April 12, 2014
"Bombshell or Babystep? The Ramifications of Miller v. Alabama for Sentencing Law and Juvenile Crime Policy"
The title of this post is the title of this symposium foreword authored by Paul Litton and now available via SSRN. Here is the abstract:
This short essay, which serves as the Symposium Foreword, argues that the rationale of Miller is incoherent insofar as it permits juvenile LWOP sentences and that the Court misidentifies the foundational principle of Roper.
First, in banning mandatory juvenile LWOP sentences, the Court invokes Woodson, which bans mandatory death sentences. The Court maintains that Woodson, from its capital jurisprudence, applies because juvenile LWOP is “akin to the death penalty” for juveniles. But if the Court’s capital jurisprudence is binding based on that equivalence, Roper should imply that juvenile LWOP, like the death penalty, is unconstitutional for juveniles. This essay briefly explores whether there is a principled reason for the Court to invoke Woodson but not Roper from its capital jurisprudence.
Second, the Court does cite Roper for its “foundational principle,” which is, according to the Court, “that imposition of a State’s most severe penalties on juvenile offenders cannot proceed as though they were not children.” However, this principle cannot be the bedrock of Roper. Since Lockett, state capital sentencing schemes have not proceeded as though juvenile offenders were not children. Juvenile capital defendants could introduce their youth and accompanying characteristics in mitigation. Roper, therefore, is based on a much stronger principle, one that requires categorical removal of juveniles from the universe of death-eligible defendants and, thus, should imply the same for penalties equivalent to death.
This Foreword also provides a guide to the symposium’s wonderful contributions by Nancy Gertner, Will Berry, Frank Bowman, Josh Gupta-Kagan, Michael O’Hear, Clark Peters, Mary Price, and Mae Quinn. In doing so, it highlights a fascinating theme running through many authors’ answer to whether Miller represents a “bombshell or babystep”: Miller’s implications for the Court’s methodology for conducting proportionality analyses and, specifically, for the role of “objective indicia” of public attitudes in such analyses.
April 12, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2) | TrackBack
April 11, 2014
Was it "disrespectful" to the judiciary (or, in fact, quite helpful) for AG Holder to order prosecutors not to oppose application of pending drug sentencing guideline reduction?
The question in the title of this post is prompted by this National Review article, headlined "Judge: Holder ‘Disrespected’ Judicial Branch In Sentencing Change," about a verbal skirmish that emerged during yesterday's US Sentencing Commission meeting to approve formally a small reduction in all federal drug guideline sentences (basics here). Here are excerpts:
The United States Sentencing Commission Thursday unanimously approved an amendment to revise sentencing guidelines for non-violent drug offenders, but not before one commissioner accused Attorney General Eric Holder of having “disrespected” the judicial branch’s role in sentencing reform.
“I regret that, before we voted on the amendment, the Attorney General instructed Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” Judge William Pryor, Jr. said at a public hearing in Washington. “That unprecedented instruction disrespected our statutory role, ‘as an independent commission in the judicial branch,’ to establish sentencing policies and practices under the Sentencing Reform Act of 1984.”...
In August, Holder revealed his “Smart on Crime” initiative, which includes recommendations for reduced sentencing, without consulting with the Sentencing Commission — an independent agency within the judicial branch tasked with setting such policies. Although the sentencing reforms themselves were not controversial, Holder’s cavalier approach to separation of powers, including a March memo in which he “instructed the Assistant United States Attorneys across the Nation not to object to defense requests to apply the proposed amendment in sentencing proceedings going forward,” irritated commissioners and alarmed supporters of constitutional separation of powers.
The amendment approved Thursday, aims to reduce federal prison overcrowding by reducing non-violent drug trafficking offenders’ sentences by 17 percent. Holder did not attend the meeting. Instead, Commissioner Jonathan Wroblewski responded to what he called Pryor’s “very, very, very serious charge.” Wroblewski insisted that what the Attorney General did was “not only lawful, but in the greatest respect of the Justice Department,”
Chief Judge Ricardo Hinojosa stated that he was “surprised” by Wroblewski’s statement. He concurred with Pryor that Holder is setting a “dangerous precedent,” noting that two years ago, the Justice Department testified that it was not ready for reductions in sentencing, but that “all of a sudden, because the Attorney General says so” the DOJ has changed its course.
The meeting concluded with Chief Judge Patti Saris applauding the commission for its unanimous vote. But observers joined Pryor and Hinojosa in condemning Holder’s high-handed approach to constitutional boundaries. “For those committed to the rule of law, the question now goes beyond whether reducing sentences for dealers in dangerous drugs is wise. It’s whether the Attorney General, the chief law enforcement officer in the United States, is committed to following the law as it exists, or, instead, as he wants and speculates it might become,” William G. Otis a professor at Georgetown University Law Center, said in a statement.
My first reaction to this piece was to be intrigued and pleasantly surprised that Bill Otis was quoted criticizing the nation's top prosecutor for how he seeks to exercise his lawful prosecutorial discretion. (Notably, the author of this NRO piece seems to suggest that the AG should have felt some need to "consult" with a judicial branch agency before announcing a major prosecutorial initiative; I am pretty sure, based on prior debates over the potential problems with unreviewable prosecutorial discretion, that Bill does not believe it would be wise or even constitutional to expect federal prosecutors to have their charging policies reviewed by the judicial branch.)
My second reaction to this piece was to wonder if most federal judges agreed with Judges Pryor and Hinojosa that it was disrespectful and dangerous for the AG to instruct his prosecutors not to object to defense requests to apply the proposed reduced drug guidelines ASAP. This issue is dynamic and challenging in part because if AG Holder had instructed prosecutors to object to application of these new guidelines until they formally became law in November, then defendants would likely start requesting sentencing delays in all federal drug cases throughout the bulk of 2014. Because there are about 500 federal drug sentencings every week, this in turn would mean federal district judges nationwide would be receiving motions for sentencing postponements nearly every day for the next seven months.
Notably, just because AG Holder instructs his prosecutors not to object to the application of the proposed new drug guidelines, no judge is in turn obligated to follow the proposed drug guidelines. Rather, judges now just have an easier time applying this new guidelines, if they so desire, without having to put all their drug cases on hold until November. That is the context for the DOJ ex-officio representantive on the Commission, Jonathan Wroblewski, suggesting that AG Holder is actually seeking to help and show respect for the judiciary via his instructions to federal prosecutors.
That all said, if the substance of the drug guideline reform proposals now adopted by the Commission were very controversial (i.e., if the Commission itself was split) or if there was reason to believe that Congress and the President might formally reject the drug guideline reform proposal (i.e., if there was wide and vocal expressed opposition), then I think the concerns expressed by Judges Pryor and Hinojosa might be more compelling. But since these judges themselves both voted with the unanimous Commission to lower the drug guidelines, and since there is momentum in Congress for even more drug sentencing reform, I do not really find AG Holder's exercise of his lawful discretion in this setting all that disrespectful or dangerous.
Some recent related posts:
- US Sentencing Commission suggests lowering drug guideline sentences across the board!
