April 19, 2014
"Blackstone's Curse: The Fall of the Criminal, Civil, and Grand Juries and the Rise of the Executive, the Legislature, the Judiciary, and the States"
The title of this post is the title of this notable new article by Suja Thomas now available via SSRN which should be of special interest to fans of juries. Here is the abstract:
When we watch television and movies, criminal, civil, and grand juries are portrayed as performing significant roles in our government. It may come as a surprise to most Americans to learn that despite the presence of the jury in three different amendments in the Constitution, juries play almost no role in government today. When America was founded, juries functioned differently — as an integral part of government in both England and the colonies.
This Symposium Article, a chapter in my forthcoming book, tells a story about this change in the power of the jury. Between the founding in the late eighteenth century and today, power shifted from juries to other parts of government — to institutions that juries were to check. So as power in the criminal, civil, and grand juries has decreased over time, the powers of the executive, the legislature, the judiciary, and the states have increased. Similar stories have been told about shifts in power, for example, from the legislative branch to the judicial branch, but never has a story been told about an institution like the jury that has absolutely no power to protect and take back its own authority. Of course, the jury has arguably not fallen or has risen through other changes. This topic will be introduced later in this chapter and developed in a future chapter. As will be argued subsequently, however, the substance of the jury's power under the Constitution has fallen.
April 18, 2014
Should Prez Obama create a "Presidential Commission on Mass Incarceration"? Who should be on it?
The questions in the title of this post are prompted by one of the executive actions suggested earlier this week the Brennan Center for Justice in this new report titled "15 Executive Actions to Overcome Government Dysfunction." Notably, as listed here, at least three of the suggested actions are focused on criminal justice matters that should be of special interest to sentencing fans:
9. Create a Presidential Commission on Mass Incarceration, modeled after the “Kerner Commission.”
10. Issue an executive order directing federal agencies to recast their criminal justice grants in a Success-Oriented Funding model.
11. Direct the Justice Department to identify federal prisoners to whom the Fair Sentencing Act would retroactively apply, and recommend commutations for all those eligible, barring exceptional circumstances.
The first proposal of these three struck me as especially novel and interesting, and here is part of the full report's discussion of the proposal:
With only 5 percent of the world’s population, the United States has 25 percent of its prisoners. More than 2 million Americans are behind bars. A quarter of the nation’s adult population has a criminal record. The prison population has increased sevenfold since 1970. The country spends a quarter of a trillion dollars a year on criminal justice, but true costs are wider: Economic and social impacts on families and children can continue for generations. The explosion in our correctional population extends far beyond prison: pre-trial detention, parole and probation supervision, and those with arrest records.
Public safety does not compel incarceration of this scope. More than half of prisoners are serving time for drug or nonviolent crimes. One in four new prison admissions are for violations of parole. 106 One in five people behind bars are simply awaiting trial.
Yet, the epidemic of mass incarceration hides in plain sight. Most Americans are unaware of it. Those who are aware are not mobilized to act.
Progressives and conservatives have begun to seek action. Several states have taken up reforms in recent years. Momentum is increasing in Washington. Last year, Attorney General Eric Holder announced the “Smart on Crime” initiative, calling for federal prosecutors to seek harsh sentences only for the most serious drug traffickers and other reforms.
These federal and states fixes, however, have been piecemeal rather than systemic. Full change is not possible without wide public support. Mass incarceration must be identified as a national problem requiring national attention. Though jurisdictions vary in the minutia of their justice systems, the overall drivers of the incarceration explosion are similar across the country.
Federal legislation to create a national commission on criminal justice has failed to pass repeatedly. This year, Congress created the Chuck Colson Task Force, named after the founder of Prison Fellowship. It will aim to study the federal prison system to alleviate overcrowding. A similar assessment should be made of the far broader problem.
The president can help make mass incarceration visible by creating a National Commission on Mass Incarceration of leading bipartisan policymakers and civic leaders. He can do so through an executive order or a presidential memorandum. And he can avail himself of a high profile venue, such as a commencement address, to announce the commission.
Such a panel could be modeled after the National Advisory Commission on Civil Disorders (chaired by Illinois Governor Otto Kerner, Jr.). President Lyndon B. Johnson created the “Kerner Commission” to study the causes of urban riots. The National Commission on Mass Incarceration should similarly study the current drivers of the growth in federal and state prison and jail populations. It should examine the accompanying economic and societal toll. And, it should issue concrete policy recommendations to achieve a measureable goal — for example, cutting the nationwide incarcerated population by 25 percent by 2025.
Proposals should focus on “front-end” changes that help stem the influx of people into the pipeline to prison.
