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August 16, 2013

Iowa Supreme Court rules in favor of juve defendants in three post-Graham appeals

As reported in this local article, headlined "Hundreds of juveniles could appeal felony sentences under Iowa court rulings," the Iowa Supreme COurt handed down three notable opinions today that operationalize the US Supreme Court's opinion in Graham concerning LWOP sentences for juve non-homicide offendes. Here are the basics:

Hundreds of juveniles convicted of felonies could apply to have their sentences reviewed under three decisions handed down Friday by the Iowa Supreme Court.

Iowa's high court upheld a lower court's decision to reduce the sentence of Jeffrey Ragland, now 44, to life in prison with a possibility of parole after 25 years. Ragland, when he was 17 was convicted of first-degree murder, which carries a mandatory sentence of life in prison without parole, even though he did not swing the tire iron that killed a man.

The Iowa court also ordered two other juvenile cases for resentencing that did not involve mandatory life sentences without parole: Denem Anthony Null, now 20, is serving a minimum sentence of more than 52 years for a 2010 murder and robbery. He was 16 at the time of his crimes. Desirae Monique Pearson, now 19, is serving a minimum of 35 years for robbery and burglary committed in 2010....

In today's rulings, the court said Gov. Terry Branstad overreached last year when he sought to keep 38 juveniles in prison who were convicted to life in prison without a chance of parole. The governor imposed life sentences with a chance of parole after 60 years after the U.S. Supreme Court ruled a teenager convicted of murder must be sentenced differently than adults.

Friday's decisions produced sharp divisions on the high court. Justice Edward Mansifeld, in his dissent in Pearson's case, cautioned the high court's broad interpretation of the U.S. Supreme Court ruling regarding juvenile sentencing could produce a "flurry" of court hearings. He said the 425 juvenile inmates serving time in Iowa prisons “may now have a ticket to court and a potential resentencing.”

"This would be unprecedented," said Mansfield, noting other state courts have chosen to reconsider sentences that locked up juveniles for life without parole.

The impact of the court’s decision remains to be seen. Dozens, or even hundreds of cases, spread across Iowa should not strain the court system, said Robert Rigg, a Drake University law professor. The fact that juveniles convicted of serious felonies can ask for new sentences only opens the door to a hearing, and does not guarantee anything beyond that, Rigg said. The high court has required a judge consider a variety of factors during sentencing, such as a youth's history, socioeconomic background, history of substance abuse and psychiatric evaluations, he said.

All this information is already gathered. But under mandatory sentencing laws, a judge is not allowed to consider these factors, Rigg said. "When we have mandatory minimums, you order these investigations but can't use them in sentencing," Rigg said.

Gov. Terry Branstad intends to work with the legislature to establish criminal sentences that keeps convicted juveniles in prison, said Tim Albrecht, the governor’s spokesman. The high court’s decision does not affect the governor’s authority to grant clemency, which includes commutation of life sentences, he said. “Victims must never be re-victimized and can never be forgotten from the process,” Albrecht said. “The governor and lieutenant governor look forward to working with the Iowa Legislature to find a way to keep dangerous juvenile murderers off the streets and keep Iowans safe.”

Lawmakers could find it difficult to change the state's juvenile sentencing laws if they disagree with the court's rulings, because justices used the Iowa constitution to make its case. Those who disagreed with the court's 2009 decision that legalized same sex marriage ran into similar roadblocks, said Rigg, the Drake professor, who noted this approach also means the decision can't be appealed to the U.S. Supreme Court.

State law until last year required anyone sentenced for first-degree murder, regardless of age, to spend life in prison without parole. Other mandatory sentences also existed for serious felonies. In June 2012, though, U.S. Supreme Court in Miller v. Alabama found such sentences to be cruel and unusual based on brain research showing that juveniles are less culpable for their crimes due to differences in brain development and impulse control.

Branstad's immediate response to that federal ruling was a blanket commutation order that allowed parole for teen murderers only after they had spent 60 years behind bars. That move was widely criticized by lawyers and advocates for the 38 people serving time for such murders. Several of the offenders are appealing saying that 60 years still constitutes a long period of time behind bars....

After the U.S. Supreme Court, Ragland's attorney sought parole for his client. The district court ruled that Branstad exceeded his authority and resentenced Ragland to life in prison with the possibility of parole after 25 years.

The Iowa Supreme Court, in Friday's unanimous decision, upheld the lower court's ruling. The court agreed with the district court's findings that the governor's commutation still amounted to a life sentence without parole. Ragland would be 78 before he could possibly be released and near the end of his statistical life expectancy....

The court continued in its opinion: “In light of our increased understanding of the decision making of youths, the sentencing process must be tailored to account in a meaningful way for the attributes of juveniles that are distinct from adult conduct. At the core of all of this also lies the profound sense of what a person loses by beginning to serve a lifetime of incarceration as a youth.”

In a concurring opinion, Justice David Wiggins wrote that Branstad’s imposition of a sentence “might constitute a denial of due process.” In his concurring opinion Justice Bruce Zager wrote that he believed Branstad exceeded his constitutional authority when Branstad removed Ragland’s ability to earn good time credit against the commuted sentence.

Jon Kinnamon, Ragland’s attorney, said the court’s decision will open the door for his client to seek parole. He doesn’t know when Ragland’s case could be reviewed by the board, he said. He said he planned to contact Ragland and his family yet today. “I would presume that the next step would be that he would be in front of the parole board,” he said.

All three of the Iowa Supreme Court opinions are available via this webpage, and the Ragland opinion reference above is at this link. The longest opinion of the three is in Iowa v. Null, and its 83 pages can be found at this link.

August 16, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

"Lawyers Debate Best Ways To Sell Marijuana -- No Joke"

The title of this post is the headline of this new Forbes commentary, which gets started this way:

No joke. At the recently concluded American Bar Association Annual Meeting in San Francisco–as at most other gatherings–lawyers like to talk. They may be contentious or cooperative, but they do like to talk. Especially about something controversial, and especially about outsmarting the government.

From that viewpoint, medical marijuana is a perfect storm. And the lawyers don’t need munchies to talk about it. California is one of many states in which the medical marijuana industry – and the lawyers that represent its players – struggle for survival and legitimacy.

 

Prosecutors continue to take a hard line on marijuana infractions. And some lawyers in private practice are looking at the best way to make sales. Mind you, we’re talking about legal sales of medical marijuana.

It’s that old oil and water issue of federal v. state law. Many states — 21 of them now — have legalized marijuana for medical use. Several states — Washington and Colorado — have legalized it completely. Yet under federal law, marijuana is still a Schedule 1 controlled substance.

No matter how good a patient’s medical needs may be or how many doctors line up on the patient’s behalf, marijuana is still a no-no to the feds. And this is not merely academic. The enforcement of federal law is real, no matter what state law allows. Given the prevalence of medical marijuana dispensaries in California and elsewhere, this issue is unlikely to go away entirely anytime soon.

August 16, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2) | TrackBack

NY Times op-ed explains "How to Really End Mass Incarceration"

Vanita Gupta, deputy legal director at the American Civil Liberties Union, has this new op-ed in the New York Times providing a follow-up to AG Eric Holder's sentencing speech. The whole piece is today's must-read, and here is an excerpt:

For lasting national impact we need to look at the states, where most criminal defendants are sentenced.  Over the past few years, a quiet revolution has been brewing in state capitals.  Historically low crime rates and shrinking state coffers have led to a nascent consensus among lawmakers and advocates across the ideological spectrum that our addiction to incarceration is not sustainable, effective or humane. Republican governors in cash-strapped states have been among those leading the charge. States as varied as Texas, New York, Colorado and Michigan have passed reforms that have stabilized or significantly reduced prison populations without increasing crime.

