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January 4, 2014

Will bipartisan momentum get Congress to enact some real and really consequential sentencing reform?

The question in the title of this post is prompted by this lengthy new AP piece, headlined "Momentum behind sentencing changes grows as supporters in Congress seek changes this year."  Here are excerpts:

An unusual alliance of tea party enthusiasts and liberal leaders in Congress is pursuing major changes in the country's mandatory sentencing laws. What's motivating them are growing concerns about both the fairness of the sentences and the expense of running federal prisons.

The congressional push comes as President Barack Obama and his Cabinet draw attention to the issue of mandatory sentences, particularly for nonviolent drug offenders. Supporters say mandatory minimum sentences are outdated, lump all offenders into one category and rob judges of the ability to use their own discretion. They also cite the high costs of the policies. The Justice Department spends some $6.4 billion, about one-quarter of its budget, on prisons each year, and that number is growing steadily....

Tough-on-crime drug policies once united Republicans and Democrats who didn't want to appear weak on crime. Now reversing or revising many of those policies is having the same effect.

The Fair Sentencing Act, passed in 2010, drew bipartisan support for cutting penalties on crack cocaine offenses. The bill reduced a disparity between crack-related sentences and sentences for other drugs, though it only addressed new cases, not old ones.  [Senator Dick] Durbin, one of that bill's chief sponsors, has written a much broader bill with [Senator Mike] Lee, called the Smarter Sentencing Act. It would expand a provision that gives judges discretion for a limited number of nonviolent drug offenders. The new law would allow judges the same latitude for a larger group of drug offenders facing mandatory sentences.

It's one of four bills dealing with sentencing that the Senate Judiciary Committee is expected to take up early in the year. The committee chairman, Sen. Patrick Leahy, D-Vt., said he wants one consensus bill to clear the committee.

Leahy is a co-sponsor on the Durbin-Lee bill but has also introduced legislation with Sen. Rand Paul, R-Ky., that would expand the safety valve even more, to all federal cases with mandatory sentences if certain conditions are met.

Sen. John Cornyn, R-Texas, introduced legislation late in December that is based on changes in Texas' state prison system.  A separate bill, sponsored by Sen. Sheldon Whitehouse, D-R.I., and Sen. Rob Portman, R-Ohio, allows inmates to earn credit for completing programs designed to reduce recidivism.

Leahy's committee delayed writing a sentencing bill several times in 2013.  But supporters noted that the last sentencing legislation took months to negotiate and said that the committee has delayed work until early 2014 in large part because behind-the-scenes talks are proving fruitful.  Durbin said he and Lee had been lobbying their fellow committee members — Durbin talking to skeptical Democrats, Lee to Republicans.  In the House, Rep. Raul Labrador, R-Idaho, a tea party conservative, and Rep. Bobby Scott, D-Va., are co-sponsors of a companion to Durbin and Lee's bill.

A number of outside groups have expressed support for the Durbin-Lee bill, too, and they run the ideological spectrum, including the conservative Heritage Action, the American Bar Association, the NAACP and the American Civil Liberties Union. 

January 4, 2014 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1) | TrackBack

"Juvenile Lifers and Judicial Overreach: A Curmudgeonly Meditation on Miller v. Alabama"

The title of this post is the title of this notable new paper now available on SSRN and authored by Frank O. Bowman III.  Here is the abstract:

This Article considers with a skeptical eye the Supreme Court’s decision in Miller v. Alabama, 132 S. Ct. 2455 (2012), finding unconstitutional under the Eighth Amendment’s Cruel and Unusual Punishments Clause all laws subjecting murderers who killed before their eighteenth birthdays to a sentence of mandatory life without parole (“LWOP”).

Miller and Graham v. Florida, 130 S. Ct. 2011 (2010), in which the Court voided statutes imposing life without parole on juveniles who committed non-homicide crimes, are striking for several reasons. First, they impact juvenile justice because the Court has continued down the path it took in Roper v. Simmons, 543 U.S. 551 (2005), when it ruled the death penalty cruel and unusual for juveniles, regardless of the crimes they committed, and declared categorically that the relative immaturity of juveniles made them less culpable for crime and thus both ineligible for certain very harsh punishments and subject to different procedures than adults for others. Second, the Court’s reasoning in Miller and Graham has potentially far-reaching implications for the sentencing of adults. These opinions extend to non-capital crimes the unique body of Eighth Amendment law the Court had hitherto restricted to death penalty cases. And the language of Justice Elena Kagan’s majority opinion in Miller casts at least some doubt on the power of legislatures to impose any mandatory sentence, whether of death or a term of imprisonment.