- Attorney General to testify about drug guideline reform before US Sentencing Commission
- Notable talk of sentencing reform at CPAC conference
- Effective Heritage analysis of federal MMs and statutory reform proposals
- Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote
- Will Tea Party players (and new MMs) be able to get the Smarter Sentencing Act through the House?
- Previewing what AG Holder will say about drug sentencing to US Sentencing Commission
- US Sentencing Commission to vote on reducing drug sentencing guidelines
Is New Hampshire on the verge of becoming the next state to abolish the death penalty?
As reported in this local AP article, headlined "On revote, N.H. Senate panel endorses death penalty repeal measure," the Granite State appears to have now moved a step closer to possible repeal of capital punishment. Here are the details:
The Senate Judiciary Committee yesterday revisited the idea of repealing New Hampshire’s death penalty and recommended that it pass, setting up a potentially historic vote in the chamber next week. The bill represents the most energetic recent effort to repeal the state’s centuries-old death penalty. It passed the committee by a 3-2 vote, days after the same panel issued a tie vote that could have sounded the death knell on the repeal effort.
The House has voted resoundingly for repeal, and the governor supports it. The Thursday vote in the Republican-controlled Senate is said to be too close to call. “I think it will be a tight vote,” Senate Majority Leader Jeb Bradley told the Associated Press. “I think it will not break down all that much on party lines.”...
The Senate Judiciary Committee voted 2-2 Tuesday with one member absent, an outcome that would have automatically sent a message to the Senate to kill the repeal measure. The committee reconsidered the issue yesterday in deference to Democrat Donna Soucy of Manchester, who missed Tuesday’s meeting due to a family medical issue. There was no debate.
Sens. Bette Lasky, a Nashua Democrat, Sam Cataldo, a Farmington Republican, and Soucy voted for repeal. Sens. Sharon Carson of Londonderry and David Boutin of Hooksett, both Republicans, voted against it.
The state is the closest to repealing the death penalty that it’s been since 2000, when both houses of the Legislature approved repeal, but then-Gov. Jeanne Shaheen vetoed it. Democratic Gov. Maggie Hassan has said she would sign the repeal measure, because it wouldn’t affect the death sentence of Michael Addison – convicted of killing Manchester police Officer Michael Briggs in 2006. Addison is the only death row convict in the state, which has not seen an execution since 1939.
Death penalty opponents greeted yesterday’s vote with cautious optimism. Rep. Renny Cushing, a Hampton Democrat whose father and brother-in-law were murdered in separate crimes, has not wavered in his opposition to the death penalty through nearly two decades of sponsoring repeal measures.
“Everybody’s a swing vote,” Cushing said after yesterday’s vote. “It’s not a party issue,” he added. “There are a lot of senators genuinely wrestling with this.”
The House last month voted 225-104 in favor of repeal. The vote in the 24-member Senate – with 13 Republicans and 11 Democrats – could come down to a one-vote margin. A tie vote would kill the measure.
"Abandoned: Abolishing Female Prisons to Prevent Sexual Abuse and Herald an End to Incarceration"
The title of this post is the title of this intriguing new article by David Frank now available via SSRN. Here is the abstract:
Because the U.S. is unable to prevent widespread sexual violations of incarcerated women, it should apply the prescriptions of a recent U.K. female prison abolitionist movement as the most effective and humane solution to the problem.
Part I of this article examines the mass incarceration, composition, and sexual victimization of U.S. female prisoners. Part II evaluates the most recent attempt to stop the sexual victimization of U.S. prisoners under the Prison Rape Elimination Act. Part III presents the U.K. abolitionist solution and the small, though notable, consensus of support that developed around it. Part IV contends that, because neither the Prison Rape Elimination Act nor any previous law has adequately protected prisoners from sexual abuse, the incarceration of women is unconscionable when adequate prison alternatives of support programs and community care are available. This Part also argues against alternatives rooted in retaliation and violence. The article concludes with hope: it argues that the best response to chaotic brutality is not calculated brutality, but humanity.
April 10, 2014
US Sentencing Commission to vote on reducing drug sentencing guidelines
As detailed in this official notice, "a public meeting of the [US Sentencing] Commission is scheduled for Thursday, April 10, 2014, at 2:30 p.m." On the official agenda is "Vote to Promulgate Proposed Amendments," and as reported in this prior post, in January the USSC voted to publish proposed amendments to the federal sentencing guidelines that include an across-the-board reduction in the sentences recommended for all drug offenses.
I expect there will be some press reports about the USSC vote on the drug guidelines later today. In the meantime, this effective new PBS Frontline article headlined "Feds to Reconsider Harsh Prison Terms for Drug Offenders," provides some background and context:
The federal prison population has expanded by nearly 800 percent in the past 30 years, spurred in part by the increasing use of tougher sentences applied to nonviolent drug crimes. Now there’s a growing movement to scale it back. On Thursday, the U.S. Sentencing Commission, an independent federal agency, plans to vote on an amendment to sentencing guidelines that could ultimately begin to winnow the federal prison population, nearly half of whom are people convicted of drug offenses.
The amendment is part of a bipartisan push away from America’s addiction to incarceration, which prison reform experts say costs far too much, not only in dollars — $80 billion a year in 2010 — but also in the devastation primarily of African-American communities, who have been disproportionately caught up in the system.
The commission’s proposal would lower the sentencing guideline levels for drug-trafficking offenses, allowing judges to impose reduced sentences by about 11 months, on average, for these crimes. The guidelines are the range between which a judge can sentence an offender. Currently, those guidelines are set higher even than mandatory minimum sentences — the lowest possible sentence a judge could impose — to give prosecutors bargaining power. The amendment would set the upper and lower guideline limits around the mandatory minimums, leading to lower sentences for nearly 70 percent of drug-trafficking offenders, the commission said....
Prison reform advocates say the commission’s proposal is an incremental step, but an important one. “When you’re serving 10 years, six months can make a difference,” said Jesselyn McCurdy, an attorney with the ACLU’s Washington legislative office. “It’s incremental, but it’s all important because it sends the larger message that we have to do something about the harsh sentencing in the federal system.”
Should the Sentencing Commission’s amendment pass, it will be sent to Congress, which will have 180 days to make any changes. If it does nothing — which is the likely outcome given bipartisan Congressional support for the proposal — the resolution will take effect on Nov. 1.
For years, states, which carry the bulk of U.S. prisoners, have taken the lead on sentencing reform — largely out of necessity. Struggling with stretched budgets and overflowing prisons, 40 states have passed laws that ease sentencing guidelines for drug crimes from 2009 to 2013, according to a comprehensive analysis by the Pew Research Center. Seventeen states have invested in reforms like drug treatment and supervision that will save about $4.6 billion over 10 years, according to the Justice Department.
Such reforms also have gained popular public support. According to Pew’s own polling, 63 percent of Americans say that states moving away from mandatory minimum sentencing is a “good thing,” up from 41 percent in 2001. Even more — 67 percent — said that states should focus on treatment, rather than punishment, for people struggling with addiction to illegal drugs....