The Kerner Commission’s members included New York City Mayor John Lindsay, Sen. Edward Brooke of Massachusetts, Litton Industry founder Charles Thornton, NAACP head Roy Wilkins, and Atlanta police chief Herbert Turner Jenkins. These prominent public figures helped bring national attention to the issue of race. The National Commission on Mass Incarceration should include similar public and civic leaders. Such a commission would draw the nation’s attention to this overlooked issue and, most importantly, catalyze action.
Regular readers will not be surprised to hear I like both the style and substance of this proposal. Thus, to answer my own post-title question, I do think Prez Obama should create a Presidential Commission on Mass Incarceration. (And, of course, I think I should be on this Commission along with Bill Otis and perhaps many other (but not all other) frequent commenters on this blog.)
Effort to repeal death penalty in New Hampshire falls one vote short
As reported in this New York Times piece, headlined "Measure to Repeal Death Penalty Fails by a Single Vote in New Hampshire Senate," a tie vote yesterday in the Granite State will keep the death penalty alive there for now. Here are the details:
In a tie vote, the New Hampshire Senate deadlocked Thursday on whether to repeal the death penalty, leaving the current law intact and New Hampshire as the lone state in New England that allows the execution of anyone convicted of a capital crime.
Only one person here is on death row, but his fate had as much to do with the vote as anything else. That inmate, Michael Addison, was convicted in 2008 in the shooting death of a Manchester police officer in 2006.
Proponents of the death penalty want him executed, but his case has been tied up in legal appeals. State senators opposed to the death penalty said that they understood the visceral feelings against Mr. Addison and that their measure would still allow his execution even as it abolished the law authorizing it. Death penalty supporters said that the bill posed constitutional problems and that Mr. Addison’s life could end up being spared.
“Trying to have it both ways was problematic for proponents of the bill — execute one person but repeal it prospectively,” Senator Jeb Bradley, a Republican and the majority leader, said in an interview after the vote. “That was a bridge too far for a lot of people,” said Mr. Bradley, who opposed repeal....
New Hampshire’s action on Thursday stalled for now what had appeared to be momentum toward the abolition of the death penalty. The State House of Representatives approved the repeal 225 to 104 last month, and Gov. Maggie Hassan, a Democrat, had been prepared to sign it. Repeal would have made New Hampshire the 19th state to abolish the death penalty and the last in New England. And it would have been the seventh state in seven years to do so. New Hampshire’s last execution was in 1939.
But the State Senate, where Republicans outnumber Democrats 13 to 11, split 12-to-12 on Thursday, and tie votes are considered defeats. Party leaders had freed their members for what they said would be a vote of conscience. Two Republicans broke with their party and voted for the repeal, and one Democrat voted against it....
Death penalty opponents were disappointed and said they would continue to lobby senators in hopes of bringing up the bill again before the legislative session ends June 30. Arnie Alpert, spokesman for the New Hampshire Coalition to Abolish the Death Penalty, said that many people “evolve” on the issue over the years and that there was still hope of changing minds.
Senator Bette Lasky, a Democrat and the chief sponsor of the bill, said she regretted that she did not have a chance to talk to all of her colleagues. “Many senators were so inundated, even when it came to colleagues talking to them, that they shut down,” she said.
Ms. Lasky said she would bring the bill up again if she knew she had the votes to pass it. Mr. Bradley, the majority leader, said it was hard to say whether supporters of the repeal could get enough votes to bring the measure back. “At 12-12, it could come off the table, but I suspect it won’t,” he said.
April 17, 2014
Big new empirical analysis of federal prosecutorial charging practices
I just learned about an important NIJ-funded project and report through the National Criminal Justice Reference Service which examines in depth federal prosecutorial charging decisions across US District Courts. The research was complete by Brian Johnson of the University of Maryland, and the 150+ page report, available at this link, is titled "Missing Link: Examining Prosecutorial Decision-Making Across Federal District Courts." Helpfully, the report starts with this informative and insightful abstract:
U.S. Attorneys are arguably the most powerful and least studied actor in the federal criminal court workgroup. They have immense discretion to decide which cases to prosecute and what charging concession to offer in the course of plea bargaining, yet a paucity of empirical research exists on these consequential decisions. Recent scholarship on criminal sentencing suggests sentencing decisions vary significantly across court contexts, but virtually no prior work investigates jurisdictional variations in prosecutorial decision-making outcomes.