This Article contends that, while the results of Miller and Graham are gratifying as sentencing policy, the opinions announcing those results are troubling as a constitutional matter because they are badly theorized and because they are two strands of a web of decisions in which the Court has consistently used doubtful constitutional interpretations to transfer power over criminal justice policy from the legislatures – state and federal – to the courts.

January 4, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Who Sentences? | Permalink | Comments (22) | TrackBack

January 3, 2014

"Food As Punishment: Giving U.S. Inmates 'The Loaf' Persists"

NutraloafThe title of this post is the headline of this interesting new NPR segment. Here are excerpts:

In many prisons and jails across the U.S., punishment can come in the form of a bland, brownish lump. Known as nutraloaf, or simply "the loaf," it's fed day after day to inmates who throw food or, in some cases, get violent. Even though it meets nutritional guidelines, civil rights activists urge against the use of the brick-shaped meal.

Tasteless food as punishment is nothing new: Back in the 19th century, prisoners were given bread and water until they'd earned with good behavior the right to eat meat and cheese. But the loaf is something above and beyond. Prisons and jails are allowed to come up with their own version, so some resort to grinding up leftovers into a dense mass that's reheated. Other institutions make loaves from scratch out of shredded and mashed vegetables, beans and starches. They're rendered even more unappetizing by being served in a small paper sack, with no seasoning.

Prisoners who've had the loaf hate it. Johnnie Walton had to eat it in the Tamms Supermax in Chicago. He describes it as "bland, like cardboard." Aaron Fraser got the loaf while he was serving time from 2004 to 2007 in several different institutions for a counterfeit-check scheme. He loathed it. "They take a bunch of guck, like whatever they have available, and they put it in some machine," Fraser says. "I would have to be on the point of dizziness when I know I have no choice [to eat it]."

No one knows exactly how many institutions use it, but Benson Li, the former president of the Association of Correctional Food Service Affiliates, estimates that the number is over 100. At least 12 states — including California, Texas and New York — serve it in state-run institutions, as do dozens of municipal and county jails across the country.

In Pennsylvania state prisons, "food loaf" is made with milk, rice, potatoes, carrots, cabbage, oatmeal, beans and margarine. The Clark County Jail in Washington state serves a version with most of those ingredients, plus ground beef or chicken, apples and tomatoes.

Law enforcement says the loaf isn't so bad. "It's a food source; it contains all the vitamins and nutrients and minerals that a human being needs," says Milwaukee County Sheriff David Clarke, who has used the loaf in his jail for five years. "It's been approved by the courts. I've had it myself — it's like eating meatloaf. "

But prisoners who misbehave don't just get it once. They have to eat it at every meal, for days or weeks at a time. That's why it works as a deterrent, says Sheriff Clarke. "If you're up on a first-degree murder charge, or some serious sexual assault of a child, you don't have much to lose in jail," says Clarke.

"But when we started to use this in the disciplinary pods, all of a sudden the incidence of fights, disorder, of attacks against our staff started to drop tremendously. The word got around — we knew it would. And we'll often hear from inmates, 'Please, please, I won't do that anymore. Don't put me in the disciplinary pod. I don't want to eat nutraloaf.' "

Scientists say it's the monotony of eating the loaf that's the real punishment. Marcia Pelchat, a physiological psychologist at the Monell Chemical Senses Center in Philadelphia, says humans have evolved to crave a variety of food. "Having to eat the loaf over and over again probably makes people miserable. They might be a little nauseated by it, they're craving other foods," says Pelchat....

"Given that food is clearly recognized as a basic human need to which prisoners are constitutionally entitled, restrictions on food, taking away food has always been sort of legally right on the line," says David Fathi, director of the National Prison Project for the American Civil Liberties Union.

There's no guidance from the government on using the loaf, but the American Correctional Association, which accredits prisons and sets best practices for the industry, discourages using food as a disciplinary measure. The Federal Bureau of Prisons says it has never used the loaf in its facilities. Still, the loaf persists in other parts of the corrections system, and no agencies or organizations are keeping track of where and how often it's used.

So Benson Li, the former president of the Association of Correctional Food Service Affiliates and the food service director at the Los Angeles County Jail, offered to help us find that out. At a recent meeting of the association, Li conducted an informal survey at the request of NPR. About 40 percent of the prisons and jails that responded said their use of the loaf is diminishing, 30 percent said they do not use nutraloaf, and about 20 percent said their use was about the same or slightly growing.