The Sentencing Commission itself notes that substantial reform requires action by Congress. “Our proposed approach is modest,” said Patti Saris, the commission’s chairwoman. “The real solution rests with Congress, and we continue to support efforts there to reduce mandatory minimum penalties, consistent with our recent report finding that mandatory minimum penalties are often too severe and sweep too broadly in the drug context, often capturing lower-level players.”...
The Senate is currently considering a bill called the Smarter Sentencing Act, a bipartisan bill introduced in July 2013 by Sen. Richard Durbin (D-Ill.) and Sen. Mike Lee (R-Utah). It wouldn’t abolish mandatory minimums, but it would allow judges to impose more lenient sentences for certain non-violent drug offenses. “Our current scheme of mandatory minimum sentences is irrational and wasteful,” Lee said when introducing the bill, adding that the act “takes an important step forward in reducing the financial and human cost of outdated and imprudent sentencing policies.”...
But the bill, which even the senators acknowledged as “studied and modest” on their website, doesn’t have great odds of passing. According to govtrack.us, a nonpartisan website that tracks congressional legislation, the Smarter Sentencing Act has only a 39 percent chance of being enacted.
Some recent related posts:
- US Sentencing Commission suggests lowering drug guideline sentences across the board!
- Attorney General to testify about drug guideline reform before US Sentencing Commission
- Notable talk of sentencing reform at CPAC conference
- Effective Heritage analysis of federal MMs and statutory reform proposals
- Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote
- Will Tea Party players (and new MMs) be able to get the Smarter Sentencing Act through the House?
- Previewing what AG Holder will say about drug sentencing to US Sentencing Commission
UPDATE: This press release reports that, as expected, the USSC voted today to reduce the federal guidelines for all drug offenses. Here is an excerpts from the press release:
The Commission voted unanimously to amend the guidelines to lower the base offense levels in the Drug Quantity Table across drug types. The drug guidelines under the amendment would remain linked to statutory mandatory minimum penalties. The Commission estimates that approximately 70 percent of federal drug trafficking defendants would qualify for the change, with their sentences decreasing an average of 11 months, or 17 percent, from 62 to 51 months on average.
The Commission this year has prioritized addressing federal prison costs and capacity with a continued commitment to public safety. The Commission estimates that the amendment reducing drug guidelines would reduce the federal prison population by more than 6,500 over five years, with a significantly greater long-term impact.
“This modest reduction in drug penalties is an important step toward reducing the problem of prison overcrowding at the federal level in a proportionate and fair manner,” said Judge Patti B. Saris, chair of the Commission. “Reducing the federal prison population has become urgent, with that population almost three times where it was in 1991.”
In addition, the Chair of the USSC made a statement in conjunction with today's vote, which is now available here via the USSC's website. The interesting three-page statement concludes with this interesting paragraph concerning possible retroactive application of the proposed new guidelines:
Over the next few months, the Commission will be studying the issue of whether the drug amendment should apply retroactively, which we are statutorily required to do. This is a complex and difficult issue, and requires a different analysis than the decision we have made today about reducing drug sentences prospectively. The Commission will take into account, as it always does when considering retroactivity, the purposes of the amendment, the magnitude of the change, and the difficulty of applying the change retroactively, among other factors. I know the Commission will carefully consider this issue, and many stakeholders will have strong views. I do not know how it will come out, but we will carefully review data and the retroactivity impact analysis we have directed staff to conduct as well as public comment in order to ensure that we weigh all perspectives.
First Circuit hears argument on whether Eighth Amendment might limit deportation as collateral consequence
This National Law Journal piece, headlined "Court Weighs Whether Deportation Fits Crime," reports on an interesting case that was argued before the First Circuit yesterday. Here are highlights:
A federal appellate court heard oral arguments Wednesday about whether immigration judges must consider whether deportation amounts to disproportional punishment for a legal permanent resident following a criminal conviction. The U.S. Court of Appeals for the First Circuit weighed that question in Hinds v. Holder.
Rogelio Blackman Hinds, 59, a U.S. Marine Corps veteran, is fighting an August 2013 Board of Immigration Appeals ruling upholding his removal. U.S. Immigration Judge Steven Day ordered Hinds ordered Hinds removed to Panama in March 2013 because of drug and firearms convictions for which he served 18 years in prison.
Hinds claims he should be allowed to stay because he’s lived in the United States for nearly 40 years, is married to a U.S. citizen and fears being targeted by a Panamanian gang to which he says his co-defendant belongs. Moreover, one of his five adult children is severely mentally and physically disabled and requires constant care.
Hinds also claims severe health problems that may be linked to his military service, including epilepsy, anemia, high blood pressure and post-traumatic stress headaches. His brief argues that the Fifth Amendment and Eighth Amendment, which bans cruel and unusual punishment, require proportionality review....
Amici who have lined up to support Hinds include the Center for Constitutional Rights, the American Immigration Council, the Post-Deportation Human Rights Project at Boston College, the American Civil Liberties Union and a group of law professors.
Judges Jeffrey Howard and O. Rogeriee Thompson sat on the panel with District of New Hampshire Chief Judge Joseph Laplante, sitting by designation. Howard asked Hinds’ lawyer, Zac Hudson, an associate at Washington’s Bancroft, “What would be the mechanics of doing the balancing you want to have done?”
Hudson replied that if the court ruled in Hinds’ favor without reaching the constitutional questions it “wouldn’t have to delineate a standard.” The review would be based on the judge’s individual analysis, he said.
Howard then asked Hudson which precedent best supports his argument. “It’s all the due-process cases we cite,” Hudson replied. “Lawful permanent residents have the full protection of the U.S. Constitution.”
Aimee Carmichael of the Justice Department’s Office of Immigration Litigation argued that Hinds wants criminal protections extended to civil proceedings. “The Eighth Amendment does not apply [and he] has not demonstrated that the agency has denied him due process,” she said.
Notable NY Times op-ed asks "What is prison for?"
The new Marshall Project's editor in chief, Bill Keller, has this lengthy op-ed in this morning's New York Times under the headline "College for Criminals." There is much of note in the op-ed, and I found these closing paragraphs especially intriguing:
Considering that the United States is the world’s leading warden, we should be able to answer with some conviction this question: What is prison for?
First, punishment, although it is often demeaning, brutal, psychologically debilitating and wildly disproportionate to the offense. Second, public safety. Social scientists argue about how much of our recent decline in crime is attributable to a surge in incarceration (I’ve heard estimates from 3 percent to 30 percent). But common sense says at least some of it is.
Third, rehabilitation. The bureaucracies that run prisons are called departments of “corrections” for a reason. This is at least as important as the first two purposes, because nearly 95 percent of the incarcerated are eventually released back into society.
Alas, nearly half of those released are returned to prison within three years for committing new crimes. Clearly we are not doing a good job of “correcting.”