The current study uses unique data from the Bureau of Justice Statistics on federal criminal case processing to study these issues. It links information across multiple federal agencies in order to track individual offenders across the various stages of the federal justice system. Specifically, it combines arrest information from the U.S. Marshall’s Service with charging information from the Executive and Administrative Offices of the U.S. Attorney and with sentencing information from the U.S. Sentencing Commission. Linking data from these multiple sources provides a unique opportunity to study elusive prosecutorial decision-making outcomes in the federal justice system. These individual data, then, are subsequently augmented with additional information on federal courts to examine contextual variations in charging decisions across federal jurisdictions.
Findings from this research suggest several important conclusions. First, there is little systematic evidence of age, race and gender disparities in U.S. Attorney decisions regarding which cases are accepted and which are declined for prosecution. The most common reason for case declinations reported by U.S. Attorneys was weak or insufficient evidence. Second, there is some evidence of disparities in charge reductions, but they operate in opposite directions for gender and race. Male defendants were less likely than female defendants to receive charge reductions but black and Hispanic defendants were slightly more likely than white defendants to receive them. Young, male, minority defendants, however, were both less likely to have their cases declined and less likely to receive charge reductions. Fourth, both case declinations and charging reductions demonstrate significant variation across federal district court environments. Larger districts were slightly more likely to decline prosecutions and reduce charges, but overall, few of the district-level characteristics that were examined proved to be strongly related to jurisdictional variations in prosecutorial decision-making outcomes.
In terms of policy recommendations, this research suggests that there is a strong need for improved data collection efforts on federal prosecution. The dearth of research on prosecutors reflects a lack of quality data on their decisions-making processes and outcomes and on the social contexts in which these decisions are made. Increased transparency, accountability, fairness and equality in federal punishment will ultimately require improved information on the essential role played by U.S. Attorneys in the multiple decision-making points that comprise criminal case processing in the federal criminal justice system.
I will need lots of time and lots of help digging into the data in the report before I can reach any truly informed conclusions about what this research most forcefully documents. But a review of just this abstract confirms my belief and concern that fully understanding the impact and import of prosecutorial discretion is a huge puzzle and challenge in the federal sentencing system.
"Culpability and Modern Crime"
The title of this post is the title of this intriguing new paper by Samuel Buell now available via SSRN. Here is the abstract:
Criminal law has developed to prohibit new forms of intrusion on the autonomy and mental processes of others. Examples include modern understandings of fraud, extortion, and bribery, which pivot on the concepts of deception, coercion, and improper influence. Sometimes core offenses develop to include similar concepts, such as when reforms in the law of sexual assault make consent almost exclusively material. Many of these projects are laudable. But progressive programs in substantive criminal law can raise difficult problems of culpability. Modern iterations of criminal offenses often draw lines using concepts involving relative mental states among persons whose conduct is embedded within socially welcome activities. With such offenses, legal institutions struggle in borderline cases to locate sufficient fault to satisfy the demands of justification for punishment. This Article demonstrates this problem through exploration of the law of each of these offenses in modern form.
To address the problem, the Article turns to criminal law theory, finding a connection between culpability and the principle of notice in criminal law. Rather than its absence serving to exculpate, notice can profitably be understood to inculpate. To manage the problem of culpability in modern crime, the Article concludes, legal institutions should attend more explicitly — in both criminalization and adjudication — to the questions whether the actor was aware of the normative wrongfulness of her conduct and, if not, whether punishment is justified on a negligence level of fault. This orientation is especially advisable when further expansive moves in American criminal justice are now difficult to justify.
April 16, 2014
Another bizarre, sad and fatal case of reefer madness?
As reported in this prior post, a Denver coroner report concluded that a young man fell to his death in March after eating marijuana cookies which may have caused him to act erratically. Now, as reported in this local article, headlined "Police looking at pot role in wife's murder," another sad and fatal event might be linked to marijuana use in Colorado. Here are the distressing details:
The Denver man accused of shooting his wife in their home is in jail without bond. Richard Kirk made his first court appearance on Wednesday. He's facing first-degree murder charges after reportedly telling officers that he killed his wife, 44-year-old Kristine Kirk, while she was on the phone with 911.
Richard's family was in court on Wednesday to support him. They declined comment because they were advised not to speak.
It happened around 9:30 p.m. on Monday in the 2100 block of South St. Paul Street. Law enforcement sources tell 9NEWS that Kristine told the 911 dispatcher her husband Richard Kirk may have eaten marijuana edibles and that he was hallucinating and scaring their three young children.
"I can't get necessarily into specifics about that, but we are looking at a marijuana aspect of this investigation to see if it did play a role in this particular crime," said Denver Police spokesperson Sonny Jackson.
A longtime friend of the Kirk family, who did not want to be identified, told 9NEWS Richard is a religious man, happy-go-lucky and very friendly, who is not known for being violent. The friend also said Kristine was an amazing mother and good friend. They are stunned by what happened. It is a shock shared by many in the neighborhood where the crime scene tape remains a stark reminder of what unfolded there....
