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November 9, 2013

"Drug policy: Moral crusade or business problem?"

The title of this post is the headline of this notable recent Detroit News op-ed by law prof Mark Osler.  Here is how it gets started:

Slowly, Americans are beginning to realize what a mess our “War on Drugs” has been. We have spent billions of dollars and prosecuted millions of people, all to little real effect. Michigan has been front and center in this sad drama.

At the root of this failure is a simple error: We have treated narcotics as an issue of morality rather than business.  Our efforts have been focused on punishing relatively minor actors through mass incarceration rather than on the very different goal of shutting down drug businesses.  A starting point as we reconsider our efforts should be the simple recognition that narcotics trafficking is first and foremost a business.

That means that we need to put business experts in charge of the effort to close down narcotics businesses. This change might make all the difference.

A business expert, for example, would know enough to identify a proper measure of success or failure.  The only real way to know if narcotics interdiction is working isn’t how much cocaine is piled up in a bust, or how many people we lock up.  Rather, the best measure is an economic one: the price of narcotics on the street.  If we are successful at restricting supply, the price should go up (given a rough consistency of demand). Hiking the price is important.  We have learned from cigarettes that raising the price of something addictive reduces usage rates.  Still, governments continue to measure success by narcotics seized, arrests made, and sentences imposed rather than the street value of illegal drugs.

Similarly, no knowledgeable businessperson would use an analytical device like the system we have in place to rank-order the importance of narcotics defendants, where the weight of drugs those defendants possess is usually used as a proxy for culpability.  If you have a lot of drugs on you, you get a high sentence.  In reality, important figures in narcotics organizations don’t possess drugs at all — that is left to mules, street dealers, and low-level managers.  Given this false proxy, it shouldn’t be surprising that our prisons are stuffed full of mules, street dealers and low-level managers.  Who keeps the profit is a better gauge of responsibility and culpability.  That’s how a business works.

A businessperson would also realize the futility of sweeping up low-wage labor in an effort to close down a business. Or, for that matter, grabbing inventory periodically (which we do via drug seizures) or occasionally seizing profits (which we do when we forfeit drug dealer’s homes or cars).  In real life, the way to shut down a business is to curtail cash flow, because without that there can be no labor hired, no inventory produced, and no profit generated.  Conversely, so long as cash flow exists (or credit, which drug dealers generally can’t obtain), labor, inventory, and profit can be replaced.  Yet, the one thing we do not focus on is cash flow, which we could capture through forfeitures.  We keep the money, the business fails, and drug dealers are out of work rather than in prison.

November 9, 2013 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

You be the federal judge: should everyone claiming to be a Whitey Bulger victim get to speak at sentencing?

The question in the title of this post is prompted by this new USA Today article discussing arguably the only legal uncertainty preceding this week's coming high-profile federal sentencing. Here is the background:

When a jury in August found Boston mob boss James "Whitey" Bulger guilty in 11 murders and 31 racketeering counts, the verdict left eight families hungering for more justice. Their loved ones' deaths, the jury found, couldn't be linked to Bulger.  Now, with Bulger's sentencing hearing coming up Nov. 13 at federal court in Boston, these frustrated survivors might get the last word. Prosecutors hope at least some of them will get to tell the court how Bulger victimized them.

That prospect, however, has at least one juror crying foul, defense attorneys pushing back and legal experts warning that such an uncommon procedure could backfire by strengthening Bulger's grounds for appeal.

Judge Denise Casper is considering a prosecution request to permit "all victims" to give impact statements at the upcoming hearing. It is "beyond dispute that the criminal enterprise was responsible for the murder of all the victims specified in the indictment," says an Oct. 11 prosecution filing with the court. "Thus … family members of the murder victims clearly have a right to be heard at Bulger's sentencing."

Bulger's attorneys have fired back, urging the court to "reject the United States Attorney's Office's invitation to disrupt the findings of the jury." Meanwhile, Bulger trial juror Janet Uhlar has asked the U.S. Senate Judiciary Committee to investigate what she calls "a threat to U.S. jurisprudence."

"The verdict we carefully, dutifully, and painfully deliberated is being mocked by the US Attorney's Office," Uhlar said in an email to USA Today. If all are permitted to speak despite the jury's findings, she said, "U.S. jurisprudence will be dealt a fatal blow."

Legal experts say Casper has discretion to permit a narrow or wide range of impact statements. They add that no matter who's permitted to speak, 84-year-old Bulger is all but certain to spend the remainder of his days in prison. Prosecutors are asking for two consecutive life sentences, plus five years, in accordance with sentencing guidelines.

