyers highlighted significant issues with the intended loss calculation both in their briefs and at sentencing. Given the low risk that any actual loss would result — what hedge fund would fall prey to a purported coalition of Buryatian nationals and Yamasee tribesmen using AOL email accounts to offer five billion dollars in collateral for a loan to build a pipeline across Siberia? — counsel argued that a 30 point mega-enhancement vastly overstated both the seriousness of the offense, and the danger of appellants to their community.  The Guidelines acknowledge that potentiality; application note 3(C) to U.S.S.G. § 2B1.1 indicates that a downward departure may be warranted where the offense level resulting from a loss calculation overstates the seriousness of an offense.  But the sentencing court never resolved appellants’ significant arguments.  At Sampson’s hearing the District Court did draw a comparison between other financial crimes and this case, but it never resolved the question raised by the appellants — whether treating intended loss like actual loss under all the circumstances of this case leads to a sentence consistent with the dictates of section 3553(a).

The concurring opinion by Judge Underhill is even more potent as it advocates for a broader ruling that the sentences here are substantively unreasonable, and here is how it gets started

In my view, the loss guideline is fundamentally flawed, and those flaws are magnified where, as here, the entire loss amount consists of intended loss.  Even if it were perfect, the loss guideline would prove valueless in this case, because the conduct underlying these convictions is more farcical than dangerous. If substantive review of sentences actually exists other than in theory, it must be undertaken at least occasionally.  This would have been an appropriate case in which to do so, because it raises so starkly the problems with the loss guideline. Until this Court weighs in on the merits of the loss guideline, sentences in high-loss cases will remain wildly divergent as some district judges apply the loss guideline unquestioningly while others essentially ignore it.  The widespread perception that the loss guideline is broken leaves district judges without meaningful guidance in high-loss cases; that void can only be filled through the common law, which requires that we reach the substantive reasonableness of these sentences.

July 23, 2013 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (6) | TrackBack

July 22, 2013

"Mass Incarceration and the Making of Citizens"

The title of this post is the title of this intriguing essay by Benjamin Justice now available via SSRN. Here is the abstract:

In The Spirit of Laws, Montesquieu famously observed that the legal system of a given state ought to exist in harmony with its overall organization of power. In a republic, he argued, the people are sovereign.  Thus there must be laws regulating mass education to enhance civic virtue, teaching the people to love the laws of their country above their individual self interest.  The laws of crime and punishment, too, must comport with the spirit of the government they support.  In a healthy republic, wrote Montesquieu, a virtuous people require little punishment.

If Montesquieu is correct, the rise of the American carceral state signals a profound challenge to the democratic nature of our government.  This essay reviews three recent books on the rise of the carceral state as part of a broader discussion of the role of criminal justice in making citizens.

July 22, 2013 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (3) | TrackBack

Notable new commentaries about realignment in California

Via two notable sources are these two notable new discussions about sentencing and corrections in California:

July 22, 2013 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

"A few shotgun shells landed a man 15 years in federal prison"

Young photoThe title of this post is the headline of this remarkable federal sentencing story out of Tennessee.  Here are the details:

In some cases, old mistakes echo across the years. New sins carry the crushing weight of an old life.   In some cases, a criminal past is not forgiven.

Months before he left state prison on burglary convictions in 1996, Edward Lamar Young told his grandmother he was going to be a different man. He would get work, get married and have a family.  The 26-year-old wouldn't steal to get what he needed or wanted.  And soon after he left prison bars behind he fulfilled that promise. He met and married a woman named Stacy.  The couple had four children.

But in late September 2011, he went off track.  He stole tools, tires and weightlifting equipment from vehicles and a business warehouse.  He even had his son with him on one trip, which added a separate charge. A video camera recorded the burglaries. Less than a week later police knocked on the door of his Hixson home. He let them in. They found the tools, but they found something else too, small items inside a drawer that would escalate his punishment far beyond burglary.

Young admits he's done bad things, but he says he's never carried a weapon, never shed another person's blood.  But because of what police found at his house that day -- seven shotgun shells -- his 15-year prison sentence now places him alongside lifelong killers, movie-style gangsters and drug kingpins.  There are homicide convictions that carry sentences half as long in Tennessee state courts. 

Laws designed for the worst of the worst, but written broadly enough to ensnare the less dangerous, subject Young to what even his sentencing judge called a Dickensian penalty. There is a bill in Congress that would give federal judges discretion, untie their hands to ensure punishments fit the crimes.  But that bill is far from passage and would have to apply retroactively, a rarity in many criminal laws, to help Young.