What Mr. Holder has done is turn up the dial, lending his imprimatur to a growing sense of national urgency and moral necessity.  The muted reaction to his announcement from ardent conservatives is a reflection of the shift in debate.

But this is no time to rest.  Those who seek a fairer criminal justice system, unclouded by racial bias, must at a minimum demand that the government eliminate mandatory minimum sentences, which tie judges’ hands; rescind three-strikes laws, which often make no distinction between, say, armed assault and auto theft; amend “truth in sentencing” statutes, which prohibit early release for good behavior; and recalibrate drug policies, starting with decriminalization of marijuana possession and investment in substance-abuse prevention and treatment.  Federal aid to state and local agencies, like the Edward Byrne Memorial Justice Assistance Grant and the Community Oriented Policing Services, must prioritize diversion and rehabilitation over arrest and incarceration.

August 16, 2013 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (25) | TrackBack

"Attorney Competence in an Age of Plea Bargaining -- and Econometrics"

The title of this post is the title of this notable new paper by Jeffrey Bellin now appearing on SSRN. Here is the abstract:

This Essay explores the concept of attorney competence in a criminal justice system dominated by plea bargaining. It focuses, in particular, on the results of a widely-reported empirical study of Philadelphia murder cases that found “vast” differences in legal outcomes based on the type of defense attorney assigned to the case.

The first part of the Essay explores the implications of these empirical findings, which appear to stem from a counter-intuitive form of professional competence, persistence in convincing one’s client to plead guilty. The findings are particularly intriguing in light of the Supreme Court’s recent expansion of ineffective assistance of counsel claims into America’s untidy plea bargaining regime.

The second part of the Essay highlights the extraordinary empirical methods employed to unearth the findings described in Part I. As empiricists apply increasingly sophisticated tools to the extraordinarily complex criminal justice system, gaining insight into the advantages and shortcomings of various methodological approaches can be just as important for those interested in criminal justice as any particular study’s substantive contributions.

August 16, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

August 15, 2013

Seeking suggestions for "must-reads" for my Marijuana Law, Policy & Reform seminar

As regular readers may recall, I will have the unique honor and distinct pleasure of teaching a (ground-breaking?) law school seminar this Fall semester titled "Marijuana Law, Policy & Reform."  The seminar starts next week, and I am trying to finalize my (necessarily tentative) reading list for the first part of the semester.  As the title of this post indicates, I am eager now to get some concrete suggestions about what others would consider to be "must-reads" for the students in this seminar.

I am very pleased to be able to utilize Controlled Substances: Crime, Regulation, and Policy, a brand-new casebook by Professor Alex Kreit, as the primary text for the seminar.  Students will be exposed via big parts of this book to lots of great general readings on drug regulation and prohibtion debates, as well as lots of specific materials on medical and recreational marijuana laws and policies.  In addition, I have just created this new blog, titled simply "Marijuana Law, Policy & Reform," where I plan to provide new resources and materials for student consideration (e.g., I have already linked/discussed AG Holder's speech via this post over there).

But, especially based on terrific feedback I have received via my prior posts about my new seminar, I suspect some folks may have some especially informed and/or innovative thoughts about some (student-friendly) readings that I must make sure to have my seminar students read.  If so, please share those thoughts in the comments.

Cross-posted at PrawfBlawg

A few related prior posts:

August 15, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing | Permalink | Comments (5) | TrackBack

Some of the latest must-reads from Judge Richard Kopf

Regular readers of this blog have probably already figured out they ought also be regular readers of U.S. District Court Judge Richard Kopf's notable blog, "Hercules and the Umpire." These three recent posts (as well as some comment thereto) on topics important to sentencing law and policy help highlight why:

August 15, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack

How should the US Sentencing Commission's priorities and work be impacted by AG Holder's recent sentencing speech and actions?

The question in the title of this post is prompted in part by the fact that, as I write this post, the US Sentencing Commission is in the midst of a formal public meeting in DC which has as its final agenda item "Vote on Final Policy Priorities for 2013–2014." It is also motivated by the fact that the Attorney General Eric Holder's potent remarks to the ABA earlier this week, covered lots of federal sentencing ground, made the profound claim that our "criminal justice system ... is in too many respects broken," ordered lots of sentencing-focused reforms to the policies and practices of federal prosecutors, and yet did not make a single mention of the U.S. Sentencing Commission (though he did reference a bit of USSC research).

The USSC has usefully posted on this helpful webpage many of the informed and copious comments it received over the summer, and that includes this detailed 18-page letter to the Commission from AG Holder's Department of Justice which actually previewed back in July many of the themes and ideas stressed in AG Holder's speech.  (That USSC page also has posted my own little four-page contribution discussing what I think should now be priorities for the Commission.)

But, of course, all the July comments sent to the US Sentencing Commission came before Holder's big speech a few days ago.  And I am certain my own recommendations to the USSC might have been at least stated somewhat differently if I had the AG's text and policy changes in hand when I authored them.  More broadly, I suspect lots of different folks may have lots of different views about just how the USSC ought to consider and respond to what AG Holder did and said earlier this week.  I would really like to hear some of these views in the comments.

Some recent and older related posts about AG Holder's speech the new federal politics of sentencing:

UPDATE Following its public meeting today, the USSC released this press release which starts this way: "The United States Sentencing Commission today unanimously voted on its list of priorities for the coming year, including consideration of federal drug sentences and continued work on addressing concerns with mandatory minimum penalties."  Here is more from the release:

The Commission set as its top priority continuing to work with Congress to implement the recommendations in its 2011 report on federal mandatory minimum penalties, which included recommendations that Congress reduce the severity and scope of mandatory minimum penalties and consider expanding the “safety valve” statute which exempts certain low-level non-violent offenders from mandatory minimum penalties.

The Commission also set out as an important new priority reviewing the sentencing guidelines applicable to drug offenses, including consideration of changing the guideline levels based on drug quantities.  Drug offenders account for nearly half of all federal inmates, and an adjustment to the Drug Quantity Tables in the sentencing guidelines could have a significant impact on sentence lengths and prison populations.

“With a growing crisis in federal prison populations and budgets, it is timely and important for us to examine mandatory minimum penalties and drug sentences, which contribute significantly to the federal prison population,” Judge Patti Saris, Chair of the Commission, said. “These reviews are key components of the Commission’s ongoing work to further the goals of the Sentencing Reform Act that the federal sentencing scheme and the guidelines be flexible, certain, and fair.”

The Commission noted in its priorities a focus on fulfilling its statutory mandate to work to reduce overcapacity in federal prisons. “The Commission is looking forward to a serious and thoughtful reconsideration of some of the sentencing guidelines which most strongly impact the federal criminal justice system,” Judge Saris said.  “I am glad that members of Congress from both parties and the Attorney General are engaged in similar efforts.”...

The Commission annually identifies policy priorities in accordance with its statutory authority and responsibility to periodically review, analyze, and revise federal sentencing guidelines.  The Commission published tentative priorities and invited public comment in May and received more than 14,000 letters of public comment in response.