Li says that, overall, the results suggest that the loaf is gradually being phased out. "[Prisons and jails] are using less or some of them are using sparingly — maybe just two to three times in the last year," he says.

Li says he thinks one of the reasons for this is that prisoners have been challenging the loaf in the courts. "You have seen a lot of different inmate claims and lawsuits against the Eighth Amendment in different states," he says.

One of the provisions of the Eighth Amendment is that "cruel and unusual punishment" not be inflicted on prisoners. So the prisoners who are filing these suits are hoping the courts will rule that chewing on loaf day after day is unconstitutional. And, believe it or not, there is precedent: In the 1970s, the Supreme Court ruled that a potatey prison paste called grue should be outlawed under the Eighth amendment.

The loaf has held up better than grue. Of the 22 cases brought since the beginning of 2012 alone, none have succeeded. But Li's informal survey suggests that the court cases are making the corrections industry increasingly squeamish about serving it.

And Fathi of the ACLU says this is part of a bigger transformation happening in the industry. "The fading of the use of nutraloaf is part of a larger long-term trend toward professionalization and, in most respects, more humane conditions of confinement," he says.

January 3, 2014 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (35) | TrackBack

Pennsylvania task force struggling through comprehensive review of state's death penalty

As reported in this local article, headlined "PA Task Force Delays Deadline For Possible Death Penalty Reforms," folks in the Keystone State are struggling through an effort to better understand the state's death penalty. Here are the details:

Thirty-two states, including Pennsylvania, have the death penalty. Since 1976 when the U.S. Supreme Court reinstated capital punishment, Rhode Island (1984), New York (2007), New Jersey (2007), New Mexico (2009) Connecticut (2012), and Maryland (2013) have abolished it. But the repeal in the last three states was not retroactive so they still have prisoners on death row. Massachusetts' death penalty statute was nullified in 1984 by court rulings.

Could Pennsylvania become the next state to abolish capital punishment? The Pennsylvania Task Force and Advisory Committee on Capital Punishment is nearing the end of a two-year comprehensive study of all aspects of the death penalty. “No one has ever done this before in Pennsylvania,” said state Sen. Stewart Greenleaf (R-Montgomery), whose legislation created the commission.

The Penn State Justice Center for Research, the Inter-branch Commission on Gender, Racial and Ethnic Fairness and the Joint State Government Commission are researching all aspects of capital punishment for the task force. They were supposed to report findings and make recommendations this month but have asked for an extension to spring to complete what Greenleaf calls a “very laborious and time-consuming” process, which involves examining death penalty cases in every county of the state.

Three prisoners have been executed in the commonwealth since 1976, two in 1995 and the other in 1999. During that same 37-year period, 1,352 prisoners were put to death in the U.S.

Greenleaf said the researchers are looking at policies, procedures and impact of the death penalty including whether it’s being applied disproportionately based on race. “They’re having primary concerns themselves with statutory aggravators and mitigators; they’re the factors that come into play when a jury decides whether they give the death penalty or not,” Greenleaf said.

Of the 189 inmates on Pennsylvania’s death row, 101 are black — 53 percent. Louisiana has the highest rate of blacks on death row at 70 percent. Nationwide, 41 percent of those awaiting execution are black. The task force is also looking at everything from intellectual disabilities of inmates to the appeals process, from the use of lethal injection to the impact of the process on victims’ families.

Greenleaf, a former prosecutor, said the panel could suggest eliminating the death penalty in Pennsylvania. “We have to look at the report, but, of course, it could result in abolishing it or it could result in some changes or modifications of the process, everything is on the table right now," he said. "We want to see what their recommendations are.”

He added that the commonwealth’s adoption of DNA testing several years ago, which resulted in the exoneration of one death row inmate, is a pivotal factor in the basic question. “Is it more important that we convict every guilty person and execute them or is it more important that we never execute an innocent person?" Greenleaf said. "Our founding fathers said that it’s better to acquit a few guilty people than it is to convict one innocent person.”