Weeks, maybe months before police came to his home Young had helped a neighbor, a woman named Neva Mumpower.  Her husband had died and she wanted to sell some of their older furniture.  She told Young if he hauled it to the flea market she'd split whatever it sold for.  He did, but kept a chest of drawers at his place. 

A short time later he went through it and found the shells.  Young didn't think much of them.  He put them away so the kids wouldn't come upon them and went on with his day. He'd get them back to Mumpower later or just throw them away.  Except he didn't.

Young confessed to the burglaries and faced state prison time, probably a few years with the likelihood of parole and probation.  Not a proud moment but recoverable.  The 43-year-old man soon discovered that the shotgun shells carried a heavier burden -- a 15-year mandatory federal prison sentence with no possibility of parole.

Standing inside the wood-paneled courtroom in the downtown federal building May 9, Stacy Young knew what was coming but held out a strand of hope.  Mercy, maybe.  She listened as the lawyers droned on about legal definitions, criminal histories and what was right, what was fair. Then the judge told her husband he could speak.

"I just ... I mean, it wasn't ... it wasn't my intent," Ed Young told the judge. "I did find them in the box, and I put them up until I could give them back to her, so my kids wouldn't find them.  I don't think I deserve to grow up without my family, and I don't think my family deserves to grow up without me."  The Youngs' oldest son, who is 16, ran out of the courtroom in tears.  The crying family huddled in the hallway after the sentencing. The youngest son is 6 years old.  He'll be 20 when Ed Young leaves federal prison, a 62-year-old man....

Convicted felons are told they no longer can possess firearms.  Having a gun, even if the felony was a white-collar crime such as wire fraud, means prison time.  What some may know but Young swears he did not, is that possessing ammunition, say seven shotgun shells, is just as bad.

There's nothing in Young's criminal record to show he's ever been accused of carrying a weapon, even in the 20-year-old burglary convictions.  But those burglaries are counted as "violent crimes."  And language is important.  Young's criminal past classified him as an armed career criminal under federal law.  That classification means he faces severe penalties for the rest of his life if he breaks any of the rules.

Young's attorney is flabbergasted. "I don't think there's anything like it at all," said Chris Varner.  "Everything went wrong here." As far as his legal research shows, it is only under the Armed Career Criminal Act that Young's distant convictions can count against him, Varner said.  Other federal sentencing guidelines would not have considered the past convictions because they were so long ago.

Once the charges were filed and the federal grand jury indicted Young, nothing could stop the machine that is federal law.  Prosecutor Chris Poole worked the case.  He declined to comment under U.S. Attorney's Office policy not to speak about active cases.  Young's case is on appeal to the U.S. 6th Circuit Court of Appeals.  But in court documents, Poole explains to U.S. District Judge Curtis Collier that by definition Young's crimes fit the career criminal law and the minimum sentence is 15 years.  The maximum was life.

During the May 9 hearing Collier hinted at his thoughts on the Draconian sentence. "Mr. Young, I don't know if you read a lot, but there was an author who has written a lot of books, and has some overtones here. His name is Charles Dickens," Collier said.

The judge went on to explain the situation and his own lack of power. "This is a case where the Congress of the United States has instructed federal district judges like myself to impose a sentence of at least 180 months, that is, 15 years," Collier said. "... This sentence is not so much a punishment for the present crime as it is a punishment for your history of crimes."

The week after the federal sentencing, prosecutors in state court dismissed the burglary and related charges....

Stacy Young is now a single working mother with a house full of children.  She'll haul them down to Atlanta every other week.  Two of the children will visit the first day, then they'll stay overnight for the other two to see their father the second day.  Ed Young writes letters nearly every day and says he'll keep writing. 

Varner, his attorney, sees the sentence far outweighing the crime and worries what it says about justice. "This is not who we are, we do not do this as a nation," he said.  Stacy, devastated by the outcome, living with the consequences, sees it much more personally. "I don't think he should have 15 years for seven shotgun shells," she said. "I think it's crazy."

July 22, 2013 in Examples of "over-punishment", Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (26) | TrackBack

ECHR on LWOP: guest post on what Vinter might mean for extradition to US

As noted in this post earlier this month, a landmark ruling from the European Court of Human Rights  involving UK nationals declared that LWOP sentences without any prospect of release amount to inhuman and degrading treatment of prisoners.  And, as discussed in this follow-up post, I am intrigued by what the decision in Case of Vinter and Others v. the United Kingdom (available via this link) could mean for sentencing law and practices in the US.