To allow victim impact statements from those not linked to the defendant's crimes would be extremely rare, according to Michael Coyne, associate dean of Massachusetts School of Law in Andover, Mass. He's never seen a case where it's been permitted, he said, adding that it would potentially cast aspersions on the sentence. "The appeals court could end up sending it back to her for having made a mistake," Coyne said, if the higher court finds the sentencing hearing was improperly managed.

But Casper might be weighing competing factors, according to David Frank, editor of Massachusetts Lawyers Weekly, a newspaper that covers legal affairs in the commonwealth. Among the possible concerns: Be sure no one who might count as a Bulger victim in this super-complex racketeering case is denied an opportunity to speak. "By law, victims of crime have an absolute right to address the court before sentencing," Frank said. "The judge has a difficult decision to make" as she considers, in light of conspiracy and other racketeering findings, how to define who is and who isn't a Bulger victim.

If the prosecution prevails, the government's image might get a boost among those who were hurt, especially during the 1970s and 80s by Bulger's Winter Hill Gang, Coyne says. Such victims have long resented how the government did little to bring the gangsters to justice, instead taking bribes and agreeing to generous deals with Bulger associates.

Yet the price paid for such an open forum could include an impression that the court is being used for more than justice. "It would reduce the sentencing hearing, to large extent, to a circus," said Robert Bloom, a criminal procedure expert at Boston College Law School. "It has absolutely no meaning other than some sort of cathartic relief for some of the victims."

Candidly, I find both foolish and fantastical the comments asserting there could be big legal problems resulting from the victims of "acquitted conduct" getting a chance to speak at Bulger's sentencing.  As informed folks should know, under established Supreme Court doctrine (US v. Watts) acquitted conduct can be (and still regularly does get) used by federal judges to significantly increase a defendant's sentence on other counts.  Though I view U.S. jurisprudence allowing such sentence increases to be misguided, I do not see how our justice system will be "dealt a fatal blow" from simply letting "acquitted conduct" victims speak at sentencing.  And, given that Bulger is facing mandatory life terms, even if it were somehow a procedural error to let these "victims" speak at sentencing, I am certain that the First Circuit would consider any such error harmless.

Some recent related posts:

November 9, 2013 in Celebrity sentencings, Procedure and Proof at Sentencing, Victims' Rights At Sentencing | Permalink | Comments (1) | TrackBack

November 8, 2013

"Informal Collateral Consequences"

The title of this post is the title of this notable new piece available via SSRN by Wayne Logan. Here is the abstract:

This essay fills an important gap in the national discussion now taking place with regard to collateral consequences, the broad array of non-penal disabilities attaching to criminal convictions. In the wake of the Supreme Court’s landmark 2010 decision in Padilla v. Kentucky, efforts are now underway to inventory collateral consequences imposed by state, local, and federal law.  Only when the full gamut of such consequences is known, law reformers urge, can criminal defendants understand the actual impact of their decision to plead guilty.

The increased concern over collateral consequences, while surely welcome and important, has however been lacking in a key respect: it has ignored the many adverse social, medical and economic consequences of conviction, experienced by individuals independent of formal operation of law.  This essay augments the consciousness-raising effort now under way and makes the case that informal, and not just formal collateral consequences of conviction, should figure in post-Padilla policy efforts to achieve a fairer and more transparent criminal justice system.

November 8, 2013 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing | Permalink | Comments (8) | TrackBack

November 7, 2013

State judge in Pennsylvania finds lifetime sex offender registration for juve offenders unconstitutional

As reported in this local article, "a York County judge has ruled unconstitutional a two-year-old Pennsylvania law that imposes lifetime registration requirements on juvenile sex offenders."  Here is more:

Senior Judge John C. Uhler issued his ruling against the juvenile registration provisions of the Sexual Offender Registration and Notification Act while weighing the cases of seven county teens adjudicated as having committed serious sex crimes.

Uhler found that the registration mandate "unconstitutionally forecloses a court's considerations of the many unique attributes of youth and juvenile offenders" under age 18 and improperly treats them the same as adult sex offenders. SORNA, as the act is known, also doesn't take into account the greater capacity juvenile offenders have to reform, he noted.

The state law was passed by the Legislature in late 2011 to comply with a federal law, the Adam Walsh Act. The state faced a loss of federal funding if it didn't adopt a measure compatible with the Walsh Act.

Uhler's ruling is in reply to a challenge mounted on behalf of the seven York County youths by the county public defender's office, the Juvenile Law Center and the Defender Association of Philadelphia. The children involved were subject to registration after being found to have committed crimes including rape, involuntary deviate sexual intercourse and aggravated indecent assault. They were ages 14 to 17 when the offenses occurred.

In a statement issued Thursday, officials of the Juvenile Law Center and the defender association called Uhler's decision a "landmark ruling."