August 15, 2013 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (16) | TrackBack

"White women sent to Ohio prisons in record numbers, reports say"

The title of this post is the headline of this notable new press report about some notable criminal justice data coming out of the Buckeye State.  Here are the details:

Amanda Lane is the face of Ohio's fastest-growing prison trend. Lane, 28, is white and from rural Pickaway County, where she was convicted of drug charges and sentenced to 18 months in prison. The state's prisons are filling up with people just like her, a surge that has shocked researchers and experts.

White women, many from rural Ohio, are the fastest growing population in Ohio prisons. In fact, they made up 80 percent of the female felons sentenced to prison between June 30, 2012, and July 1, or fiscal year 2013, according to state records.

Compare that to fiscal year 2003, when white women sentenced to prison made up 55 percent of females in prison. In 1998, they made up 43 percent, according to state records.

On June 1, there were 3,974 female inmates in Ohio prisons; 2,962 were white, or nearly 75 percent. Nationally, the numbers of white women sentenced to prison rose 48 percent from 2000 to 2009, according to the Sentencing Project, a Washington, D.C., think tank. "It's a major shift," said Steve Van Dine, chief of the bureau of research for the Ohio Department of Rehabilitation and Correction, speaking about the trend here. "It's rather dramatic."

Researchers say it is clear where many of the the numbers are coming from: rural Ohio. "That's the thing that jumped out at me," said James Austin, a national researcher who studied women in Ohio prisons through a grant from the U.S. Justice Department. "The numbers weren't coming from Cleveland or Columbus, but from predominantly white, rural counties."...

In the men, the percentages have changed, as the number of whites sentenced to prison has grown. In June, there are 22,880 white men in prison, while there are 21,864 black men. But those numbers are not as dramatic as the shifts seen in women felons.

"I tend to believe that judges in the more rural counties tend to sentence people more harshly," said Mike Huff, a former assistant Athens County prosecutor who now handles criminal defense work. "In rural counties, it is a big deal when someone gets caught making methamphetamine or selling drugs. People talk about it. They don't want that stuff around. Small newspapers and radio stations report it. It's big news, and judges realize that."

In a 2006 report for Ohio prisons, Austin found that "the increase in admissions has been largely limited to white females who tend to come from the more rural and suburban areas of the state. Compared to males, female admissions tend to be more white, older convicted of a non-violent crime, have short sentences (and) no prior incarcerations."...

Austin's report said one of the key reasons for the growth of white women in prison is that smaller, rural counties have a limited number of community-based programs for women, meaning judges have few programming options in sentencings. "In smaller counties, there are, generally, fewer programs for women," Austin said in an interview.

August 15, 2013 in Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (6) | TrackBack

August 14, 2013

"Accuracy in Sentencing"

The title of this post is the title of this interesting looking new paper by Brandon Garrett now available via SSRN. Here is the abstract:

A host of errors can occur at sentencing, but whether a particular sentencing error can be remedied may depend on whether judges characterize errors as involving a “miscarriage of justice” — that is, a type of claim of innocence.  The Supreme Court’s “miscarriage of justice” standard, created as an exception to excuse procedural barriers in the context of federal habeas corpus review, has colonized a wide range of areas of law, from “plain error” review on appeal, to excusing appeal waivers, the scope of cognizable claims under 28 U.S.C. § 2255, the post-conviction statute for federal prisoners, and the “Savings Clause” that permits resort to habeas corpus rather than § 2255.  That standard requires a judge to ask whether a reasonable decisionmaker would more likely than not reach the same result.  However, the use of the miscarriage of justice standard with respect to claims of sentencing error remains quite unsettled.

In this essay, I provide a taxonomy of types of innocence of sentence claims, and describe how each has developed, focusing on federal courts. I question whether finality should play the same role regarding correction of errors in sentences, and I propose that a single miscarriage of justice standard apply to all types of sentencing error claims, when not considering on appeal under reasonableness review. Finally, I briefly describe how changes to the sentencing process or sentencing guidelines could also reflect certain concerns with accuracy.

August 14, 2013 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

Lots of (mostly positive) reactions to AG Holder's big sentencing speech

In the last 48 hours, I have seen lots and lots of notable reactions and commentary in the wake of Attorney General Eric Holder's remarks to the ABA calling for significant sentencing reforms.  Nearly all have been relatively positive, and I believe I have seen more expressions of concern that AG Holder did not go far enough than that he went too far in urging criminal justice reforms and in changing some DOJ policies.  Here is a sampling of some of the more high-profile and/or substantial discussions I have seen:

UPDATE:  I put together this op-ed for the Los Angeles Times explaining my basic reactions to the Attorney General speech and the paper gave it this title: "Atty. Gen. Holder plays catch-up on criminal justice: He should do more to seize the sentencing reform moment." Here is how it concludes:

Before a new course can be set, the criminal justice ship has to navigate away from the old "get-tough" course, and that won't be easy.  So it's perhaps understandable that Holder is, for now, talking only about the need for bold steps rather than taking them.  But because the political and economic winds (not to mention the moral ones) are all starting to blow in the same direction on federal sentencing reform, the administration shouldn't wait too long before sailing full speed ahead.

August 14, 2013 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Recommended reading, Who Sentences? | Permalink | Comments (18) | TrackBack

NYC Comptroller and mayoral candidate John Liu advocating marijuana legalization

NYC Mayoral Race.JPEG-057d3This new AP story, which provides further proof of a fast-moving, sea-change in marijuana reform and policy discussions, reports that "New York City Comptroller John Liu is proposing a historic overhaul of the city’s marijuana laws, believing that legalizing medical marijuana and allowing adults to possess an ounce of pot for recreational use would pump more than $400 million into the city’s coffers." Here is more:

The sweeping change, which would put New York at the forefront of a growing national debate over use of the drug, calls for recreational marijuana to be regulated and taxed like alcohol and tobacco.

Liu, the city’s top financial officer who is also running for mayor, commissioned a report that finds that New York City has a $1.65 billion marijuana market. If a 20 percent excise tax and the standard 8.875 percent city sales tax is imposed on the pot sales, it would yield $400 million annually in revenue, Liu believes. Another $31 million could be saved a year in law enforcement and court costs.

“It is economically and socially just to tax it,” Liu told the Associated Press in an interview Tuesday. “We can eliminate some of the criminal nature that surrounds the drug and obtain revenue from it.”

The comptroller’s plan, which likely faces stiff opposition from state lawmakers who would have to authorize it, calls for the state to oversee private businesses selling pot. Licenses would be required, fees would be charged, and using the drug in public or while driving would be prohibited.

Liu’s team calculated that 900,000 city pot smokers spend about $2,000 a year on the drug. He is calling for the revenue surge to be used to reduce tuition at the City University of New York for city residents.

Twenty states and the District of Columbia currently permit medicinal marijuana. Two states, Washington and Colorado, last year voted to allow recreational marijuana for adults.

Officials in both states predicted that the change would be create a surge in revenue — up to $60 million annually in Colorado alone, according to supporters there. But while it is too soon to evaluate the exact economic ramifications in those states, experts do believe that the city budget would be bolstered by a similar measure.

“Now, people selling the product are doing it under the table and aren’t paying any taxes on it,” said Carl Davis, Senior Analyst at the Institute on Taxation and Economic Policy. “That would change. And, it stands to reason, people would also start legally producing it locally, so there would be economic benefits there too.”