This is not a bleedingheart cause. Leading conservatives and red state politicians have supported prison college programs as a matter of public safety and fiscal prudence. A RAND metaanalysis of 58 studies concluded that inmates who participated in these programs were 43 percent less likely to return to a life of crime; even assuming that the most redeemable inmates are the likeliest to sign up, this is an incredible return on a modest investment. Moreover, wardens and prison guards believe such programs lower the explosive tensions in prison.
Yet while 76 percent of prisons in the country offer high school diploma programs, only a third offer college degrees, which are, more than ever, a prerequisite for decent jobs. Education programs are among the first things to go in a recession. Now — when the economy is in slow recovery, the crime rate is relatively low, and there is an emerging national awareness that our way of punishment wastes money and lives — should be an opportune time to expand inmate education. But it has to be sold, not sprung without groundwork.
Experts who have studied the American way of crime and punishment far longer than I have tell me, to quote Michael P. Jacobson, a veteran corrections official who heads a public policy institute for the City University of New York, that they see “almost a complete disconnect between what we know and what we do.”
“The influence of highprofile crimes, fear of crime, issues of race, the acquisition of cheap political capital — all have had far more influence on criminal justice policy than what we know works, or what is fair or just,” Mr. Jacobson told me.
Governor Cuomo is now trying to rally private donors to underwrite his college program for a year, with an understanding that he will get the state to take over in Year 2. Let’s hope. But apparently the inmates of Sing Sing and Attica are not the only ones in need of correction.
"Death Delayed Is Retribution Denied"
The title of this post is the title of this notable new article by Russell Christopher now available via SSRN. Here is the abstract:
Does death row incarceration for upwards of thirty years or more impermissibly impose the suffering of additional punishment or permissibly bestow the benefit of death delayed and thus the enjoyment of life extended? Most commentators conceive of it as an unconstitutional additional punishment that is either cruel and unusual or disproportionally excessive. Most courts construe it as a constitutional nonpunishment that the death row prisoner opts for and benefits from. Sparking a long-running debate at the Supreme Court, Justices Stevens and Breyer view prolonged death row incarceration as unconstitutional additional punishment. Terming their view as “meritless” and “a mockery of our system of justice,” Justice Thomas finds it constitutional.
Attempting to break this impasse, this Article undertakes the first comprehensive assessment of death row incarceration under what the Supreme Court enthrones as the primary justification for the constitutionality of capital punishment — retributivism. Assuming that retributivism does justify capital punishment per se, this Article demonstrates that the combination of capital punishment plus substantial death row incarceration violates retributivism. Whether such incarceration constitutes additional punishment aggravating capital punishment or a life-extending, beneficial mitigation of capital punishment, the combination is unjustified under retributivism and thus perhaps unconstitutional.
April 9, 2014
Lots of notable sentencing activity via the Sixth Circuit on this hump day
I have long found that Wednesday seems to be a popular day for circuit sentencing decisions, and today the Sixth Circuit was involved in two notable sentencing actions.
One action involves the decision, noted in this order, to grant en banc review in US v. Mateen, a statutory interpretation case concerning "whether a state sexual offense that does not necessarily involve a minor or ward can trigger the sentencing enhancement under 18 U.S.C. § 2252(b)(2)." The (split) Mateen panel held that the sentence enhancement was not applicable, and the en banc grant suggest a majority of the Sixth circuit judges may not agree.
The other action involves a lengthy decision in a MDMA sentencing appeal, US v. Kamper, No. 12-5167 (6th Cir. April 9, 2014) (available here), which gets started this way:
Defendants-appellants Glenn Kamper and Joe Head appeal their respective 144-month sentences imposed for their roles in a conspiracy to manufacture and distribute MDMA (also known as 3,4-methylenedioxymethamphetamine or “ecstasy”) in Chattanooga, Tennessee. Head and Kamper both appeal their sentences as procedurally and substantively unreasonable. Kamper argues that the MDMA-to-marijuana equivalency ratio underlying his Guidelines sentencing range is based on faulty science, and that the district court erred when it justified its refusal to reject the Guidelines ratio with institutional concerns. We conclude that the district court misunderstood its authority to reject and replace a Guidelines equivalency ratio based on policy disagreements, but conclude that the district court’s error was harmless. We reject Kamper’s other arguments regarding the reasonableness of his sentence as without merit. Head argues that the district court erred in applying sentencing enhancements for his aggravating role in the criminal conspiracy and for obstruction of justice. We conclude that Head’s sentence must be vacated because the district court erred in applying a sentencing enhancement for obstruction of justice. Accordingly, we AFFIRM the judgment of the district court with respect to Kamper, but REVERSE the judgment of the district court with respect to Head and REMAND for resentencing.
Reviewing how US prisons now serve as huge warehouses for the mentally ill
This MSNBC article, headlined "Prisons are the ‘new asylums’ of the US: Report," effectively summarizes a new study documenting that that US prisons now "house ten times more people with mental illnesses than its hospitals." Here is more:
The report, released Tuesday by the Treatment Advocacy Center, found that state prisons and county jails house approximately 356,268 people with mental illnesses, while state mental hospitals hold only 35,000. The disparity is also a nationwide problem – only six states have psychiatric hospitals with more people in them than a prisons or jail.
Prisons, according to the report, have become the nation’s “new asylums.” The number of beds available at hospitals for mental health patients has been dropping for decades. And as the population of incarcerated people has exploded, so has the number of people with serious problems....
The report provided a breakdown of the number of mentally ill prisoners in each state’s correctional facilities, the laws governing treatment, and examples of how inmates are treated. Among others, they include a Mississippi prison designed for mentally ill inmates, overrun by rats, where some prisoners capture the rats, put them on makeshift leashes, and sell them as pets to other inmates. There was also a case in which a schizophrenic man spent 13 of 15 of his years in prison in solitary confinement....
“Inmates who linger untreated in jails and prisons become increasingly more vulnerable to their symptoms and the resulting victimization or violence,” the report read. Dr. E. Fuller Torrey, founder of the Treatment Advocacy Center and lead author of the study, said in a statement, “The lack of treatment for seriously ill inmates is inhumane and should not be allowed in a civilized society.”...
The report’s authors admit that reducing the number of mentally ill inmates in jails would have to come along with a massive recommitment to high-quality mental health care in hospitals – a tall order in this age of austerity. In the interim, they advocate for more outpatient treatment and jail diversion programs, as well as more planning, both when inmates enter the system and leave it.
The full report released by the Treatment Advocacy Center is titled "The Treatment of Persons with Mental Illness in Prisons and Jails: A State Survey," and it can be accessed in full at this link.
Retro Report provides reminder of "When Youth Violence Spurred ‘Superpredator’ Fear."
The New York Times together with Retro Report puts together articles and videos looking back a media coverage and the aftermath of high-profile stories of years gone by. The latest production is available here under the headline "hen Youth Violence Spurred ‘Superpredator’ Fear." Here are excerpts from the article that goes along with the great 10-minute video on the topic:
Social scientists like James A. Fox, a criminologist, warned of “a blood bath of violence” that could soon wash over the land. That fear, verging on panic, is the subject of this week’s segment of Retro Report, a series of video documentaries that examine major news stories from years ago and explore what has happened since.