January 3, 2014 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (8) | TrackBack

January 2, 2014

A victim's perspective from Iowa on the aftermath of Graham and Miller

This notable local article from Iowa, headlined "As juvenile re-sentencing looms, murder victim's family speaks out," provides a useful reminder of the folks other than juvenile offenders who are very concerned with how the Supreme Court's rulings in Graham and Miller are going to be implemented in the states. Here are excerpts:

34 Iowa criminals currently sit in prison cells who, once sentenced to life in prison as juveniles, can file for the possibility of parole.  In 2010, the U.S. Supreme Court ruled sending a juvenile to life in prison without the possibility of parole is unconstitutional. Gov. Branstad then commuted those life sentences to 60 years in prison.  2012, however, brought the Iowa Supreme Court to rule 60 years as still unconstitutional.

“Because of the nature of the crimes that these individuals have committed, it has a very serious impact on the criminal justice system,” said Black Hawk County Attorney Tom Ferguson.

The ripple effect of these two court rulings extends past those just sitting in prison cells. Karen Salisbury was murdered in her Evansdale home in 1998.  17-year-old Matthew Payne was charged with the killing; a first-degree murder charge that, back then, sent him to spend the rest of his life in prison.

Salisbury’s three daughters — Rhonda Hoffman, Marsha DeWiese and Vicky Bolin — said they wrestled with those 1998 images of their mother’s death for years.  Now — they must relive the nightmare.  Payne, along with the other 33 Iowa criminals, can file to correct a now illegal sentence, hoping for parole.  “I don't ever want to have to go into the grocery store or somewhere and run into him,” Hoffman said.

Attorneys said parole, however, is not guaranteed.  A judge could grant the possibility of parole, or not at all.  Nevertheless, these parole hearings are annual; potentially bringing families back to the court room year after year.  “Every year if that comes up every year I will be there and I will make sure they hear my voice and they don't let him out,” Bolin said.

The daughters said the possibility of parole for Payne is extremely concerning for them; a thought that is nearly unbearable.  “What good are they in this society when they've been in prison for so long and know nothing else,” DeWiese said.

Hoffman said if Payne is ever granted parole, she hopes she never has to see him. “Don’t come back to Waterloo, I’d go somewhere else.”

January 2, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (23) | TrackBack

January 1, 2014

Seeking first-hand accounts/reports (good, bad and ugly) of start of recreational pot sales in Colorado

It is around 2pm EDT, January 1, 2014 as I write this post, which means recreational marijuana sales have now been underway for a full 12 hours in Colorado today.  On the east coast, at least, the sky has not fallen (and my kids have not already become regular pot smokers) ... yet.   Perhaps the sky is falling in the Mile High City.  Or, perhaps most accurately, a few more folks than usual in Denver, where most of the early sales are taking place, may be feeling sky high.

Jokes and snickering aside, I am genuinely interested in any and all "objective" on-the-ground reports from folks in Denver or elsewhere about what is going on in the midst of what some suggest is the start of the end of a 40-year drug war in the US and what others fear is the start of a doomed experiment with a harmful new legal substance.  As the title of this post highlights, I am especially eager to hear praise, complaints and observations from all quarters, if possible.

Cross-posted at  Marijuana Law, Policy & Reform

January 1, 2014 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (43) | TrackBack

Holiday references and caseload details in Chief Justice's 2013 year-end report

The headlines generated by the traditional "Year-End Report on the Federal Judiciary" from the Chief Justice of the United States (collected here at How Appealing) are justifiably all about the Chief's extended discussion of budget issues. But this year's report, which can be accessed here, also it includes a couple notable criminal justice caseload statistics as well as introductory paragraphs worthy of a poetic blogger.  Here is the how the 15-page report gets started and its criminal caseload details:

The year’s end brings predictable constants, including the revival of favorite phantoms —Scrooge’s ghosts and George Bailey’s guardian angel — who step out from the shadows for their annual appearance and then fade away.  Who doesn’t welcome the familiarity of the seasonal cycles, or retelling classic stories that, at their core, contain important truths? There are, however, some cycles from which we would all wish a break.  At the top of my list is a year-end report that must once again dwell on the need to provide adequate funding for the Judiciary.

I would like to choose a fresher topic, but duty calls.  The budget remains the single most important issue facing the courts.  This year, however, let’s take a page from Dickens and Capra.  Let’s look at what has made our federal court system work in the past, what we are doing in the present to preserve it in an era of fiscal constraint, and what the future holds if the Judiciary does not receive the funding it needs....

After rising four percent in 2012, filings in the regional courts of appeals dropped two percent to 56,475 in 2013.  Appeals involving pro se litigants, which amounted to 51 percent of filings, fell one percent.  Criminal appeals decreased 13 percent....