One of the nation’s leading pro-marijuana industry groups applauded Liu’s proposal. “We recognize that marijuana is better sold behind the counter than on the streets,” said Betty Aldworth, deputy director of the National Cannabis Industry Association.

But neither Liu nor any city official has the authority to decriminalize marijuana; that can only be done by a law that passes the state legislature and is then signed by Gov. Andrew Cuomo.

Cuomo has steadfastly opposed any decriminalization efforts and is seen as unlikely to waver from that stance, particularly as he approaches a re-election campaign next year. The Republicans who share majority control of the Senate have also opposed decriminalization proposals. Neither Cuomo nor the Senate GOP leadership would comment on Liu’s proposal.

Mayor Michael Bloomberg, whose support could sway minds in Albany, has also long opposed efforts to legalize marijuana. His top spokesman declined comment on Liu’s proposal.

Liu is currently placing fifth in Democratic mayoral polls.

I think this story is notable and significant not only because a notable NYC politician is making a public case for marijuana legalization, but also because it seems likely to get this mayoral candidate a lot more media attention in the weeks and months ahead. And if this pot legalization advocacy not only improves Liu's media hits, but also his overall standing in the mayoral pols, lots of other politician are sure to take note.

August 14, 2013 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (5) | TrackBack

Should prosecutors in Florida and Oklahoma pursue capital charges against Whitey Bulger?

The question in the title of this post prompted by this Boston Globe article, which is headlined "Death penalty possible for Bulger in Fla., Okla.,"

With his federal racketeering trial completed, James “Whitey” Bulger still faces possible death penalty trials in Florida and Oklahoma.

[T]he Boston jury found that prosecutors had proved Bulger’s involvement in the 1982 slaying of businessman John B. Callahan in Florida.  A spokesman for Katherine Fernandez Rundle, the state attorney for Miami-Dade County, where Bulger is facing a murder indictment for Callahan’s slaying, welcomed the news that the Boston jury found prosecutors had proved his role in the killing. “I think that indicates that a jury, once given the evidence, came to the same conclusions that we did,” said the spokesman, Ed Griffith. “That’s why we indicted him.”

Griffith declined to say when, or if, Florida prosecutors plan to seek the transfer of Bulger to their jurisdiction, saying only that they will “evaluate our course of action” after the gangster is sentenced in Boston.  Griffith also would not say if Florida authorities would seek the death penalty. “You don’t make those decisions in advance,” Griffith said....

Asked if Fernandez Rundle was eager to prosecute Bulger, Griffith said, “Anybody charged with first-degree murder deserves prosecution. That’s a prosecutor’s position anywhere, any time.”...

Michael Von Zamft, the Miami Dade prosecutor who secured the conviction of disgraced FBI agent John Connolly in Callahan’s death, also would not speculate on whether his office will try Bulger in Florida.... He said he expects Bulger to receive a life sentence in Boston. “If that happens, then of course we might have to, given his age ... consider whether it’s advantageous to try him or let him negotiate something” with Florida prosecutors, Von Zamft said.

Also in Boston, the federal jury found that prosecutors had proved Bulger’s involvement in the 1981 murder of World Jai Alai owner Roger Wheeler in Oklahoma.

Tim Harris, the district attorney for Tulsa County, where Bulger is charged with Wheeler’s murder, declined to comment on the Oklahoma case. He did, however, praise the Boston jurors....  He added, “After Federal sentencing we will access his punishment, review his appeal rights and determine what is practical and feasible under our analysis of the facts and circumstances, including our available resources.”

I am especially interested to hear from current/former prosecutors, as well as from strong proponents of the death penalty, concerning (1) whether they agree with the sentiment expressed above that anyone "charged with first-degree murder deserves prosecution" (my emphasis added), and (2) whether they believe that, notwithstanding that the elderly Bulger is sure to get a life sentence from the feds, that justice calls for seeking a state death sentence (or two) against this multiple murderer.

I suspect most folks would be quick to suggest, based on practical issues like costs and delay, that neither Florida or Oklahoma should bother to actively seek to have Bulger sent to death row. But strong advocates of the death penalty often complain about abolitionists who cite practical issues like cost and delay to justify eliminating the death penalty altogether.  Thus, I am especially interested and curious to hear from capital punishment advocates as to whether they believe that, for a calculating mass killer like Bulger already facing an LWOP term,  it still remains important to seek to impose upon him our society's ultimate punishment.

August 14, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

"Both Jacksons get prison terms, Jackson Jr. to serve first"

The title of this post is the headline of this Chicago Tribune report on today's high-profile federal sentencing in DC.  Here are some of the details:

Former Rep. Jesse Jackson Jr. was sentenced today to 30 months behind bars and his wife, Sandi, got a year in prison for separate felonies involving the misspending of about $750,000 in campaign funds.

In addition to the 2.5 years in prison, Jackson Jr. was sentenced to three years of supervised release. Sandi Jackson was ordered to serve 12 months of supervised release following her prison term.

The judge emphasized that Sandi Jackson was sentenced to exactly 12 months, not the year-and-a-day sentence that some criminals get. Defendants sentenced to a year or less cannot qualify for time off for good behavior in prison. But those sentenced to a year and a day can qualify, which means they may end up serving only about 10 months. Under this rule, Sandi Jackson must serve the full year.

Both Jacksons wept in court as they addressed the judge before sentencing. Jackson Jr. apologized for his crimes and expressed special regrets to his mother and father. “Your honor, throughout this process I’ve asked the government and the court to hold me and only me accountable for my actions,” he said.

When Jackson Jr. spoke, he voice was firm except for the few times he wept openly and paused to dry his eyes with tissue, blow his nose and collect himself. “I am the example for the whole Congress,” he said. “I understand that. I didn’t separate my personal life from my political activities, and I couldn’t have been more wrong.”

Talking about his desire to be sent to a federal prison camp in Alabama, he said: “I want to make it a little inconvenient for everybody to get to me.” He said he hoped that his wife could earn enough money in his absence to keep the family together. “When I get back, I’ll take on that burden,” Jackson Jr. said. “By then I hope my children will be old enough that the pain I caused will be easier to bear.”

After a break in the hearing, Sandi Jackson, a former Chicago alderman, got her opportunity to address the court. She started by telling the judge: “I am a little nervous, so I have a written statement that I would like to read to you.”

She continued: “I want to begin by apologizing first to my family, to my friends, my community and my constiuents for the actions that brought me here today." She said she had caused “disappointment in my community” and had “put my family unit in peril.”

“My heart breaks every day with the pain this has caused my babies,” she continued, weeping. “I ask to be parent, provider and support system that my babies will require in the difficult months ahead.” Their children are ages 13 and 9.

Earlier, Jackson Jr.’s lawyer Reid Weingarten said his client felt “horror, shame and distress” over his crimes. But Weingarten also attempted to downplay the impact of Jackson Jr.’s actions, since he took money from his own campaign fund. It’s not as if there are widows and orphans outside the courthouse who are victims and asking for his head, Weingarten said. “This is not a Ponzi scheme,” he said.

Weingarten asked for an 18-month sentence for Jackson Jr. and noted, “He suffers from a very, very serious mental health disease.” He identified the ex-congressman’s illness as bipolar disorder, and conceded that it was relevant even though “we didn’t plead guilty by reason of insanity.”