"It is our hope that this decision will result in similar findings across the commonwealth," said Riya Saha Shah, a staff attorney with the law center. "To impose this (registration) punishment on children is to set them up for failure."

County Chief Deputy Prosecutor Tim Barker said his office is reviewing Uhler's decision for a possible appeal to the state Supreme Court. A decision is expected next week, he said. "We're thoroughly going through everything," Barker said.

Cumberland County District Attorney David Freed, president of the Pennsylvania District Attorney's Association, predicted an appeal is likely. Prosecutors are well aware of arguments for and against the juvenile sex offender registration requirement, he said. "I'm not surprised that the judge would rule this way," Freed said. "We'll see what happens in the appeals courts."

The full 40+ page ruling reference here is available at this link, which I found via this helpful page from the helpful folks at the Juvenile Law Center.

November 7, 2013 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (8) | TrackBack

Federal prosecutors say Whitey Bulger "richly deserves" his coming LWOP sentence

This Boston Globe article reports on the latest sentencing filing in a very high-profile federal prosecution under the headline "Whitey Bulger has no redeeming qualities and should be sentenced to life, prosecutors say." Here is how the article begins:

Federal prosecutors said today that notorious gangster James “Whitey”Bulger “has no redeeming qualities” and should be sentenced next week to life in prison for killing 11 people while running a sprawling criminal enterprise.

“There are no mitigating factors, and defendant Bulger has no redeeming qualities, which would justify any sentence below the one called for by the US Sentencing Guidelines and the applicable case law and statutes,” prosecutors wrote in a sentencing memorandum filed in federal court in Boston.

US District Court Judge Denise J. Casper will hear from the families of Bulger’s victims, defense lawyers, and prosecutors on Nov. 13 and sentence the gangster the following day. Bulger, 84, who did not take the stand during his eight-week trial last summer, will be offered an opportunity to speak before he is sentenced.

The government's six-page sentencing memorandum can be found at this link, and here is how it starts:

James “Whitey” Bulger is one of the most violent and despicable criminals in Boston history. Having now been convicted of thirty-one felonies, including RICO counts involving multiple murders, Bulger richly deserves to spend the rest of his life in jail.

November 7, 2013 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (3) | TrackBack

Is it "misleading to compare marijuana to beer"?

Beer potThe question in the title of this post is drawn from a quote by someone from the Beer Institute appearing in this notable new National Journal item headlined "Alcohol Is Really Pissed Off at Marijuana Right Now; The marijuana industry is convincing Americans its substance is safer than alcohol, and booze lobbyists don't like it." Here are excerpts from the new National Journal piece:

Marijuana has been giving alcohol a bad name. So contend booze lobbyists, who are getting sick of an ad campaign that makes the claim that pot is safer than their beloved beverages.

"We're not against legalization of marijuana, we just don't want to be vilified in the process," said one alcohol industry representative who didn't want to be quoted harshing his colleagues mellow. "We don't want alcohol to be thrown under the bus, and we're going to fight to defend our industry when we are demonized."

The marijuana industry has had a good couple of years: a recent poll found that 58 percent of the country thinks the product should be legal, recreational use has been legalized in two states already, and this past election saw the city of Portland, Maine, legalize 2.5 ounces of pot. Ahead of the vote in Portland — which received 70 percent support — the Marijuana Policy Project put up signs around the city with messages like "I prefer marijuana over alcohol because it doesn't make me rowdy or reckless," and "I prefer marijuana over alcohol because it's less harmful to my body."

Alcohol lobbyists believe it's a "red herring" to compare the two. "We believe it's misleading to compare marijuana to beer," said Chris Thorne of the Beer Institute. "Beer is distinctly different both as a product and an industry."

Thorne notes that the alcohol industry is regulated, studied extensively, and perhaps more importantly already an accepted part of the culture. "Factually speaking beer has been a welcome part of American life for a long time," he said. "The vast majority drink responsibly, so having caricatures won't really influence people."

But MPP takes issue with the idea they are painting a false picture. In a recent Op-Ed for CNN, Dan Riffle, the group's director of federal policies, notes that according to the Centers for Disease Control excessive alcohol use is the third leading lifestyle-related cause of death. Booze also "plays a role in a third of all emergency room visits," he says....

"That's like saying we shouldn't talk about relative harms of sushi to fried chicken," said Mason Tvert, who in addition to working at MPP wrote a book called Marijuana is Safer: So Why are We Driving People to Drink? "It's important that people know the relative harms of all substances, so there's no reason not to talk about the two most popular substances in the world." 