Helpfully, my OSU colleague John Quigley was kind enough to write up this thoughtful explanation of what Vinter could mean for US extradition practices:

For the United States, the significance of the case is that the European Court of Human Rights has previously ruled that an extradition request must be denied if the individual would be subjected in the requesting state to treatment or punishment that would violate Article 3 if carried out by a state party to the European Convention on Human Rights.  A few years ago, a man named Ralston Wellington was wanted in Missouri on a murder charge.  He had gone to the UK, and US authorities requested his extradition. He argued that he might be subjected to life without parole in Missouri and fought extradition on that basis, invoking Article 3.  Wellington was extradited in 2010, but only after the matter went up to the House of Lords, then the highest rung in the UK judicial ladder, where sentencing procedures in Missouri were analyzed in detail.

After the Vinter judgment, a person in Wellington’s situation would stand a better chance of avoiding extradition.  Given what the European Court said, as related above, if the US seeks extradition for surrender to the authorities of a state where a life sentence may be imposed, a UK court could find the person extraditable only if it appeared that a procedure would be available (and would be made known to the person at time of sentencing) to review the sentence, and that release would be a possibility as result of such review.

While the Vinter case concerned the UK, it would apply equally to all states that are party to the European Convention on Human Rights, currently numbering 47.  Thus, a fugitive from the United States in any of these 47 states of Europe could mount a challenge to extradition.

The likely outcome would be that prior to surrendering the individual, the requested state would require an assurance from the United States that the individual would not be sentenced to a life term that would violate Article 3 if imposed by a European state. The matter would be handled on the US side by the Department of State, which could decide against giving an assurance, in which case extradition would likely be denied, or decide to give an assurance, in which case a surrender would likely ensue.  If the prosecution were in a state of the United States, the Department of State would doubtless confer with the authorities of that state before deciding what to do.

If the Department of State were then to give an assurance, the individual would likely be surrender and transported to the state in question.  There it would be up to prosecuting authorities in the relevant county how to proceed.  In a case decided in 1989 by the European Court of Human Rights, the United States gave an assurance to the UK that an individual sought on a murder charge in Virginia (and at the time under arrest in London) would not be subjected to capital punishment.  Soering v. United Kingdom (also available on the European Court website).  The county prosecutor in Virginia had gained an indictment for capital murder, and that indictment was still in effect at the time of the surrender. The prosecutor subsequently dropped the capital specification.

What is not clear as a matter of US law is the situation that would obtain were a prosecutor to refuse to honor an assurance given by the Department of State.  Suppose the state prosecution continued, and a life sentence were imposed with no provision for a review or possible release.  Such a refusal would put the United States in violation of the international commitment it made to the requested state.  But it would not be the first time that state authorities in the United States put the federal government in violation of an international commitment with respect to the handling of a criminal case. See Medellin v. Texas, 552 US 491 (2008).  The US Attorney General would have a basis for suing the state to force it to honor the international commitment.  In all likelihood, the matter would be resolved such that the assurance would be honored.  But it is not obvious just how that would come about.

Recent related posts:

July 22, 2013 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Sentencing around the world | Permalink | Comments (7) | TrackBack

July 21, 2013

Is an execution-free, state death penalty system better or worse than no death penalty at all?

The question in the title of this post is prompted by this local article from Pennsylvania, which carries the headline "Darisabel Baez's killer, like others with death warrants, has many appeals possible; And, there have been no executions in Pennsylvania since 1999."  Here is a brief excerpt from the piece:

No one has been executed in Pennsylvania since July 6, 1999.  There are 190 men and three women on death row, according to the Department of Corrections.

Pennsylvania Supreme Court Chief Justice Ronald D. Castille went on record in 2011, criticizing what he described as the delay tactics and frivolous filings used by the Federal Defenders office, which also represents some of York County's death row inmates.

[Chief Deputy Prosecutor Tim] Barker said that avenues of appeals for condemned inmates can "stretch out the process until it becomes frivolous."

"It's unfair to the victims (and their families) and society in general," he said.

The follow-up question I would like to ask Deputy Prosecutor Barker (and others who are strong advocates for the death penalty) is whether the way Pennsylvania operates its system of capital punishment is worse than having do death penalty at all. Not only have there been no executions in Pennsylvania for almost 15 years, I sense that it is unlikely there will be a resumption of executions in the state any time soon. Given this persistent reality, I wonder if even death penalty supporters would urge the Keystone State to abolish formally what is now functionally a legal fiction of a purported punishment.