Filings for criminal defendants (including those transferred from other districts) decreased three percent to 91,266.  Excluding transfers, fewer defendants were reported for most types of major offenses, including drug crimes.  Filings for defendants charged with immigration violations dropped five percent.  The southwestern border districts accounted for 75 percent of the nation’s immigration defendant filings.  Defendants prosecuted for sex offenses rose 10 percent.  There also were increases in defendants charged with violent crimes and regulatory offenses....

The 131,869 persons under post-conviction supervision on September 30, 2013, was less than one percent below the total one year earlier. Persons serving terms of supervised release after leaving correctional institutions increased one percent to 109,379 and constituted 83 percent of all persons under supervision. Cases opened in the pretrial services system in 2013, including pretrial diversion cases, declined six percent to 103,003.

January 1, 2014 in Data on sentencing, Who Sentences? | Permalink | Comments (0) | TrackBack

December 31, 2013

Feds now saying Lynne Stewart should get compassionate release from prison term

This notable new AP story, headlined "Government asks NY judge to release ailing ex-terror trial lawyer from 10-year prison term," provides the grist for a useful final post for 2013. Here are the basics:

A dying former civil rights lawyer convicted in a terrorism case and sentenced to 10 years in prison is entitled to compassionate release because she has less than 18 months to live, prosecutors and the Federal Bureau of Prisons told a judge on Tuesday.

In a letter to U.S. District Judge John G. Koeltl, the government said 74-year-old Lynne Stewart was suffering from breast cancer that has metastasized to the lungs and bones. "Despite aggressive treatment, doctors have advised that her prognosis is poor," the letter said, adding she also has been diagnosed with anemia, high blood pressure, asthma and Type 2 diabetes. Stewart has been undergoing treatment at the Federal Medical Center in Carswell, Texas, as supporters have rallied to get her released. Once released, the letter said, she will live with her adult son in Brooklyn.

Stewart was convicted of helping a blind Egyptian sheik communicate with followers while he was serving a life sentence in a plot to blow up five New York landmarks and assassinate then-Egyptian President Hosni Mubarak. She has been imprisoned since 2009 and wasn't scheduled for release until August 2018.

She was first diagnosed with breast cancer in November 2005. The cancer went into remission but was discovered to have recurred after she was imprisoned. Stewart has written to the judge, saying she doesn't want to die in "a strange and loveless place" and wants to go home.

A previous compassionate-release request was denied in part on the grounds that Stewart had more than 18 months to live, though the judge said he would act promptly if the Federal Bureau of Prisons agreed she had less than 18 months to live and granted a compassionate-release application.

A federal appeals court in 2012 upheld Stewart's 10-year sentence, saying she earned it through serious crimes that she refused to acknowledge. The 2nd U.S. Circuit Court of Appeals said it was fair to boost Stewart's sentence from the two years and four months she was given in 2006. The three-judge panel that had ordered Stewart to be resentenced said it disagreed with her claim that her sentence was "shockingly high." It accused her of exhibiting a "stark inability to understand the seriousness of her crimes."

Arguably the biggest sentencing story of 2013 has been a (slight?) softening around the edges of a very harsh federal criminal justice system, largely as a product of the work of Attorney General Eric Holder. It is thus perhaps fitting that on the last day of 2013, federal officials are now supporting compassionate release for Stewart, only a few years after they succeeded in a multi-year, multi-court fight to seek to ensure she received a lengthy prison sentence that could have ensured she had to die in prison.

December 31, 2013 in Celebrity sentencings, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (33) | TrackBack

"President Obama, the merciless?"

The title of this post is the headline given to this notable new CNN commentary piece authored by P.S. Ruckman Jr., who runs the always great Pardon Power blog.  Here are excerpts:

This month, one of the least merciful presidents in the history of the United States granted 13 pardons and eight commutations of sentence.  The grants moved President Barack Obama's overall mark past the administrations of John Adams (who served only one term), William H. Harrison (who died of pneumonia after serving only 30 days), James Garfield (who was fatally wounded by an assassin after serving only four months) and George Washington.

The New York Times complained that, when it came to the pardon power, there was just "no excuse" for Obama's "lack of compassion" and encouraged him to "do much more." The American Civil Liberties Union called the pardons "a step" and hoped the President would "continue to exercise his clemency powers."  Meanwhile, the Cato Institute, a libertarian think tank, lamented the "drought" of pardons in the Obama administration and called the recent grants "mingy and belated."  Conservative columnist Debra Saunders wrote that it was "about time" Obama acted, and even tossed out the possibility/hope that he might "do it again soon."...