Cross-posted at Marijuana Law, Policy and Reform

November 7, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (4) | TrackBack

"Free at Last? Judicial Discretion and Racial Disparities in Federal Sentencing"

The title of this post is the title of this notable new paper by Crystal Yang now available via SSRN. Here is the abstract:

The Federal Sentencing Guidelines were created to reduce unwarranted sentencing disparities among similar defendants.  This paper explores the impact of increased judicial discretion on racial disparities in sentencing after the Guidelines were struck down in United States v. Booker (2005).  Using data on the universe of federal defendants, I find that black defendants are sentenced to almost two months more in prison compared to their white counterparts after Booker, a 4% increase in average sentence length.  To identify the sources of racial disparities, I construct a dataset linking judges to over 400,000 defendants.  Exploiting the random assignment of cases to judges, I find that racial disparities are greater among judges appointed after Booker, suggesting acculturation to the Guidelines by judges with experience sentencing under mandatory regime. Prosecutors also respond to increased judicial discretion by charging black defendants with longer mandatory minimums.

I am always interested in sophisticated analyses of the post-Booker sentencing system, so I am looking forward to finding time to review this article closely. But, as with lots of "disparity" sentencing scholarship, I worry that this article is among those spending lots of time worrying about and trying to figure out whose sentences may be longer after Booker rather than worrying about and trying to figure out if all sentence remain way too long in the federal sentencing system.

November 7, 2013 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

New Michigan law adds to number of states requiring registered sex offenders to pay yearly fee

This local article report on yet another notable extra bit of punishment now for sex offenders in Michigan.  The piece is headlined "Sex Offenders Will Have To Pay To Live In Michigan Under Bill Signed By Gov. Snyder," and here are the details:

Gov. Rick Snyder has signed legislation requiring registered sex offenders living in Michigan to pay an annual $50 fee. The bill, sponsored by Republican Sen. Rick Jones, replaces the system under which sex offenders paid a one-time $50 fee. Snyder signed the bill into law on Tuesday.

The measure only applies to registered sex offenders who are out of prison. Officials say $20 of each fee would go to local law enforcement and $30 would go to the state. If offenders don’t pay the annual fee, they face misdemeanor charges.

Offenders who can’t afford the fee would have the chance to make their case and receive a 90-day waiver. To do that, offenders would either have to prove in court that they are indigent, are receiving food assistance from the state, or are living under the federal poverty level.

Snyder said the law brings Michigan in line with neighboring states that require sex offenders to pay for the operating cost of sex offender websites. He said Indiana charges $50 per year, while Illinois and Ohio charge offenders $100 per year. The state said the move could bring in about $540,000 more in revenue each year.

But not everybody is on board with the new law. Opponents, which include the American Civil Liberties Union, say it’s merely a feel-good measure that ignores experiences in other states where the promise of more revenue falls well short of expectations and is an overly burdensome cost for registered sex offenders who already struggle to find housing and jobs.

“They have paid their dues … this is a burden that we just keep piling on,” said Shelli Weisberg, legislative liaison for ACLU of Michigan. She argues that the state is not asking offenders to pay for something that benefits them, but something that is intended to protect citizens. Therefore, the state should pay for it.

November 7, 2013 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (80) | TrackBack

November 6, 2013

Unanimous Supreme Court of New Hampshire upholds state's first modern capital conviction (with proportionality review to follow)

As reported in this AP piece, "New Hampshire's top court upheld the sentence of the state's only death row inmate, clearing the way for a convicted cop killer to become the first person executed in New Hampshire since 1939."   Here are more of the basics:

Michael Addison, 33, was convicted of gunning down Michael Briggs in 2006 as the 35-year-old Manchester police officer was attempting to arrest him on a string of armed robbery charges. The high court's unanimous ruling came nearly a year after it heard unprecedented daylong arguments in the first death penalty appeal to come before it in 50 years....

Of all 22 issues raised by Addison's lawyers on appeal, the justices concluded, "We find no reversible error."

The Supreme Court will next schedule arguments on its fairness review — weighing Addison's sentence against those meted out in 49 cases around the country between 2000 and 2009 in which a police officer was shot in the line of duty.

Addison's lawyers objected to the scope of the comparison, saying it ignores the only other New Hampshire capital case in recent history. That case involved a wealthy white man — John Brooks — who plotted and paid for the killing of a handyman he thought had stolen from him. Brooks was spared a death sentence in 2008 — the same year Addison was sentenced to die....

Attorney General Joseph Foster said the magnitude of the court's 243-page ruling is appropriate given the magnitude of the loss suffered by the Briggs' family. He did not comment on the ruling itself, noting that aspects of the case remain pending.

Briggs was 15 minutes from the end of his shift on Oct. 16, 2006, when he and his partner — both on bicycle patrol — confronted Addison in a dark alley. Jurors found that Addison shot Briggs in the head at close range to avoid arrest. Addison was later convicted of going on a violent rampage in the days before Briggs' death, including two armed robberies and a drive-by shooting....