What happened with the superpredator jeremiads is that they proved to be nonsense. They were based on a notion that there would be hordes upon hordes of depraved teenagers resorting to unspeakable brutality, not tethered by conscience. No one in the mid-1990s promoted this theory with greater zeal, or with broader acceptance, than John J. DiIulio Jr., then a political scientist at Princeton. Chaos was upon us, Mr. DiIulio proclaimed back then in scholarly articles and television interviews. The demographics, he said, were inexorable. Politicians from both major parties, though more so on the right, picked up the cry. Many news organizations pounced on these sensational predictions and ran with them like a punt returner finding daylight.
But a funny thing happened on the way to the apocalypse. Instead of exploding, violence by children sharply declined. Murders committed by those ages 10 to 17 fell by roughly two-thirds from 1994 to 2011, according to statistics kept by the Justice Department’s Office of Juvenile Justice and Delinquency Prevention. Mugged by reality, a chastened Mr. DiIulio has offered a mea culpa. “Demography,” he says, “is not fate.” The trouble with his superpredator forecast, he told Retro Report, is that “once it was out there, there was no reeling it in.”
It certainly had consequences. It energized a movement, as one state after another enacted laws making it possible to try children as young as 13 or 14 as adults... Many hundreds of juveniles were sent to prison for life, though in the last few years the United States Supreme Court has ruled that such sentences must not be automatic, even in murder cases. Individual circumstances and possible mitigating factors should be weighed, the justices said....
The superpredator scare fit neatly with a “lock ‘em up and throw away the key” approach to rising crime that had taken hold even before the ‘90s. Many states are now moving in the opposite direction, if only because incarceration is expensive, in both its human toll and its burden on strapped government budgets....
Fears about predators, super or not, have not entirely disappeared. Of late, some are concerned about what is called “the knockout game.” It involves a young man or group of young men punching a stranger on the street. This is cast essentially as a black-on-white crime, perhaps a gang initiation rite. No question, such assaults have taken place. But are they part of an organized “game”? In New York, the police seem unsure if they amount to more than isolated incidents.
As for superpredators, not everyone has abandoned the notion. In the ‘90s, Mr. DiIulio called those youngsters “remorseless” and “impulsive,” describing them as unburdened by “pangs of conscience.” Hmm, said Richard Eskow. Or words to that effect. Mr. Eskow, a senior fellow with the Campaign for America’s Future, wrote for The Huffington Post two years ago that he knew a group of people who matched those very descriptions. They were, he said, the reckless bankers and Wall Street high rollers who almost brought the United States economy to its knees a few years ago.
Fourth Circuit deepens (via dramatic split opinion) circuit split over fixing sentencing problems via 2255 motions
Though one needs to be a hard-core federal sentencing or habeas aficionado to really enjoy all the action, even casual fans may want to check out the extraordinary work of a Fourth Circuit panel yesterday in Whiteside v. US, No. 13-7152 (4th Cir. Apr. 8, 2014) (available here). Excerpts from the three separate opinions provides a flavor of all the action, but a full read is needed to understand and appreciate the passion that is reflected in the passages quoted below.
To begin, writing for the panel majority, Judge Gregory explains the legal basics at the outset:
This case presents the question of whether a federal inmate may use a 28 U.S.C. § 2255 motion to challenge a sentence that was based on the career offender enhancement under the United States Sentencing Guidelines when subsequent case law reveals the enhancement to be inapplicable to him. We find that he may, and in doing so hold that the mistake results in a fundamental miscarriage of justice that is cognizable on collateral review. For the reasons stated below, we grant a certificate of appealability, vacate the petitioner’s sentence, and remand the case for resentencing.
More than 30 pages later comes a concurring opinion by Judge Davis that runs only two pages, but effectively highlights the heart of the issues splitting this panel (and the circuit courts more generally). Here is an excerpt:
I am pleased to join Judge Gregory’s extraordinarily compelling opinion, which fully responds to the dissent’s overwrought and formalistic protestations that our judgment here presages an end to law as we know it. (Evidently, it is not enough simply for the dissent to say that there is no miscarriage of justice shown on this record.)
The dissenting opinion is hopelessly pleased with itself. This is not surprising, as it prostrates itself at the altar of finality, draped in the sacred shroud of judicial restraint....
In any event, what’s remarkable is that, as viewed through the lens of our good friend’s dissenting opinion, it is perfectly fine for the United States Department of Justice, which is to say the Executive Branch, to bypass supposed reverence for finality on a case-by-case basis, through waivers of limitations and other devices, see ante, Maj. op., n.6, but the Third Branch is duty-bound never to acknowledge instances in which law’s interest in finality must give way to competing values rooted in our shared abhorrence of manifest injustice. To devolve to the Executive Branch sole authority to identify a cognizable miscarriage of justice amounts to judicial abdication, not judicial restraint. Such an approach enjoys no legitimate place in our scheme of institutional checks and balances. The Third Branch’s transcendent role, in our enviable but imperfect system of criminal justice, is to afford protection from the loss of individual liberty resulting from profoundly erroneous decision-making, and not least of all, erroneous decision-making by the Third Branch itself, as in this very case.
The dissenting opinion favors what’s “finished” over what’s “right” and thereby blinks at a profound miscarriage of justice. It is wrong to do so.
Finally, Judge Wilkinson provides an addition 30+ pages to explain his views about why the panel majority gets this matter so very wrong. Here is how his lengthy opinion starts and ends:
Deangelo Whiteside was properly designated a career offender in the course of his federal sentencing proceedings. Now, years later, the majority vacates that sentence. In invalidating Whiteside’s sentence, the majority creates a circuit split over whether career-offender designations are cognizable on collateral review, and ignores settled law as to whether changes in circuit precedent can reset the statute of limitations for post-conviction review of federal criminal proceedings. The majority opinion represents a dramatic expansion of federal collateral review that is unsupported by law or precedent. It makes a shambles of the retroactivity doctrines that have long safeguarded the basic finality of criminal convictions. It disrupts the orderly administration of our criminal-justice system....
The Great Writ stands for the fundamental proposition that government too is subject to the given law. Here the government observed the law; it is, sadly, a court that accords no meaning to that fact. How is it that requiring someone to serve a sentence lawfully imposed and constitutionally rendered becomes a “plain injustice” and a “fundamental unfairness”? Maj. Op. at 29. This path vindicates no fundamental liberty. It only transforms collateral review into a double of direct review, a redundant mechanism for routine error correction, deployed to unsettle sentences that were imposed years earlier under governing law, in accordance with unexceptionable procedure, and by a sovereign acting in accordance with its sovereign duty to protect citizens from those who repeatedly violate its criminal laws.
For the aforementioned reasons, and because I view this decision as wholly wrong and deeply damaging to our criminal-justice system, I respectfully dissent.