No one is clamoring for violent criminals to be yanked out of prisons and tossed into the streets to wreak havoc on society.  No one is lusting for the considered judgment of judges and juries to be whimsically overturned by politicians leaving office and, in the process, sidestepping accountability.

But, increasingly, there is recognition that budgets are tight, and prisons are both overcrowded and expensive.  The recidivism of those who spend time in prisons and exit without anything like serious rehabilitation is also costly.  Congress' recent recognition of the failure (if not outright unjust nature) of sentencing laws appears, to many, as still yet another indicator that there is consensus regarding the status of the so-called war on drugs: It has not worked out very well....

The pardon power will always carry an inherent political "risk," because no one can perfectly predict the future behavior of recipients and everyone's judgment can be second-guessed, if not mischaracterized.  Informed persons know Mike Huckabee did not "pardon" Maurice Clemmons and Michael Dukakis did not "pardon" Willie Horton.  But, of course, executives cannot always survive political storms with the support and encouragement of informed persons.

Nonetheless, the Founding Fathers considered the pardon power an integral part of our system of separation of powers and checks and balances.  Its presence in the Constitution is premised on the notion that Congress and the Courts are not always perfect.  Anyone care to disagree? It simply follows that, if the pardon power is being neglected or abused, then government is not doing what it was meant to do.

Alexander Hamilton furthermore noted, in the Federalist Papers, that the criminal codes of nations have an almost natural tendency toward over-severity.  For that reason, he argued, there should be easy access to mercy. Yes, you read that right, "easy access," or, in other words, something very different than what is going on in the Obama administration.

The fortunate thing is, presidents and governors can very easily minimize the political "risk" of pardoning by granting pardons regularly, consistently, throughout terms, as opposed to, very questionably, at the "last minute." While Christmas pardons may make some feel warm and fuzzy, they also send a message that is more counterproductive than anything.  They seem to say mercy is an afterthought, or worse, a gift, that may or may not be deserved.

The fact of the matter is the majority of individual acts of executive clemency in our lifetime have been pardons, which simply restored the civil rights of the recipients.  No one was sprung from jail.  Violent criminals were not tossed into the streets.  Judges and juries were not overturned.  Recipients have typically committed minor offenses, many involving no incarceration whatsoever, and usually, many years if not decades before pardon.  FBI background checks documented they had integrated back into society as law-abiding productive members.  Their pardons were not "gifts" so much as they were well deserved recognition.

Have these pardons been high-wire maneuvers?  Have they required presidents to spend precious political capital?  Not at all.  Obama has granted 52 pardons to date.  There is a much better than average chance that readers cannot name a single recipient.  George W. Bush granted almost 200.

So, why can't Obama restore the civil rights of more applicants?  Why doesn't he?  There is no obvious answer to that question, save lack of care and concern.  Where is the President who said his religion teaches him the importance of redemption and second chances?  Where is the hope?

December 31, 2013 in Clemency and Pardons, Who Sentences? | Permalink | Comments (7) | TrackBack

December 30, 2013

NY Times editorial talks of "Slow Demise of Capital Punishment"

The title of this new New York Times editorial, "The Slow Demise of Capital Punishment," is probably better viewed as wishful thinking rather than a sound prediction. Nevertheless, as excerpted below, the New York Times editorial board makes its most potent pitch against the death penalty in this piece:

More states are coming to recognize that the death penalty is arbitrary, racially biased and prone to catastrophic error. Even those that have not abolished capital punishment are no longer carrying it out in practice.

In 2013, Maryland became the sixth state to end capital punishment in the last six years. Eighteen states and the District of Columbia have abolished the penalty, and it is dormant in the federal system and the military. Thirty states have had no executions in the last five years.

As it becomes less frequent, the death penalty also becomes more limited to an extremely small slice of the country, and therefore all the more arbitrary in its application. All 80 death sentences in 2013 came from only about 2 percent of counties in the entire country, and all 39 executions — more than half occurred in Texas and Florida — took place in about 1 percent of all counties, according to a new report by the Death Penalty Information Center. Eighty-five percent of all counties have not had a single execution in more than 45 years.

Public support for the death penalty — an important factor in the Supreme Court’s consideration of its constitutionality — is at its lowest level in four decades, and 40 percent of people surveyed by Gallup say they do not believe it is administered fairly....