The last person executed in New Hampshire was Howard Long, an Alton shopkeeper who molested and beat a 10-year-old boy to death. He was hanged — still a viable form of execution in New Hampshire if lethal injection is not possible.

As the AP piece revelas, the massive ruling in NH v. Addison (available here) does not conclusively affirm the defendant's death sentence.  Here is why, as the NH Supreme Court explains in the introduction to its lengthy opinion:

With respect to the issues raised by the defendant on appeal, we find no reversible error. Accordingly, we affirm the defendant’s conviction for capital murder. Furthermore, we conclude that the sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factor, and that the evidence was sufficient to support the jury’s findings of aggravating circumstances.  We note that our review of the defendant’s sentence is not yet complete.  Only after additional briefing and oral argument on comparative proportionality under RSA 630:5, XI(c) will we conclude our review of the defendant’s sentence of death, at which time we will issue a further opinion.

November 6, 2013 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

Senate Judiciary hearing focused on federal prisons and "Cost-Effective Strategies for Reducing Recidivism"

This motning, Tuesday November 6, 2013 at 10am, as detailed at this official webpage, there will be Hearing before the United States Senate Committee on the Judiciary titled "Oversight of the Bureau of Prisons & Cost-Effective Strategies for Reducing Recidivism." Here is the official agenda/hearing list:

Panel I

Panel II

I am expecting and hoping that there will be written testimony from some or all of these witnesses posted via the Senate website within the few hours.

Here at The Atlantic, Andrew Cohen sets out "5 Questions for Federal Prisons Chief When He Comes to Capitol Hill"

November 6, 2013 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (24) | TrackBack

Election outcomes in Nov 2013 keep up marijuana reform momentum

Though it would be unwise jump to too many conclusions based on off-year election results, these headlines reporting on results concerning various marijuana initiative in various jurisdictions suggest a continuing affinity for responsible reform and sensible regulation of maijuana laws, policies and practices:

Practically speaking, the Colorado vote is probably the most important and consequential, as it ensures a significant tax revenue stream now flowing from marijuana legalization in the Mile High state.  But politically speaking, the voting outcomes in Maine and Michigan, though most symbolic, could still prove important if (and when?) more politicians on both side of the aisle in the northeast and upper midwest see that there could be political upsides in 2014 and beyond from supporting responsible reform and sensible regulation of maijuana laws, policies and practices.

Cross-posted at Marijuana Law, Policy and Reform.

November 6, 2013 in Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1) | TrackBack

November 5, 2013

"Looking for Answers on Overcrowded Prisons"

The title of this post is the headline of this notable new AP article coming from Philadelphia.  The piece is primarily about federal corrections and re-entry issues, as well as on-going work of AG Eric Holder and the Department of Justice.  Here are excerpts:

Some ex-offenders here report to federal court twice a month so that judges can gauge their progress, from drug testing and parenting classes to education and job training. It's an attempt to address a stubborn problem: nearly 25 percent of offenders released into federal supervision were rearrested for a new offense within five years, according to the Administrative Office of the U.S. Courts.  Another 14 percent violate the conditions of their supervision.

Attorney General Eric Holder is taking a look at the Philadelphia program Tuesday to call attention to an overburdened prison system and the high incidence of repeat criminals, the first of three such visits to promote innovative crime prevention initiatives. Holder will visit St. Louis and Peoria, Ill., on Nov. 14.

"The common thread of these programs is that it is very difficult to get out of a cycle of crime without proper rehabilitation," Holder said in an interview.  "We should not be surprised" at high repeat offender rates "when we see people with education deficits, social deficits and we warehouse them and then just put them back into the same environment that they left."...

Seven years ago, federal judges in the Eastern District of Pennsylvania created a federal re-entry court that focuses on ex-criminal offenders with a significant risk of returning to a life of crime.  The goal of the program is to place participants on a path to employment rather than a cycle of crime.  Those who successfully complete the 52-week program can reduce their court-supervised release by a year. It aims to cut Philadelphia's high violent crime rate by addressing the social, family and logistical issues confronting ex-offenders when they return to society.

Of 186 participants in the Supervision to Aid Re-Entry, or STAR, initiative over the past seven years, 142 have successfully completed the program or remain in it. In a new change designed to keep ex-offenders on the right track, STAR will provide some participants with federal housing assistance under a federal voucher program.

"For every dollar we invest in programs like these we are going to save much more" in prison costs, an outcome that will enable spending limited law-enforcement resources on other priorities, Holder said.

While Philadelphia's program deals with high-risk offenders, the program in St. Louis is aimed at helping low-level drug offenders remain drug-free and the effort in Peoria, Ill., substitutes drug treatment for jail time for low-level drug offenders.