April 8, 2014
"Imprisonment Inertia and Public Attitudes Toward 'Truth in Sentencing'"
The title of this post is the title of this intriguing new paper by Michael O'Hear and Darren Wheelock now available via SSRN. here is the abstract:
In the space of a few short years in the 1990s, forty-two states adopted truth in sentencing (“TIS”) laws, which eliminated or greatly curtailed opportunities for criminal defendants to obtain parole release from prison. In the following decade, the pendulum seemingly swung in the opposite direction, with thirty-six states adopting new early release opportunities for prisoners. However, few of these initiatives had much impact, and prison populations continued to rise. The TIS ideal remained strong.
In the hope of developing a better understanding of these trends and of the prospects for more robust early release reforms in the future, the authors conducted public opinion surveys of hundreds of Wisconsin voters in 2012 and 2013 and report the results here. Notable findings include the following: (1) public support for TIS is strong and stable; (2) support for TIS results less from fear of crime than from a dislike of the parole decisionmaking process (which helps to explain why support for TIS has remained strong even as crime rates have fallen sharply); (3) support for TIS is not absolute and inflexible, but is balanced against such competing objectives as cost-reduction and offender rehabilitation, (4) a majority of the public would favor release as early as the halfway point in a prison sentence if public safety would not be threatened, and (5) a majority would prefer to have release decisions made by a commission of experts instead of a judge.
AG Eric Holder advocates for Smarter Sentencing Act in testimony to House Judiciary Committee
As reported via this DOJ press release, Attorney General Eric Holder testified this morning before the US House Committee on the Judiciary. Here are parts of the AG's prepared remarks that should be of interest to sentencing fans:
Across the board, the Department’s comprehensive efforts reflect our commitment to integrity and equal justice — in every case and circumstance. And nowhere is this commitment stronger than in our work to strengthen America’s federal criminal justice system. Through the Smart on Crime initiative I announced last August, my colleagues and I are taking action on a number of evidence-based reforms — including modifications to the Department’s charging policies with regard to mandatory minimum sentences for certain nonviolent, low-level drug crimes. This commonsense change will ensure that the toughest penalties are reserved for the most dangerous or violent drug traffickers. And I’m pleased to note that Members of this Committee have shown tremendous leadership in the effort to codify this approach into law.
I’ve been proud to join many of you in supporting the bipartisan Smarter Sentencing Act — introduced by Representatives Scott and Labrador and cosponsored by Ranking Member Conyers — which would give judges more discretion in determining appropriate sentences for people convicted of certain federal drug crimes. And I pledge to keep working with leaders like you — and like Senator Rand Paul and others — to address the collateral consequences of certain convictions, including felony disenfranchisement policies that permanently deny formerly incarcerated people their right to vote.
We will never be able to simply arrest and incarcerate our way to becoming a safer nation. That’s why we need to be both tough and smart in our fight against crime and the conditions and behaviors that breed it. And this struggle must extend beyond our fight to combat gun-, gang-, and drug-fueled violence — to include civil rights violations and financial and health care fraud crimes that harm people and endanger the livelihoods of hardworking Americans from coast to coast.
UPDATE: As highlighted in this Politico report, headlined "Eric Holder at center of marijuana debate," following AG Holder's prepared testimony there was some heated discussion of the topic of federal marijuana policy. Here is how the Politico piece starts:
Attorney General Eric Holder found himself caught Tuesday in a vast congressional divide over how the federal government should respond to moves states have made to legalize marijuana.
During a House Judiciary Committee hearing, Republicans repeatedly bashed Holder for going too far to accommodate the state actions, while a Democrat pounded the attorney general for refusing to call for a study of whether the federal drug classification system exaggerates the dangers posed by cannabis.
How many states now require judges to consider military service and/or PTSD at sentencing?
The question in the title of this post is prompted in part by this short local article headlined "Calif. Bill Urges Judges To Consider PTSD In Sentencing Of Military Veterans." Here are the basics:
A bill moving through the state Legislature would urge judges to grant probation and give shorter prison terms to defendants who have mental health problems stemming from their military service.
AB2098 passed the Assembly on Monday on a 70-1 vote. It requires courts to consider post-traumatic stress disorder and other mental health issues in sentencing. The bill’s author, Democrat Marc Levine of San Rafael, says as many as one in five soldiers returning from Iraq and Afghanistan have PTSD and are more likely to commit crimes.
California law already requires judges to consider ordering treatment when granting probation for veterans with mental illness. The bill is one of several that address how to deal with veterans in the criminal justice system. It now heads to the Senate.
I view legislative action regarding consideration of military service and/or PTSD at sentencing to be part of a broader set of modern sentencing developments focused on the importance of offender characteristics. The modern structured/guidelines sentencing reform era has often generated laws and practices suggesting sentencing decision-making could and should focus much more, if not exclusively, on the specifics of an offense rather than the nature of the offender.
But the Supreme Court's recent Eighth Amendment rulings in Graham and Miller now suggest that an offender's youth is a constitutionally essential sentencing consideration (at least in some settings). State sentencing laws requiring consideration of military service and/or PTSD seems another example of the (post-modern?) view that consideration at sentencing of at least some offender characteristics may be essential to a fair and effective sentencing system.
Some older related posts:
- Should prior military service reduce a sentence?
- Prior military service as a sentencing mitigator gets a big boost from SCOTUS
- "Judge suggests more sentencing options for war veterans"
- Can downloading of child porn be blamed on post-traumatic stress disorder?
- "Judges Consider New Factor at Sentencing: Military Service"
- Kansas legislature considering bill for PTSD-based sentence reductions for veterans
- Ohio bill to require consideration of military service at sentencing
- "Neuroscience, PTSD, and Sentencing Mitigation"
- "Military Veterans, Culpability, and Blame"
NY Times debates "What It Means if the Death Penalty Is Dying"
Last week, lawmakers in New Hampshire heard testimony on a bill outlawing the death penalty. If passed, the law would make New Hampshire the 19th state to abolish capital punishment. The United States, the only country in the Americas to practice the death penalty last year, executed 39 people, four fewer than the year before, and Texas accounted for 41 percent of them, according to Amnesty International.
As executions become concentrated in fewer and fewer states and racial disparities continue, does the application of capital punishment make it unconstitutionally cruel and unusual?
Here are the contributions, with links via the commentary titles:
"Rare and Decreasing" by Richard Dieter
"Punishment Needs to Be Punishment" by Robert Blecker
"No Justice for Victims of Color" by Khalilah Brown-Dean
"Of Course, It’s Cruel and Unusual" by Kirk Bloodsworth
"Claims of Racial Disparity Are Misleading" by John McAdams
"The Most ‘Unusual’ It’s Ever Been" by Paul Butler
April 7, 2014
If it clearly cost thousands of innocent lives through heroin abuse, would most everyone oppose modern marijuana reforms?