Of course none of this matters to, say, Troy Davis or Cameron Todd Willingham, both of whom were executed in recent years despite deep doubts about their guilt. Nor is it of much use to the 3,100 people still sitting on death row around the country.

The argument is not that all of these people are innocent, or that they deserve to be released. Most would be justly imprisoned for most if not all of their life. But the death penalty as applied in America now — so thoroughly dependent on where the defendant lives and how much money he can spend on his defense — violates the constitutional guarantees of due process and equal protection, and no longer can overcome the Eighth Amendment’s ban on cruel and unusual punishments.

The dishonor and shame of capital punishment are further highlighted by the current shortage of lethal-injection drugs, a “crisis” resulting from the refusal of European drug makers to provide them for executions. As a result, states that use lethal injection have turned to unregulated compounding pharmacies, and have even passed laws to hide the identity of those pharmacies and the chemical makeup of the drugs. This only underscores the fact that when it comes to the death penalty, the United States is virtually alone in the Western world.

Actually, all of these developments are in fact of great "use to the 3,100 people still sitting on death row around the country." Given that all these developments help explain why the US now averages less than 50 executions each year (and only a few dozen outside of Texas), the vast majority of murderers serving death sentences now should know that they are far more likely to die of old age in prison rather than in an execution chamber. (And, perhaps better yet for these murderers, their legal appeals are far more likely to get extra attention from lawyers and judges than the tens of thousands of defendants serving life sentences for lesser crimes.)

December 30, 2013 in Baze lethal injection case, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (26) | TrackBack

December 29, 2013

Any short- or long-term Colorado predictions as recreational marijuana sales are set to begin?

Lots of mainstream (as well as not-so-mainstream) media outlets are now talking a lot about what may or may not happen in Colorado a few days from now when state-legalized and regulated sales of recreational marijuana begins with the start of 2014.  This Reuters article is just one of many covering the buzz surrounding the opportunity for folks in Colorado to have a new legal way to get buzzed.   Here how it starts:

The world's first state-licensed marijuana retailers, catering to Colorado's newly legal recreational market for pot, are stocking their shelves ahead of a New Year's grand opening that supporters and detractors alike see as a turning point in America's drug culture....

[S]tarting January 1, cannabis will be legally sold and taxed at specially regulated retailers in a system modeled after a regime many states have in place for alcohol sales - but which exists for marijuana nowhere outside of Colorado.

For the novelty factor alone, operators of the first eight marijuana retailers slated to open on Wednesday morning in Denver and a handful of establishments in other locations are anticipating a surge in demand for store-bought weed.  "It will be like people waiting in line for tickets to a Pink Floyd concert," said Justin Jones, 39, owner of Dank Colorado in Denver who has run a medical marijuana shop for four years and now has a recreational pot license.

Jones said he is confident he has enough marijuana on hand for Day One but less sure of inventory levels needed after that.   About 90 percent of his merchandise is in smokable form, packaged in small child-proof containers.  The rest is a mixture of cannabis-infused edibles, such as cookies, candy and carbonated drinks.  "People seem to prefer smoking," he said.

In addition to the "Black Friday"-type atmosphere sure to part of the New Year's Day experiences in Denver, this AFP article highlights that some folks are planning a road-trip in order to get to Colorado for another kind of trip:

Enterprising companies are even offering marijuana tours to cash in on tourists expected to be attracted to a Netherlands-style pot culture -- including in Colorado's famous ski resorts.  "Just the novelty alone is bringing people from everywhere," said Adam Raleigh of cannabis supplier Telluride Bud Co.

"I have people driving in from Texas, Arizona, Utah... to be a part of history.  Over the last month I have received somewhere between four to six emails a day and five to 10 phone calls a day asking all about the law and when should people plan their ski trip to go along with cannabis," he added.

But as highlighted in this lengthy AP article, headlined "Legal pot sales begin amid uncertainty in Colorado," perhaps the only real certainty come 2014 in Colorado is uncertainty:

Will it be a showcase for a safe, regulated pot industry that generates hundreds of millions of dollars each year and saves money on locking up drug criminals, or one that will prove, once and for all, that the federal government has been right to ban pot since 1937?

Legal pot's potential has spawned businesses beyond retail shops. Marijuana-testing companies have popped up, checking regulated weed for potency and screening for harmful molds. Gardening courses charge hundreds to show people how to grow weed at home....