Matt Graves, an assistant U.S. attorney, countered that Jackson Jr.’s crimes represented one of the largest cases of theft from a campaign treasury that had ever been prosecuted. Graves also took a shot at Jackson Jr.’s reported condition of bipolar disorder, saying normally when mental health issues are litigated in court, there was expert testimony, discovery and an examination of the defendant — and said none had occurred in this case.

“When one looks at the facts,” Graves said, “it’s quite clear that there’s no there there.” He decried Jackson Jr.’s “wasted talent” and “what he threw away.”

Graves said Sandi Jackson's crimes were serious and had occurred over many years. He also pointed out that defendants in federal courts across the country with children were given prison terms.

Jackson Jr., 48, and his wife, Sandi, 49, stood before federal Judge Amy Berman Jackson, who is no relation to the defendants. He pleaded guilty to a felony conspiracy count involving the $750,000 and she pleaded guilty to a related charge of failing to report about $600,000 in taxable income....

The Jacksons, both Democrats, pleaded guilty in February after a yearslong spending spree with campaign funds. Among the loot: a $43,000 Rolex watch, furs, vacations, two mounted elk heads and memorabilia ranging from a Michael Jackson fedora to an Eddie Van Halen guitar.

Prosecutors urged that he serve four years in prison and her 18 months. Defense lawyers wanted probation for her and a lighter term for him.

Jackson Jr. was in the House of Representatives from 1995 to 2012. Sandi Jackson served on the City Council from 2007 until last January. Both resigned their positions leading up to their guilty pleas.

August 14, 2013 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (10) | TrackBack

August 13, 2013

Shouldn't AG Holder's speech impact federal judges at sentencing ... such as Jesse Jackson Jr.'s?

In this post late yesterday, I provided a lot of lengthy excerpts from Attorney General Eric Holder's remarks to the ABA calling for significant sentencing reforms.  Today I have been thinking about an abridged summary of the AG's speech which, were I advocating for a federal defendant in court at sentencing, I might commit to memory:

Attorney General Eric Holder, the nation's top prosecutor and leader of the federal criminal justice system, has expressly complained that “our system is in too many respects broken.”  AG Holder has called some federal mandatory minimum prison terms “excessive” and “draconian” and asserted “they oftentimes generate unfairly long sentences”; he has asserted that “people of color often face harsher punishments than their peers” and called this “reality” both “shameful” and “unworthy of our great country.” 

Most fundamentally, AG Holder has now repeatedly lamented that “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason,” and he has cajoled “every member of our profession” to recognize that “it’s well past time” to consider a “fundamentally new approach” in order to “break free of a tired status quo” and “take bold steps to reform and strengthen America’s criminal justice system.”

Indeed, AG Holder has said that “together we must declare that we will no longer settle for such an unjust and unsustainable status quo” and that “this is our solemn obligation, as stewards of the law, and servants of those whom it protects and empowers.” For these reasons, your honor, I respectfully contend that imposing a guideline sentence (or whatever prison sentence sought by the prosecution) would risk reinforcing an unjust and unsustainable status quo.
I would think this advocacy could and should be especially effective when defendants are people of color whom, according to the US Attorney General, "often face harsher punishments than their peers.” People like, for example, Jesse Jackson Jr. and Sandi Jackson who, as detailed in recent press reports here and here, are scheduled to be sentencing tomorrow in federal district court in DC.

August 13, 2013 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (24) | TrackBack

US District Judge tells Michigan that all its mandatory juve LWOP sentences are unconstitutional

As reported in this local piece, headlined "Judge upholds ban on life, no parole for juveniles in Michigan," a federal district judge in the state up north has issued a new little opinion with significant impact for juve LWOP defendants sentenced before Miller.  Here are the basics:

A federal judge ruled Monday that Michigan must grant parole consideration to anyone convicted of murder as a juvenile, rejecting the state attorney general’s request that an earlier decision to implement the U.S. Supreme Court’s ban on no-parole sentences for juveniles apply only to the convicts who challenged the state’s law.

Michigan has an automatic life-without-parole sentence for first-degree murder convictions, and applies at any age. The U.S. Supreme Court ruled last year that it is cruel and unusual punishment to deny parole consideration to those who are under 18 when convicted. The state said at the time said it had more than 350 prisoners in that category, out of about 2,000 nationwide....

Acting on a 2010 suit by nine Michigan prisoners who received no-parole sentences as juveniles, U.S. District Judge John Corbett O’Meara in Ann Arbor ruled Jan. 30 that Michigan must allow the possibility of parole in cases where the defendant is under 18 when convicted. The U.S. Supreme Court ruled on mandatory no-parole punishments while that lawsuit was pending.

Michigan Attorney General Bill Schuette filed a motion that O’Meara’s decision apply only to those who brought the suit, while the ACLU asked that it apply to those now serving life without parole for convictions as juveniles. Schuette’s office has contended that the Supreme Court’s decision didn’t automatically apply to past sentences, only to those sentenced since the 2012 high court ruling.

On Monday, O’Meara rejected Schuette’s request and said the high court’s ruling applied to past as well as future sentences. State prosecutors “believe they may enforce the statute, which the court has declared unconstitutional, with respect to other juveniles sentenced to life in prison,” the judge wrote. “As this court now makes clear, defendants are incorrect.”

“Every person convicted of first-degree murder in the state of Michigan as a juvenile and who was sentenced to life in prison shall be eligible for parole,” the judge said.

Schuette spokeswoman Joy Yearout said the attorney general “disagrees strongly” with the ruling and said it would subject victims’ families “to re-live horrible tragedies at future parole hearings for teenage murderers already sentenced by a jury of their peers to life in prison without parole.”

“Once a final order is entered in this case, Attorney General Schuette intends to file an immediate appeal,” Yearout said in an email.

The order referenced here runs only two pages and is available at this link.  I think it kind of "resolves" the issue of whether and how the Supreme Court's Miller rulong applies retroactively in a potent and (unduly?) simplistic way.   It will be interest to see just how the Michigan AG develops his arguments on appeal and what the Sixth Circuit ultimately has to say about them.

August 13, 2013 in Assessing Miller and its aftermath, Jackson and Miller Eighth Amendment cases, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4) | TrackBack

New Nebraska study suggests sex offender registry changes pushed by feds may do more harm than good

Ne-sex-offender-recidivism-report2-p1-smallAs reported in this notable local piece, headlined "UNO report: Nebraska sex offender law 'founded more on public emotion than good science'," an important new study suggests that state sex offender registry laws have perhaps been made less effective as a result of reforms prodded by new federal sex offender laws. Here are highlights from the report on the report:

A newly released report questions whether public safety has improved since Nebraska adopted a state law that requires all convicted sex offenders to be listed on a public website.

The law, known as the Adam Walsh Act, was passed in 2009, but has been criticized as being too harsh on former offenders who committed minor crimes, are low risks to reoffend and have now become productive, law-abiding citizens....

On Monday, a report done by the University of Nebraska at Omaha’s Consortium for Crime and Justice Research concluded that the Adam Walsh Act “was founded more on public emotion than good science, which is its fundamental shortcoming.”

The 58-page document stated that Nebraska’s previous system of sex-offender registration, which required only that the highest risk offenders be listed publicly, “did not seem to be broken.” The report, though, stated that it could not be discerned if the previous, or new, registration system was superior in deterring repeat sex offenses.

The adoption of the Adam Walsh Act in Nebraska was controversial and spawned a lawsuit by a group of convicted sex offenders, who said it violated their constitutional rights. It was also praised for removing the subjective decision of whether an offender was at low or high risk to reoffend....