I engendered an intriguing debate over research data, criminal drug reform and public safety concerns in my post here last week titled "If it clearly saved thousands of innocent lives on roadways, would most everyone support medical marijuana reforms?". I am hoping to engender a similar debate with the question in the title of this new post, which is my sincere inquiry, directed particularly to those most supportive of modern marijuana reform movements, as a follow-up to this notable new Washington Post article headlined "Tracing the U.S. heroin surge back south of the border as Mexican cannabis output falls." Here are excerpts:
The surge of cheap heroin spreading in $4 hits across rural America can be traced back to the remote valleys of the northern Sierra Madre. With the wholesale price of marijuana falling — driven in part by decriminalization in sections of the United States — Mexican drug farmers are turning away from cannabis and filling their fields with opium poppies.
Mexican heroin is flooding north as U.S. authorities trying to contain an epidemic of prescription painkiller abuse have tightened controls on synthetic opiates such as hydrocodone and OxyContin. As the pills become more costly and difficult to obtain, Mexican trafficking organizations have found new markets for heroin in places such as Winchester, Va., and Brattleboro, Vt., where, until recently, needle use for narcotics was rare or unknown.
Farmers in the storied “Golden Triangle” region of Mexico’s Sinaloa state, which has produced the country’s most notorious gangsters and biggest marijuana harvests, say they are no longer planting the crop. Its wholesale price has collapsed in the past five years, from $100 per kilogram to less than $25. “It’s not worth it anymore,” said Rodrigo Silla, 50, a lifelong cannabis farmer who said he couldn’t remember the last time his family and others in their tiny hamlet gave up growing mota. “I wish the Americans would stop with this legalization.”
Growers from this area and as far afield as Central America are sowing their plots with opium poppies, and large-scale operations are turning up in places where authorities have never seen them....
The needle habit in the United States has made a strong comeback as heroin rushes into the country. Use of the drug in the United States increased 79 percent between 2007 and 2012, according to federal data, triggering a wave of overdose deaths and an “urgent and growing public health crisis,” Attorney General Eric H. Holder Jr. warned last month.
Although prescription painkillers remain more widely abused and account for far more fatal overdoses, heroin has been “moving all over the country and popping up in areas you didn’t see before,” said Carl Pike, a senior official in the Special Operations Division of the Drug Enforcement Administration.
With its low price and easy portability, heroin has reached beyond New York, Chicago and other places where it has long been available. Rural areas of New England, Appalachia and the Midwest are being hit especially hard, with cities such as Portland, Maine; St. Louis; and Oklahoma City struggling to cope with a new generation of addicts. Pike and other DEA officials say the spread is the result of a shrewd marketing strategy developed by Mexican traffickers. They have targeted areas with the worst prescription pill abuse, sending heroin pushers to “set up right outside the methadone clinics,” one DEA agent said.
Some new heroin users begin by snorting the drug. But like addicts of synthetic painkillers who go from swallowing the pills to crushing and snorting them, they eventually turn to intravenous injection of heroin for a more powerful high. By then, experts say, they have crossed a psychological threshold — overcoming the stigma of needle use. At the same time, they face diminishing satisfaction from prescription pills that can cost $80 each on the street and whose effects wear off after four to six hours. Those addicts are especially susceptible to high-grade heroin offered for as little as $4 a dose but with a narcotic payload that can top anything from a pharmacy.
Unlike marijuana, which cartel peons usually carry across the border in backpacks, heroin (like cocaine) is typically smuggled inside fake vehicle panels or concealed in shipments of legitimate commercial goods and is more difficult to detect. By the time it reaches northern U.S. cities, a kilo may be worth $60,000 to $80,000, prior to being diluted or “cut” with fillers such as lactose and powdered milk. The increased demand for heroin in the United States appears to be keeping wholesale prices high, even with abundant supply.
The Mexican mountain folk in hamlets such as this one do not think of themselves as drug producers. They also plant corn, beans and other subsistence crops but say they could never earn a living from their small food plots. And, increasingly, they’re unable to compete with U.S. marijuana growers. With cannabis legalized or allowed for medical use in 20 U.S. states and the District of Columbia, more and more of the American market is supplied with highly potent marijuana grown in American garages and converted warehouses — some licensed, others not. Mexican trafficking groups have also set up vast outdoor plantations on public land, especially in California, contributing to the fall in marijuana prices.
“When you have a product losing value, you diversify, and that’s true of any farmer,” said David Shirk, a Mexico researcher at the University of California at San Diego. “The wave of opium poppies we’re seeing is at least partially driven by changes we’re making in marijuana drug policy.”
I find this article fascinating in part because it highlight one (or surely many dozen) serious unintended consequences of modern marijuana reforms in the United States. I also find it fascinating because, just as my prior post explored some possible public safety benefits of consumers switching from alcohol use to marijuana use, this article spotlights some possible public safety harms of producers switching from marijuana farming to opium farming.
Some recent related posts:
- If it clearly saved thousands of innocent lives on roadways, would most everyone support medical marijuana reforms?
- As heroin concerns grow, so do proposals to increase sentences
- "Drug Dealers Aren't to Blame for the Heroin Boom. Doctors Are."
- Should the feds reallocate all drug war resources away from marijuana to heroin now?
Cross-posted at Marijuana Law, Policy and Reform
"Billion Dollar Divide: Virginia's Sentencing, Corrections and Criminal Justice Challenge"
The title of this post is the title of a new report by the Justice Policy Institute, which was released last week, is available here, and is summarized via this press release. Here are excerpts from the press release:
As Virginia lawmakers consider a budget that would see corrections spending surpass a billion dollars in general funds, a new report points to racial disparities, skewed fiscal priorities, and missed opportunities for improvements through proposed legislation, and calls for reforms to the commonwealth’s sentencing, corrections and criminal justice system.
According to Billion Dollar Divide Virginia’s Sentencing, Corrections and Criminal Justice Challenge, ... while other states are successfully reforming their sentencing laws, parole policies and drug laws, Virginia is lagging behind and spending significant funds that could be used more effectively to benefit public safety in the commonwealth....
According to the report, approximately 80 percent of the corrections budget is being spent on incarcerating people in secure facilities, while only about 10 percent of the budget is spent on supervising people in the community. Put another way, in 2010 for every dollar the Commonwealth of Virginia spent on community supervision, it spent approximately $13 on costs for those incarcerated. Other states have a better balance between prison spending, and supporting individuals in the community.
"Taxpayers' wallets – and more important, people's lives – are in jeopardy," said Marc Schindler, executive director of JPI. "Instead of planning to spend more than $1 billion on an ineffective corrections system, Virginia should be looking to policies that are being implemented successfully in other states to make wiser use of precious resources and get better public safety outcomes.”...
The report describes challenges facing Virginia’s sentencing, corrections and criminal justice system, including:
- Worrisome racial and ethnic disparities in how the state deals with drugs and drug crimes: African Americans make up approximately 20 percent of the Virginia population, but comprise 60 percent of the prison population, and 72 percent of all people incarcerated for a drug arrest. JPI has compiled information for the largest Virginia cities and counties that show the disparities in drug enforcement, and the latest data show Virginia’s drug arrest rates on the rise;
- More people serving longer sentences and rising length-of-stay: The changes to Truth-in-Sentencing enacted in the 1990s eliminated parole, and reduced access to earned-time and good-time credits. The commonwealth has added more mandatory minimums that have lengthened prison terms, and about one quarter of all of Virginia’s mandatory minimum sentences involve drug offenses. Between 1992 and 2007, there has been a 72 percent increase in individuals serving time for drug offenses. There has also been a substantial and very expensive increase in the number of elderly individuals incarcerated in Virginia, despite strong evidence that these individuals pose little threat to public safety....