In all, 73 of 79 participants in the Peoria program have successfully completed it. The program operated by the U.S. Attorney's office, a federal court, the probation office and defense lawyers is designed for defendants whose criminal conduct was motivated by substance abuse. The Justice Department says over $6 million has been saved through the program — money that otherwise would have been spent on putting the defendants behind bars....

Federal prisons are operating at nearly 40 percent above capacity and almost half of the prisoners are serving time for drug-related crimes. Many of them have substance use disorders. In addition, some 9 million to 10 million prisoners go through local jails each year. "We cannot simply prosecute or incarcerate our way to becoming a safer nation," Holder told the American Bar Association in August. "To be effective, federal efforts must also focus on prevention and re-entry."

November 5, 2013 in Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3) | TrackBack

SCOTUS unanimously reverses Sixth Circuit on Sixth Amendment habeas case in Burt v. Titlow

The Supreme Court wasted no time wasting a Sixth Circuit ruling that ruling in favor of a state habeas petitioner, issuing today a reversal in Burt v. Titlow, No. 12-414  (S. Ct. Nov. 5, 2013) (available here).  Here is how the opinion for the Court by Justice Alito gets started:

When a state prisoner asks a federal court to set aside a sentence due to ineffective assistance of counsel during plea bargaining, our cases require that the federal court use a “‘doubly deferential’” standard of review that gives both the state court and the defense attorney the benefit of the doubt.  Cullen v. Pinholster, 563 U. S. ___, ___ (2011) (slip op., at 17).  In this case, the Sixth Circuit failed to apply that doubly deferential standard by refusing to credit a state court’s reasonable factual finding and by assuming that counsel was ineffective where the record was silent.  Because the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), 110 Stat. 1214, and Strickland v. Washington, 466 U. S. 668 (1984), do not permit federal judges to so casually second-guess the decisions of their state-court colleagues or defense attor­neys, the Sixth Circuit’s decision must be reversed.

Both Justice Ginsburg and Justice Sotomayor have written short opinions in Burt v. Titlow in order to articulate their views of what the Court's opinion does not mean.

Based on a very quick review, it seems this ruling should be viewed more as a bit of habeas review error-correction rather than a significant new precedent about the Sixth Amendment's reach or application. But all habeas practitioners ought to give this a very close read to see if there might be more "there there" than immediately meets the eye.

November 5, 2013 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11) | TrackBack

New Urban Institute report recommends policies to reduce federal prison growth

As detailed via this webpage, The Urban Institute has today released this notable new report titled "Stemming the Tide: Strategies to Reduce the Growth and Cut the Cost of the Federal Prison System." Here is how the webpage summarizes the report's content and coverage:

The federal prison population has risen dramatically over the past few decades, as more people are sentenced to prison and for longer terms.  The result?  Dangerously overcrowded facilities and an increasing expense to taxpayers.  In a new Urban Institute report, the authors project the population and cost savings impact of a variety of strategies designed to reduce the inmate population without compromising public safety.  They find that the most effective approach is a combination of strategies, including early release for current prisoners and reducing the length of stay for future offenders, particularly those convicted of drug trafficking.

Here is the conclusion of this report's executive summary, which provides some details about its specific recommended reforms:

[T]o yield a meaningful impact on population and costs, a mix of reforms to sentencing, prosecution, and early release policies are required.  The most effective way to reduce overcrowding is to lower mandatory minimums for drugs, which, alone, would reduce overcrowding to the lowest it has been in decades.  Add two more options — retroactively applying the Fair Sentencing Act to crack offenders already in BOP custody and providing a broader earned time credit for program participation — and the BOP could save $3 billion. Updating the formula for good time credits and providing early release for certain nonviolent older inmates would lead to an additional 5,000 immediate releases, while lowering the truth-in-sentencing requirement for new BOP admissions who exhibit exemplary behavior while in custody would further reduce the future prison population. Even with a mix of reforms, federal prisons may continue to be overcrowded.  But a smart combination of policies will save taxpayers billions, make prisons less dangerous, and improve the quality and reach of programs designed to keep inmates from offending again.

November 5, 2013 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0) | TrackBack

When and how will SCOTUS take up Miller retroactivity issues?

The question in the title of this post is promoted by this local piece reporting on reactions to the Pennsylvania Supreme Court's decision last week (reported here) that its state teens given mandatory LWOP before the US Supreme Court's Miller ruling should not get any retroactive benefit from that decision.   Here is an excerpt:

Nicholas White was 17 when a judge sentenced him to life in prison without parole for killing his father, Robert Grant White, 43, in 1998 in their home along Route 356.

Last year, the Supreme Court declared such sentences unconstitutional, saying they amount to cruel and unusual punishment. But the Pennsylvania Supreme Court last week ruled, 4-3, that the opinion does not apply retroactively to cases such as White's that were final before June 2012.