Prior to 2009, only the names and photographs of sex offenders who had committed the most serious offenses and were deemed by the patrol as most likely to reoffend were publicized on the patrol’s website. Under the old system, those who committed minor offenses and were considered a low risk were required to register with law enforcement agencies, but their information wasn’t made public.

Nebraska’s Adam Walsh Act, Legislative Bill 285, required that all sex offenders — low risk and high risk — have their photos and addresses posted on the state website, and to report to local law enforcement officials. The photos are to stay for 15 years for misdemeanor offenses, but as long as 25 years to life for more serious offenses.

The Legislature’s Judiciary Committee two years ago discussed whether to exclude low-risk offenders from the public website, but instead decided to seek more information, via the UNO report, which cost $60,000....

State Sen. Brad Ashford of Omaha, chairman of the Judiciary Committee, said the UNO report provides better data for lawmakers on which to judge the effectiveness of sex offender registries. He said his committee may look at revamping the registration requirements of lower-risk offenders, but that overall, the report showed him that it’s not necessary to repeal the entire Adam Walsh Act. “I don’t see that changing registration laws and going back to tiering them is the answer,” Ashford said.

The senator added that the report’s data will aid his effort to reform state criminal sentences to ease the state’s chronic prison overcrowding. Treating sex offenders outside of prison must be considered, Ashford said, because among state prison inmates, sex offenders make up one of the largest categories....

Among the UNO report’s other findings:

» Recidivism rates for sex offenders were low — more than 97 percent do not reoffend — but were lower following the passage of the Adam Walsh Act. For instance, the recidivism rate for Level 2 (medium-risk) offenders was 0.5 percent after passage of the act and 2.5 percent before....

» Registries that show the addresses of offenders could provide a false sense of security because most sex offenders do not commit crimes in their own neighborhoods. Only 7 percent of such crimes were committed within a mile of an offender’s residence.

The full report, titled simply "Nebraska Sex Offender Registry Study," is available at this link.

August 13, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (17) | TrackBack

Arizona Attorney General sues feds seeking decision on fast-tracking capital habeas cases

As reported in this Wall Street Journal piece, headlined "Arizona Sues to Expedite Death-Penalty Appeals; State Pushes U.S. Justice Department for a Decision on 'Accelerated Status'," the AG of Arizona has had to go to court in order to get the US Department of Justice to make a long-pending decision concerning the capital appeals process. Here are the basics:

Arizona’s attorney general, hoping to speed up appeals in death-penalty cases, sued the federal government Monday for allegedly delaying a decision on whether the state can expedite the process.

Notice of the suit, filed in federal appeals court in Washington Monday, comes after Arizona amended its capital-case procedures to meet congressional requirements passed more than four years ago allowing some states “accelerated status” in death-penalty appeals. The U.S. Justice Department’s “failure to act has deprived [Arizona] of the benefits Congress intended in the form of streamlined procedures,” a statement from Arizona Attorney General Tom Horne’s office said.

The Obama administration is working on rules for how states must comply with the congressional requirements and is expected to publish the rules soon. “We continue to make progress on the rule-making,” a Justice Department official wrote to Mr. Horne in a July 16 letter....

A spokeswoman for Mr. Horne’s office said it takes between 10 and 15 years to carry out an execution once someone is convicted in a death-penalty case in Arizona. There are 122 people currently on death row in Arizona, according to state records.

Mr. Horne said Arizona has made improvements in its handling of death-penalty cases, and that allowing it expedited status could shave as much as a decade off delays in executions.  “If families are able to see justice done in a reasonable time, it helps with recovery and provides closure,” Mr. Horne said, in announcing the suit Monday.  “If they are victimized a second time by undue delays in the federal system, it only adds to their pain and suffering.”...

Accelerated status would require that the federal district court take action on a case within 450 days and the court of appeals respond within 120 days of the filing of the last reply brief, according to the state Attorney General’s office.

August 13, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Key follow-up documents from AG Holder's big sentencing speech

I expect to post today some commentary and reactions to the Attorney General's big and important sentencing speech yesterday (basics here and here).  But, especially for lawyers and public policy advocates, as important as the speech may be some of the documents that the Justice Department released along with the speech.

First, linked via the Justice Department website from the text of AG Holder's speech is this notable eight-page DOJ document titled on its cover "SMART on CRIME: Reforming The Criminal Justice System for the 21st Century." The document expands on many of the themes appearing in AG Holder's speech and even has some of the same key text.  Here are snippets from this introduction of this document:

At the direction of the Attorney General, in early 2013 the Justice Department launched a comprehensive review of the criminal justice system in order to identify reforms that would ensure federal laws are enforced more fairly and — in an era of reduced budgets — more efficiently....

The preliminary results of this review suggest a need for a significant change in our approach to enforcing the nation’s laws.  Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities. However, many aspects of our criminal justice system may actually exacerbate this problem, rather than alleviate it.

The reality is, while the aggressive enforcement of federal criminal statutes remains necessary, we cannot prosecute our way to becoming a safer nation.  To be effective, federal efforts must also focus on prevention and reentry.  In addition, it is time to rethink the nation’s system of mass imprisonment.

Second, and right now available via a link at The Huffington Post, is this offical three-page memorandum from the Attorney General to all US Attorneys explaining in detail the new "Department Policy on Charging Mandatory Minimum Sentences and Recidivist Enhancements in Certain Drug Cases."

August 13, 2013 in Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack

"What Real-World Criminal Cases Tell Us About Genetics Evidence"

The title of this post is the headline of this notable new article on SSRN authored by Deborah Denno. Here is the abstract:

This Article, which is part of a symposium on "Law and Ethics at the Frontier of Genetic Technology," examines an unprecedented experimental study published in Science. The Science study indicated that psychopathic criminal offenders were more likely to receive lighter sentences if a judge was aware of genetic and neurobiological explanations for the offender’s psychopathy.

This Article contends that the study’s conclusions derive from substantial flaws in the study’s design and methodology. The hypothetical case upon which the study is based captures just one narrow and unrepresentative component of how genetic and neurobiological information operates, and the study suffers from serious omissions that affect the validity and reliability of its results.

It is important to call attention to these problems given that the study’s widely-publicized findings are likely to bolster inaccurate perceptions regarding the dangers of allowing behavioral genetics evidence in criminal cases. This Article concludes with a detailed discussion of a number of recent criminal cases involving behavioral genetics evidence. Familiarity with such cases may improve the real-world applicability of future experimental studies exploring the influence of genetics evidence on criminal cases.

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

August 12, 2013

Some sentencing-related highlights from AG Holder's remarks today to the ABA

HolderI am back on line, and now able to link to and provide some extensive excerpts from Attorney General Eric Holder's high-profile remarks earlier today at the Annual Meeting of the American Bar Association's House of Delegates.  Everyone should make time to read AG Holder's remarks in full, but below I will try to excerpt those portions likely to be of greatest interest and import for sentencing fans.  Here goes (with apologies at how much text is excerpted, and with some of my very favorite text in bold and even italics):

In so many ways, today’s ABA is reminding us that, although our laws must be continually updated, our shared dedication to the cause of justice — and the ideals set forth by our Constitution — must remain constant. It is this sense of dedication that brings me to San Francisco today — to enlist your partnership in forging a more just society. To ask for your leadership in reclaiming, once more, the values we hold dear.  And to draw upon the ABA’s legacy of achievement in calling on every member of our profession to question that which is accepted truth; to challenge that which is unjust; to break free of a tired status quo; and to take bold steps to reform and strengthen America’s criminal justice system – in concrete and fundamental ways.