Does an imprisoned white supremacist have a right to an anti-Kosher diet?
The question in the title of this post is prompted by this local article from Illinois headlined "White Supremacist Hale Sues Bureau Of Prisons For Violating His Rights." Here are the basics:
It was nine years ago today that Matt Hale of East Peoria was sentenced to 40 years in prison – convicted of soliciting the murder of a federal judge. Now, without a lawyer, Hale is suing the federal Bureau of Prisons because he says his rights are being denied.
Matt Hale, a minister in the religion of Creativity, is suing because he says the federal prison system has been taking away his mail privileges.
“They just come in and announce to him that his mail is being taken away from him,” said Evelyn Hutcheson, Hale’s 75-year-old mother. Hutcheson is his staunchest defenders. She says her son is moral, never plotted against a judge – and she says his trial was dirty and tainted. “I would like to see him freed before I die. I really would. But I just know how dirty it is. I’m sorry. I know how dirty it actually is. And who am I? I’m just a little peon. I’m nothing.”
Besides wanting to get his mail regularly, Hale is suing the prison system to be served the diet he says his anti-Jewish religion requires: uncooked food like raw fruits, vegetables and nuts.
April 6, 2014
Noting the very cautious politics still surrounding pot legalization
Today's New York Times has this interesting lengthy article discussing pot politics under the headline "Despite Support in Party, Democratic Governors Resist Legalizing Marijuana." Here are excerpts:
At a time of rapidly evolving attitudes toward marijuana legalization — a slight majority of Americans now support legalizing the drug — Democratic governors across the country ... find themselves uncomfortably at odds with their own base.
Even with Democrats and younger voters leading the wave of the pro-legalization shift, these governors are standing back, supporting much more limited medical-marijuana proposals or invoking the kind of law-and-order and public-health arguments more commonly heard from Republicans. While 17 more states — most of them leaning Democratic — have seen bills introduced this year to follow Colorado and Washington in approving recreational marijuana, no sitting governor or member of the Senate has offered a full-out endorsement of legalization. Only Gov. Peter Shumlin, a Democrat in Vermont, which is struggling with a heroin problem, said he was open to the idea....
The hesitance expressed by these governors reflects not only governing concerns but also, several analysts said, a historically rooted political wariness of being portrayed as soft on crime by Republicans. In particular, Mr. Brown, who is 75, lived through the culture wars of the 1960s, when Democrats suffered from being seen as permissive on issues like this.
“Either they don’t care about it as passionately or they feel embarrassed or vulnerable. They fear the judgment,” said Ethan Nadelmann, the founder of the Drug Policy Alliance, an organization that favors decriminalization of marijuana. “The fear of being soft on drugs, soft on marijuana, soft on crime is woven into the DNA of American politicians, especially Democrats.” He described that sentiment as, “Do not let yourself be outflanked by Republicans when it comes to being tough on crime and tough on drugs. You will lose.”
In Washington and Colorado, the Democratic governors had opposed legalization from the start, though each made clear that he would follow voters’ wishes in setting up the first legal recreational-marijuana marketplaces in the nation. “If it was up to me, being in the middle of it, and having read all this research and having some concern, I’d tell people just to exercise caution,” Gov. John W. Hickenlooper of Colorado said in a recent interview....
Washington has yet to let its first marijuana stores open — that is expected to happen later this spring — but Gov. Jay Inslee has made his position clear. “As a grandfather, I have the same concerns every grandfather has about misuse of any drug, including alcohol and marijuana,” he said in a telephone interview, adding, “All of us want to see our kids make smart decisions and not allow any drug to become injurious in our life. “I recognized the really rational decision that people made that criminalization efforts were not a successful public policy,” Mr. Inslee continued. “But frankly, I really don’t want to send a message to our kids that this is a route that is without risk.”...
The resistance comes as public opinion on the issue is moving more rapidly than anyone might have anticipated. Nationally, 51 percent of adults support legalizing the drug, according to a New York Times/CBS News poll conducted in February, including 60 percent of Democrats, 54 percent of independents and 72 percent of young adults. Even 44 percent of Tea Party members said they wanted the drug legalized....
There is no obvious political upside to supporting legalization, analysts said, and politicians, as a rule, tend to be risk averse. “You don’t hold these positions without having a sense of your own place in history,” said former Representative Patrick J. Kennedy, who joined Mr. Sabet in founding Project SAM, which strives to reduce marijuana use by emphasizing health risks. “They can honestly see that this is not a good move, that it’s going to have huge consequences, not all of which can be foretold.”...
At this point, the prospects for other elected officials jumping on the legalization bandwagon is likely to depend on what happens as the experiments in Washington and Colorado proceed. Among the questions are whether legalization will lead to more drug abuse by teenagers and how much it will fatten state tax coffers.
“I don’t tell other governors what to do,” Mr. Hickenlooper said, “but when they asked me, I said, ‘If I was in your shoes, I would wait a couple of years and see whether
there are unintended consequences, from what is admittedly a well-intentioned law.’”
"Reviving the Excessive Fines Clause"
The title of this post is the title of this notable new paper by Beth Colgan now available via SSRN. Here is the abstract:
Millions of American adults and children struggle with debt stemming from economic sanctions issued by the criminal and juvenile courts. For those unable to pay, the consequences — including incarceration, exclusion from public benefits, and persistent poverty — can be draconian and perpetual. The Supreme Court has nevertheless concluded that many of these concerns lie outside the scope of the Eighth Amendment’s Excessive Fines Clause. In interpreting the Clause, the Court relied upon a limited set of historical sources to restrict “fines” to sanctions that are punitive in nature and paid exclusively to the government, and to define “excessive” as referring to — either exclusively or primarily — the proportionality between the crime’s gravity and the amount of the fine.
This Article takes the Court at its word by assuming history is constitutionally relevant, but it challenges the Court’s limited use of history by providing the first detailed analysis of colonial and early American statutory and court records regarding fines. This robust historical analysis belies the Court’s use of history to announce historical “truths” to limit the scope of the Clause, by showing significant evidence that contradicts those limitations.
The Article uses the historical record to identify questions regarding the Clause’s meaning, to assess the quality of the historical evidence suggesting an answer to such questions, and then to consider that evidence — according to its value — within a debate that incorporates contemporary understandings of just punishment. Under the resulting interpretation, the historical evidence articulated in this Article would support an understanding of a “fine" as a deprivation of anything of economic value in response to a public offense. “Excessive,” in turn, would be assessed through a broad understanding of proportionality that takes account of both offense and offender characteristics, as well as the effect of the fine on the individual. The proposed interpretation more faithfully reflects the history and its limitations, and broadens the Clause’s scope to provide greater individual protections.