(One might arguably view the 2012 death penalty abolition vote in California as something of a referendum on this question. But California completed three executions in 2005 and 2006, and voters in that state at least had a reasonable basis to hope and believe that executions might resume at some point in the not too distant future.)

July 21, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

"Clemency Reform: We're Still Waiting"

The title of this post is the headline of this recent commentary by Julie Stewart, the President of Families Against Mandatory Minimums (FAMM), appearing at The Huffington Post.  Here are excerpts:

A year ago, The Washington Post and ProPublica reported that the Obama administration was set to reverse its poor record on clemency. At the time, President Obama was coming under growing pressure from sentencing law experts, sentencing reform groups, and civil rights organizations for granting fewer commutations and pardons than any president in modern history. Frustration was high because, in 2008, then-candidate Obama had railed against lengthy mandatory minimum sentences for nonviolent offenders, a growing population within the federal prison system.

In an apparent attempt to address this frustration as Election Day 2012 approached, an unnamed administration official told the Post-ProPublica, "There will be 76 days between the election and inauguration for the president to exercise his [clemency] power." Advisers said he planned to act whether he won or lost the election.

It didn't happen. Since winning reelection, President Obama has not commuted a single sentence. Instead, during the first nine months of fiscal year 2013, the president has denied 2,232 requests for commutation, more than any other president in history denied in a single year.

Last week, the Justice Department sent a letter to the U.S. Sentencing Commission warning that the growing federal prison population was causing severe budgetary problems. The Department said policymakers were confronted with a stark choice: either "reduce the prison population and prison spending" or be prepared for "fewer prosecutors to bring charges, fewer agents to investigate federal crimes, less support to state and local criminal justice partners, less support for treatment, prevention and intervention programs, and cuts along a range of other criminal justice priorities."

Rather than jeopardize public safety by cutting investigators and prosecutors, the Department recommended that the Sentencing Commission (and Congress) reduce drug penalties for low-level offenders and "focus severe penalties on serious and repeat drug traffickers." The question our country faces, the Department wrote, is "how will those involved in crime policy ensure that every dollar invested in public safety is spent in the most productive way possible?"

If the administration wants to make certain every dollar of our nation's public safety budget is spent productively, as it should, President Obama should begin to exercise his executive clemency authority. For starters, he might look at the 2,000 individuals serving sentences of life without parole for drug crimes. He also should look at the 8,800 individuals serving lengthy crack cocaine sentences that were based on a formula that was repudiated by Congress when it passed the Fair Sentencing Act of 2010....

The pardon power can't fix 30 years of flawed policy, but it can provide meaningful -- and best of all, immediate -- relief to thousands who have already served long sentences and who pose no threat to public safety. It has been a year since the White House said it would get moving on clemency. We're still waiting.

I believe Julie wrote this commentary before the President made his remarks about the Martin/Zimmerman case on Friday.  But Prez Obama said just days ago that the "African American community is also knowledgeable that there is a history of racial disparities in the application of our criminal laws -- everything from the death penalty to enforcement of our drug laws." Rather than simply talk about what he views as "history of racial disparities in the application of our criminal laws," perhaps Prez Obama might think about actually doing something about them by, for example, granting at least a few commutations to at least a few federal prisoners still serving extreme crack sentences under the pre-FSA 100-1 drug quantity sentencing ratio.

Sadly, it seems yet again that our nation's first African-American President (as well as its first African-American Attorney General) are far more eager to talk the talk than to walk the walk when it comes to criminal justice reform.

UPDATE:  I have just seen that Mark Osler has forcefully argued that the Obama Administration should be getting to work on crack clemencies rather than fly-speck the Zimmerman case in this commentary at MSNBC headlined "The speck in Florida’s eye, and the log in DOJ’s."  Here is one key paragraph from Mark's commentary:

For this administration to re-open the Zimmerman case, with all the resources that will take, would be the equivalent of pointing at the speck in Florida’s eye while ignoring the log in its own. While the Trayvon Martin case involved one tragedy, more than 5,000 African-Americans remain in prison under lengthy federal sentences under a sentencing regime which has now been rejected by all three branches of government. That scheme — which sentenced defendants to the same mandatory minimum term for either 500 grams of powder cocaine or just 5 grams of crack — was rejected by the administration, by the courts, and finally in 2010 by Congress, which reduced the ratio from 100-1 to 18-1.

July 21, 2013 in Clemency and Pardons, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6) | TrackBack