The decision means White and more than 450 Pennsylvania inmates, including as many as 40 from Allegheny County, are not eligible for resentencing. “I can't believe that it's fair — that if your sentence came down one day, you get nothing, and if it came down the next day, you get a new hearing,” said Marc Bookman, director of the Atlantic Center for Capital Representation in Philadelphia.

“But there is a silver lining here, and that is that the Pennsylvania Supreme Court does have another round of review, and that is with the U.S. Supreme Court,” said Turtle Creek attorney David Chontos. He represents Jeremy Melvin, 26, of McKeesport, who was 16 in 2005 when a Mercer County judge sentenced him to life without parole for killing a counselor at George Junior Republic, a private residential juvenile treatment center.

Several legal experts said the case likely is bound for the Supreme Court, because Iowa, Mississippi and Illinois deemed the high court's ruling retroactive, although Pennsylvania, Minnesota, Michigan and Florida have said it is not.

There seems little reason to doubt SCOTUS will be taking up this issue before too long. But when and how is a real interesting question, not only because the facts of the case taken up by the Justices could influence the public and legal discourse, but also because arguments about Miller retroactivity could (and I think should) prompt some reconsideration and modification of Teague habeas review jurisprudence.

November 5, 2013 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2) | TrackBack

November 4, 2013

Sentencing judge explains his view on how nationwide reforms should impact federal marijuana sentencing

I noted in prior recent posts here and here, U.S. District Judge James Bredar last month conducted a hearing to explore marijuana legal reforms and developments at the state and federal level now called for imposing below-guideline sentences for federal marijuana offenses.  This past Friday, Judge Bredar handed down a 12-page opinion in US v. Dayi, No. JKB-13-0013 (D. Md. Nov. 1, 2013) (available here), explaining his views and thinking on this front.  Here is an excerpt from the final sections of the fascinating (and perhaps very important?) Dayi opinion:

The evolving landscape of state law and federal enforcement policy regarding marijuana is particularly relevant to two of these [statutory sentencing] factors, namely (1) the need for any sentence imposed “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense,” § 3553(a)(2)(A), and (2) the “need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct,” § 3553(a)(6).....

The Court’s role is not to question, criticize, or laud the Justice Department’s new enforcement priorities or the recent enactments of state voters and legislators.  These policy choices reflect an on-going effort to address a complex, difficult, and highly controversial issue.  Rather, the Court’s role is simply to take note of these developments and consider them as part ofits assessment of the seriousness of these offenses. Ultimately, the Court finds that, in 2013, strict Guidelines sentences would overstate the seriousness of the underlying offenses and therefore fail “to reflect the seriousness of the offense, to promote respect for the law, and to provide just punishment for the offense.” § 3553(a)(2)(A)....

The Court also finds that Guidelines sentences in these cases would fail to address the “need to avoid unwarranted sentence disparities among defendant s with similar records who have been found guilty of similar conduct.” § 3553(a)(6). The Court construes this factor broadly, interpreting it as a command to ensure that sentences comport with the notion of equal justice under the law.  The Justice Department has decided it will not prosecute certain marijuana traffickers, including large-scale commercial distributors who, in compliance with state laws and regulations, establish retail outlets that cater to recreational marijuana users in Colorado and Washington.  Although the illegal enterprise in these cases is not identical to these commercial distributors — i.e., it did not comply with the laws or regulations of any state and implicated several federal enforcement priorities — it nonetheless bears some similarity to those marijuana distribution operations in Colorado and Washington that will not be subject to federal prosecution. The Court therefore finds it should use its sentencing discretion to dampen the disparate effects of prosecutorial priorities.  As a result, the Court finds this factor too justifies a downward variance from the sentence the Guidelines would otherwise recommend....

Of course, these two factors are not the only ones the Court must consider under § 3553(a). Others, particularly “the nature and circumstances of the offense,” § 3553(a)(1), and“the need for the sentence imposed to afford adequate deterrence to criminal conduct” § 3553(2)(B), militate more strongly in favor of a Guidelines sentence. Indeed, the conspiracy at issue in these cases was a large, elaborate, and profitable illegal operation involving well in excess of 1,000 kilograms of marijuana.  The Court therefore believes that a two-level variance from the Guidelines, which would reduce each defendant’s sentence by roughly 20 to 25%, is appropriate.  Such a variance reflects national trends in the enforcement of marijuana-related offenses, while recognizing the undeniable illegality of defendants’ conduct.  As it determines the sentence of each defendant in these cases, the Court will adopt this analysis, and accordingly it will grant each defendant the benefit of a two-level downward variance.

Recent related posts:

Cross-posted at Marijuana Law, Policy and Reform.