It’s time — in fact, it’s well past time – to address persistent needs and unwarranted disparities by considering a fundamentally new approach. As a prosecutor; a judge; an attorney in private practice; and now, as our nation’s Attorney General, I’ve seen the criminal justice system firsthand, from nearly every angle. While I have the utmost faith in — and dedication to — America’s legal system, we must face the reality that, as it stands, our system is in too many respects broken. The course we are on is far from sustainable. And it is our time — and our duty — to identify those areas we can improve in order to better advance the cause of justice for all Americans.

Even as most crime rates decline, we need to examine new law enforcement strategies —and better allocate resources — to keep pace with today’s continuing threats as violence spikes in some of our greatest cities.  As studies show that six in ten American children are exposed to violence at some point in their lives — and nearly one in four college women experience some form of sexual assault by their senior year — we need fresh solutions for assisting victims and empowering survivors. As the so-called “war on drugs” enters its fifth decade, we need to ask whether it, and the approaches that comprise it, have been truly effective — and build on the Administration’s efforts, led by the Office of National Drug Control Policy, to usher in a new approach.  And with an outsized, unnecessarily large prison population, we need to ensure that incarceration is used to punish, deter, and rehabilitate — not merely to warehouse and forget.

Today, a vicious cycle of poverty, criminality, and incarceration traps too many Americans and weakens too many communities.  And many aspects of our criminal justice system may actually exacerbate these problems, rather than alleviate them.

It’s clear — as we come together today — that too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.  It’s clear, at a basic level, that 20th-century criminal justice solutions are not adequate to overcome our 21st-century challenges.  And it is well past time to implement common sense changes that will foster safer communities from coast to coast.

These are issues the President and I have been talking about for as long as I’ve known him — issues he’s felt strongly about ever since his days as a community organizer on the South Side of Chicago.  He’s worked hard over the years to protect our communities, to keep violent criminals off our streets, and to make sure those who break the law are held accountable.  And he’s also made it part of his mission to reduce the disparities in our criminal justice system.  In Illinois, he passed legislation that addressed racial profiling and trained police departments on how they could avoid racial bias.  And in 2010, this Administration successfully advocated for the reduction of the unjust 100-to-1 sentencing disparity between crack and powder cocaine....

Over the next several months, the President will continue to reach out to Members of Congress from both parties — as well as governors, mayors, and other leaders — to build on the great work being done across the country to reduce violent crime and reform our criminal justice system.  We need to keep taking steps to make sure people feel safe and secure in their homes and communities.  And part of that means doing something about the lives being harmed, not helped, by a criminal justice system that doesn’t serve the American people as well as it should.

At the beginning of this year, I launched a targeted Justice Department review of the federal system — to identify obstacles, inefficiencies, and inequities, and to address ineffective policies.  Today, I am pleased to announce the results of this review — which include a series of significant actions that the Department has undertaken to better protect the American people from crime; to increase support for those who become victims; and to ensure public safety by improving our criminal justice system as a whole. We have studied state systems and been impressed by the policy shifts some have made. I hope other state systems will follow our lead and implement changes as well. The changes I announce today underscore this Administration’s strong commitment to common sense criminal justice reform.  And our efforts must begin with law enforcement.

Particularly in these challenging times — when budgets are tight, federal sequestration has imposed untenable and irresponsible cuts, and leaders across government are being asked to do more with less — coordination between America’s federal, state, local, and tribal law enforcement agencies has never been more important. It’s imperative that we maximize our resources by focusing on protecting national security; combating violent crime; fighting against financial fraud; and safeguarding the most vulnerable members of our society.

This means that federal prosecutors cannot — and should not —bring every case or charge every defendant who stands accused of violating federal law.  Some issues are best handled at the state or local level.  And that’s why I have today directed the United States Attorney community to develop specific, locally-tailored guidelines — consistent with our national priorities — for determining when federal charges should be filed, and when they should not.

I’ve also issued guidance to ensure that every case we bring serves a substantial federal interest and complements the work of our law enforcement partners.  I have directed all U.S. Attorneys to create — and to update — comprehensive anti-violence strategies for badly-afflicted areas within their districts.  And I’ve encouraged them to convene regular law enforcement forums with state and local partners to refine these plans, foster greater efficiency, and facilitate more open communication and cooperation.

By targeting the most serious offenses, prosecuting the most dangerous criminals, directing assistance to crime “hot spots,” and pursuing new ways to promote public safety, deterrence, efficiency, and fairness — we in the federal government can become both smarter and tougher on crime.  By providing leadership to all levels of law enforcement — and bringing intelligence-driven strategies to bear — we can bolster the efforts of local leaders, U.S. Attorneys, and others in the fight against violent crime....

Fifty years ago last March, this landmark ruling [in Gideon] affirmed that every defendant charged with a serious crime has the right to an attorney, even if he or she cannot afford one.  Yet America’s indigent defense systems continue to exist in a state of crisis, and the promise of Gideon is not being met.  To address this crisis, Congress must not only end the forced budget cuts that have decimated public defenders nationwide — they must expand existing indigent defense programs, provide access to counsel for more juvenile defendants, and increase funding for federal public defender offices.  And every legal professional, every member of this audience, must answer the ABA’s call to contribute to this cause through pro bono service — and help realize the promise of equal justice for all.

As we come together this morning, this same promise must lead us all to acknowledge that — although incarceration has a significant role to play in our justice system —widespread incarceration at the federal, state, and local levels is both ineffective and unsustainable.  It imposes a significant economic burden — totaling $80 billion in 2010 alone — and it comes with human and moral costs that are impossible to calculate.

As a nation, we are coldly efficient in our incarceration efforts. While the entire U.S. population has increased by about a third since 1980, the federal prison population has grown at an astonishing rate — by almost 800 percent. It’s still growing – despite the fact that federal prisons are operating at nearly 40 percent above capacity. Even though this country comprises just 5 percent of the world’s population, we incarcerate almost a quarter of the world’s prisoners.  More than 219,000 federal inmates are currently behind bars.  Almost half of them are serving time for drug-related crimes, and many have substance use disorders.  Nine to 10 million more people cycle through America’s local jails each year. And roughly 40 percent of former federal prisoners — and more than 60 percent of former state prisoners — are rearrested or have their supervision revoked within three years after their release, at great cost to American taxpayers and often for technical or minor violations of the terms of their release.

As a society, we pay much too high a price whenever our system fails to deliver outcomes that deter and punish crime, keep us safe, and ensure that those who have paid their debts have the chance to become productive citizens.  Right now, unwarranted disparities are far too common.  As President Obama said last month, it’s time to ask tough questions about how we can strengthen our communities, support young people, and address the fact that young black and Latino men are disproportionately likely to become involved in our criminal justice system — as victims as well as perpetrators.

We also must confront the reality that — once they’re in that system — people of color often face harsher punishments than their peers.  One deeply troubling report, released in February, indicates that – in recent years – black male offenders have received sentences nearly 20 percent longer than those imposed on white males convicted of similar crimes.  This isn’t just unacceptable — it is shameful. It’s unworthy of our great country, and our great legal tradition.  And in response, I have today directed a group of U.S. Attorneys to examine sentencing disparities, and to develop recommendations on how we can address them.