Dixie Elixirs & Edibles, maker of pot-infused foods and drinks, is making new labels for the recreational market and expanding production on everything from crispy rice treats to fruit lozenges. "The genie is out of the bottle," says company president Tripp Keber. "I think it's going to be an exciting time over the next 24 to 48 months."...

The challenges, activists and regulators say, are daunting in Colorado and Washington. One of the biggest questions is whether they have built an industry that will not only draw in tens of millions of dollars in revenue but also make a significant dent in the illegal market. Another is whether the regulatory system is up to the task of controlling a drug that's never been regulated.

There are public health and law enforcement concerns, including whether wide availability of a drug with a generations-old stigma of ruining lives will lead to more underage drug use, more cases of driving while high and more crime....

To prevent the criminal element from getting a foothold, regulators have enacted residency requirements for business owners, banned out-of-state investment and run background checks on every applicant for a license to sell or grow the plant. Whether the systems are enough is anyone's guess.

I like the descriptive phrase that the "genie is out of the bottle," and think the green marijuana genie could grant many wishes and also create many nightmares. And I am eager to hear reader thoughts and predictions about what might happen in this arena in 2014 before the official start of this unofficial "turning point in America's drug culture."

December 29, 2013 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (6) | TrackBack

Latest USSC quarterly data show (thanks to AG Holder?) record number of judge-initiated below-range sentences

I am intrigued to see that, as reported in Table 4 with the Fourth Quarter FY13 Quarterly Sentencing data report posted here at the US Sentencing Commission's website, there was a notable (though still small) uptick in the number of below guideline sentences imposed by federal district judges during the most recent quarter (from July 2013 to September 2013). Specifically, after a full year in which below-guideline sentence were imposed each quarter in just around 18.5% of all federal cases, in the most recent quarter the rate of judge-initiated below-range sentences jumped to 19.1%.  This marks, I believe, the highest percentage of judge-initiated below-range sentences in any quarter on record.

As the title of this post hints, I am inclined to hypothesize that a few more judges were willing to impose below-guideline sentences in a few more federal cases in the wake of Attorney General Eric Holder's big early August speech to the ABA lamenting excessive use of incarceration in the United States. When the US Attorney General says "too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason," I surely hope federal judges are listening and thinking even harder about whether to follow harsh guidelines that tend to recommend pretty long prison sentences in most cases.

That all said, the latest new data continue to show the same basic story lines and relatively stability in the operation and application of the advisory federal guideline sentencing system: these data show, yet again, that somewhat more than 50% of all federal sentences are within the calculated guidelines range, and that below-guideline sentences are a result of a prosecutor's request (which occurs in well over 25% of all cases).

December 29, 2013 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (1) | TrackBack

Audit reveals serious problems with GPS tracking of serious offenders in LA

As reported in this new Los Angeles Times article, headlined "One in four GPS devices on criminals in L.A. County were faulty," the potential technical problems posed by technocorrections have been revealed by a new local audit. Here is how the story starts:

One in every four GPS devices used to track serious criminals released in Los Angeles County has proved to be faulty, according to a probation department audit — allowing violent felons to roam undetected for days or, in some cases, weeks.

The problems included batteries that wouldn't hold a charge and defective electronics that generated excessive false alarms. One felon, county officials said, had to have his GPS monitor replaced 11 times over a year; for five days during the 45-day audit period, his whereabouts were unknown. "If you have faulty technology, that is a recipe for disaster," said Reaver Bingham, deputy chief of the probation department.

The findings come as nearly every California county is moving forward with some form of electronic monitoring to contend with tens of thousands of state inmates being released to their supervision, an offshoot of the effort to reduce prison overcrowding.

In Kern County, officials have instituted a "virtual jail." San Bernardino County is using GPS to track its homeless felons. And Los Angeles County Sheriff Lee Baca has floated a proposal to move 3,000 inmates out of crowded jails and into the community wearing GPS trackers.

Mandated for use on high-risk sex offenders by the 2006 passage of "Jessica's Law," GPS tracking has been promoted by both lawmakers and state law enforcement officials as a safe and cost-effective alternative to prison or jail. However, a Los Angeles Times investigation earlier this year showed that California corrections officials were aware of massive problems in their program. Citing an "imminent danger" to the public, the state in 2011 quietly replaced the GPS monitors on half of the paroled sex offenders.

Los Angeles County began leaning on electronic monitoring heavily in 2011, putting GPS devices on its highest-risk felons — repeat sex offenders, domestic abusers who had violated restraining orders and violent gang members.

December 29, 2013 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (12) | TrackBack