November 4, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

"Use of tough federal sentencing laws varies widely nationwide"

The title of this post is the headline of this notable new Los Angeles Times article, which carries this subheading: "Some U.S. attorneys have begun to ease up on policies that have led to lengthy sentences for low-level drug criminals. But change has been slow for others." Here are excerpts from the piece:

Under mandatory sentencing laws, it has become a not-so-hidden fact of life in federal courthouses that prosecutors — not judges — effectively decide how long many drug criminals will spend behind bars. The result has been federal prisons packed with drug offenders.

But Atty. Gen. Eric H. Holder Jr. is now trying to steer the Justice Department away from the get-tough policies that have led to lengthy sentences for what one judge called the "low-hanging fruit" in the drug war — dime-a-dozen addicts and street dealers.

Prosecutors have considerable discretion under the laws. If they cite the amount of drugs seized in the charging document, that can trigger the mandatory minimum; if they leave it out, it doesn't. For offenders with prior drug convictions, prosecutors can file a so-called 851 motion, named after a section in the federal code that automatically doubles a sentence — or makes it mandatory life.

Although the mandatory laws were supposed to lead to uniformity, statistics show huge variations across the country in how often prosecutors use them. Holder has instructed prosecutors to avoid using these powerful weapons against lower-level, nonviolent offenders, but, even so, they retain the authority to decide which small players get a break and which get slammed....

In the two months since Holder issued his new policy, some U.S. attorneys ... have begun to pull back, according to judges and attorneys. "We had some terribly harsh sentences," said Randy Murrell, federal public defender in the northern district of Florida. "It's gone on for years, and no one had the courage and gumption to change it. I do think they are changing the policy now."

But elsewhere, change has been slower in coming. "We are hopeful that this will loosen up some of the policies, but we have certainly not seen it yet," said Jonathan Hawley, the federal public defender in central Illinois, another district with a history of tough prosecutions.

A study by the U.S. Sentencing Commission found that more than 47% of all drug defendants in Iowa's southern federal court district ended up with mandatory minimum sentences in 2010 — the third-highest rate in the country. In the northern district, it was more than 40%, the sixth-highest rate. There's even greater inconsistency in the use of 851 motions. In Iowa, they landed on about 80% of eligible offenders, according to sentencing commission data. In bordering Nebraska, the figure was 3%.

In a recent opinion, [Judge Mark] Bennett criticized the Justice Department for the "jaw-dropping, shocking disparity" in how prosecutors wielded the motions. He called the process "both whimsical and arbitrary, like a Wheel of Misfortune."

Some say prosecutors will be reluctant to give up a powerful tool to break open cases — the ability to threaten recalcitrant witnesses with a long federal sentence if they don't play ball....

One federal judge in Brooklyn, N.Y., said Holder's policy didn't go far enough to rein in prosecutors who routinely wielded 851 sentence enhancements as a "2-by-4 to the forehead" to force defendants to accept plea deals. If the Justice Department "cannot exercise its power … less destructively and less brutally, it doesn't deserve to have the power at all," wrote District Judge John Gleeson, a former prosecutor, in a sentencing opinion last month.

A few prior related posts:

November 4, 2013 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (21) | TrackBack

November 3, 2013

Should we worry early parole might cut 750 years off sex offender's prison term?

The question in the title of this post is my tongue-in-check response to this local West Virginia sentencing story sent my way by a helpful reader. The piece is headlined "County man sentenced to 250 -- 1,000 years," and here are the details:

A Marion County man was sentenced to 250 -- 1,000 years in prison Friday for 10 counts of sexual abuse and 10 counts of sexual assault, all involving a minor.  Matthew Monroe Cottingham, 28, of Fairmont, was sentenced by Marion Circuit Judge David R. Janes.

Cottingham was sentenced to 25 to 100 years for each of 10 counts of sexual assault on a minor and 10 to 25 years for each of 10 counts of sexual assault by a parent, guardian or custodian. He will serve the sentences for sexual assault consecutively and the sentences for sexual abuse concurrently, said Marion County Prosecuting Attorney Patrick Wilson....

“The sentences of 25-100 years are indeterminate,” Wilson said. “He would have to do 25 years on each count before he’d be eligible for parole.”

Cottingham had been first arrested in late July 2012 by Fairmont police. According to criminal complaints, he forcibly had sexual relations with a 13-year-old girl. The girl allegedly told her mother the next day, and statements by the victim and physical evidence observed at Fairmont General Hospital were reportedly consistent with the allegations....

Child Protective Services continued to investigate the incident since the initial arrest.  A second child, a 9-year-old girl, alleged that Cottingham had perpetrated “several sexual assaults ... dating back years prior to his arrest to CPS officials.”

November 3, 2013 in Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (10) | TrackBack