In this area and many others — in ways both large and small — we, as a country, must resolve to do better.  The President and I agree that it’s time to take a pragmatic approach.  And that’s why I am proud to announce today that the Justice Department will take a series of significant actions to recalibrate America’s federal criminal justice system.

We will start by fundamentally rethinking the notion of mandatory minimum sentences for drug-related crimes.  Some statutes that mandate inflexible sentences — regardless of the individual conduct at issue in a particular case — reduce the discretion available to prosecutors, judges, and juries.  Because they oftentimes generate unfairly long sentences, they breed disrespect for the system.  When applied indiscriminately, they do not serve public safety.  They — and some of the enforcement priorities we have set —have had a destabilizing effect on particular communities, largely poor and of color.  And, applied inappropriately, they are ultimately counterproductive.

This is why I have today mandated a modification of the Justice Department’s charging policies so that certain low-level, nonviolent drug offenders who have no ties to large-scale organizations, gangs, or cartels will no longer be charged with offenses that impose draconian mandatory minimum sentences.  They now will be charged with offenses for which the accompanying sentences are better suited to their individual conduct, rather than excessive prison terms more appropriate for violent criminals or drug kingpins.  By reserving the most severe penalties for serious, high-level, or violent drug traffickers, we can better promote public safety, deterrence, and rehabilitation — while making our expenditures smarter and more productive.  We’ve seen that this approach has bipartisan support in Congress — where a number of leaders, including Senators Dick Durbin, Patrick Leahy, Mike Lee, and Rand Paul have introduced what I think is promising legislation aimed at giving federal judges more discretion in applying mandatory minimums to certain drug offenders.  Such legislation will ultimately save our country billions of dollars while keeping us safe.  And the President and I look forward to working with members of both parties to refine and advance these proposals.

Secondly, the Department has now updated its framework for considering compassionate release for inmates facing extraordinary or compelling circumstances — and who pose no threat to the public.  In late April, the Bureau of Prisons expanded the criteria which will be considered for inmates seeking compassionate release for medical reasons.  Today, I can announce additional expansions to our policy — including revised criteria for elderly inmates who did not commit violent crimes and who have served significant portions of their sentences.  Of course, as our primary responsibility, we must ensure that the American public is protected from anyone who may pose a danger to the community.  But considering the applications of nonviolent offenders — through a careful review process that ultimately allows judges to consider whether release is warranted — is the fair thing to do.  And it is the smart thing to do as well, because it will enable us to use our limited resources to house those who pose the greatest threat.

Finally, my colleagues and I are taking steps to identify and share best practices for enhancing the use of diversion programs — such as drug treatment and community service initiatives — that can serve as effective alternatives to incarceration.

Our U.S. Attorneys are leading the way in this regard — working alongside the judiciary to meet safety imperatives while avoiding incarceration in certain cases.  In South Dakota, a joint federal-tribal program has helped to prevent at-risk young people from getting involved in the federal prison system —thereby improving lives, saving taxpayer resources, and keeping communities safer. This is exactly the kind of proven innovation that federal policymakers, and state and tribal leaders, should emulate.  And it’s why the Justice Department is working — through a program called the Justice Reinvestment Initiative — to bring state leaders, local stakeholders, private partners, and federal officials together to comprehensively reform corrections and criminal justice practices.

In recent years, no fewer than 17 states — supported by the Department, and led by governors and legislators of both parties — have directed funding away from prison construction and toward evidence-based programs and services, like treatment and supervision, that are designed to reduce recidivism.  In Kentucky, for example, new legislation has reserved prison beds for the most serious offenders and re-focused resources on community supervision and evidence-based alternative programs.  As a result, the state is projected to reduce its prison population by more than 3,000 over the next 10 years — saving more than $400 million.

In Texas, investments in drug treatment for nonviolent offenders and changes to parole policies brought about a reduction in the prison population of more than 5,000 inmates last year alone.  The same year, similar efforts helped Arkansas reduce its prison population by more than 1,400. From Georgia, North Carolina, and Ohio, to Pennsylvania, Hawaii, and far beyond — reinvestment and serious reform are improving public safety and saving precious resources. Let me be clear: these measures have not compromised public safety.  In fact, many states have seen drops in recidivism rates at the same time their prison populations were declining. The policy changes that have led to these welcome results must be studied and emulated.  While our federal prison system has continued to slowly expand, significant state-level reductions have led to three consecutive years of decline in America’s overall prison population — including, in 2012, the largest drop ever experienced in a single year.

Clearly, these strategies can work.  They’ve attracted overwhelming, bipartisan support in “red states” as well as “blue states.” And it’s past time for others to take notice.

I am also announcing today that I have directed every U.S. Attorney to designate a Prevention and Reentry Coordinator in his or her district — to ensure that this work is, and will remain, a top priority throughout the country.  And my colleagues and I will keep working closely with state leaders, agency partners, including members of the Federal Interagency Reentry Council – and groups like the American Bar Association — to extend these efforts.

In recent years, with the Department’s support, the ABA has catalogued tens of thousands of statutes and regulations that impose unwise and counterproductive collateral consequences — with regard to housing or employment, for example — on people who have been convicted of crimes.  I have asked state attorneys general and a variety of federal leaders to review their own agencies’ regulations.  And today I can announce that I’ve directed all Department of Justice components, going forward, to consider whether any proposed regulation or guidance may impose unnecessary collateral consequences on those seeking to rejoin their communities.

The bottom line is that, while the aggressive enforcement of federal criminal statutes remains necessary, we cannot simply prosecute or incarcerate our way to becoming a safer nation. To be effective, federal efforts must also focus on prevention and reentry. We must never stop being tough on crime.  But we must also be smart and efficient when battling crime and the conditions and the individual choices that breed it.

Ultimately, this is about much more than fairness for those who are released from prison. It’s a matter of public safety and public good.  It makes plain economic sense. It’s about who we are as a people.  And it has the potential to positively impact the lives of every man, woman, and child — in every neighborhood and city — in the United States.  After all, whenever a recidivist crime is committed, innocent people are victimized.  Communities are less safe. Burdens on law enforcement are increased.  And already-strained resources are depleted even further.

Today — together — we must declare that we will no longer settle for such an unjust and unsustainable status quoTo do so would be to betray our history, our shared commitment to justice, and the founding principles of our nation. Instead, we must recommit ourselves — as a country — to tackling the most difficult questions, and the most costly problems, no matter how complex or intractable they may appear.  We must pledge — as legal professionals — to lend our talents, our training, and our diverse perspectives to advancing this critical work.  And we must resolve — as a people — to take a firm stand against violence; against victimization; against inequality — and for justice.

This is our chance — to bring America’s criminal justice system in line with our most sacred values. This is our opportunity — to define this time, our time, as one of progress and innovation. This is our promise —to forge a more just society.

And this is our solemn obligation, as stewards of the law, and servants of those whom it protects and empowers: to open a frank and constructive dialogue about the need to reform a broken system.  To fight for the sweeping, systemic changes we need. And to uphold our dearest values, as the ABA always has, by calling on our peers and colleagues not merely to serve their clients, or win their cases — but to ensure that —in every case, in every circumstance, and in every community — justice is done.

August 12, 2013 in Criminal justice in the Obama Administration, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (24) | TrackBack