Richard has a prior arrest in Douglas County for driving under the influence and careless driving. A police source told 9NEWS it did not appear cops had ever been called to the home before.
Neighbors say they are still coming to grips with what happened. "Just kind of shocking, and it's almost just incredible that something like this would happen," Coyne said.
Kristine was on the phone with 911 for 12 minutes before she was shot. Denver Police said that's not unusual because the call originally came in as non-life threatening, but they plan to look into the circumstances of that call to make sure it was handled properly.
Though I am not ready to jump to any conclusions about this bizarre story, if this sad matricide gets attributed to marijuana use it could certainly impact public perceptions about the pros and cons of marijuana reform.
UPDATE: I just came across this AP story, headlined "Police: Denver man ate marijuana candy before fatally shooting his wife," which provides these additional details about this tragic story:
Authorities say a Denver man accused of killing his wife while she was on the phone with 911 ate marijuana-infused candy before he allegedly shot her.
According to search warrants released Thursday, 44-year-old Kristine Kirk told dispatchers her husband bought and ate the candy before he started hallucinating and frightening the couple's three children. Police say 47-year-old Richard Kirk also may have taken prescription pain medication before he began acting erratically.
It was not clear whether the pot influenced his behavior.
Critical reflections on the Cantu commutation ... aka why some federal prosecutors perhaps deserve to be demonized
The more I reflect on the typo-correction sentence commutation of federal prisoner Cesar Huerta Cantu (basics here), and especially after re-reading this 2255 dismissal order that followed Cantu's own effort to have a court fix its own significant sentencing error, the more disgusted I feel about the modern federal sentencing system and especially about the U.S. Department of Justice and those federal prosecutors most responsible for Cesar Cantu's treatment by our Kafkaesque system. In an effort to achieve some catharsis, let me try to briefly explain my feelings in three basic points:
1. Cantu's original federal sentencing as guidelines numerology: My disgust begins as I think about the basic reality that our federal sentencing system enables a small numerical typo — what should have been a 34 was a 36 in the presentence report guideline calculations — to result in 38-year-old defendant with no criminal history (who pleaded guilty and had considerable family support) to get sentenced to an extra 3.5 years in prison. I continue to struggle to find much sense of justice or wisdom in a federal sentencing system in which quantitative numbers invented by a government agency, rather than qualitative factors and reasoned judgment, often still conclusively determine how many years or decades defendants are ordered to spend locked in a cage.
2. Cantu's original federal sentencing as federal actors gone numb: Arguably more depressing than a federal sentencing system in which numbers invented by a government agency determine how long a defendant gets locked up are sentencing actors whose concern for the human realities of incarceration have been numbed by all the numbers. One would hope that, as part of a system in which years of human experience for federal defendants (and those who care about them) get determined by basic math, everyone involved would make extra sure the math is always done right. But, numbed by so many humans being imprisoned for so many years based on so many numbers, the author of the PSR did not notice a typo that inflated Cantu's guideline-recommend prison sentence by many years, and neither did the defense attorney representing Cantu, and neither did the US Attorneys prosecuting Cantu, and neither did the federal judge sentencing Cantu.
3. Cantu's dismissed 2255 motion as federal prosecutors possessed: Bill Otis and others sometimes complain that I seem at times to suggest federal prosecutors are evil or satanic. In fact, I have great respect for the hard work of federal prosecutors, and I am sure I would much rather have my daughters date 99% of federal prosecutors than 99% of federal defendants. But I must wonder about what kind of evil or satanic forces may have possessed the federal prosecutors who responded to Cantu's pro se 2255 motion to correct his sentence with a motion to dismiss this matter as time-barred.
Based on my reading of this 2255 dismissal order that followed Cantu's motion, federal prosecutors have never disputed that a typo resulted in Cantu receiving a sentence 3.5 years longer than he should have, nor have they disputed that federal government officials are wholly responsible for this consequential error. Still, the federal prosecutors who contributed to a mistake costing Cantu 3.5 years of his freedom responded to his 2255 motion by urging the sentencing judge also responsible for this mistake to refuse to correct Cantu's sentence because Cantu discovered their mistakes too late. I am hard-pressed to come up with adjectives to describe this federal prosecutorial decision to seek dismissal of Cantu's 2255 motion other than inhumane.
I want to be able to imagine a positive motivation for why federal prosecutors sought a procedural dismissal of Cantu's motion to correct his indisputably erroneous sentence: perhaps, I was thinking, six years after prosecutors helped get an erroneously long sentence imposed on Cantu, these prosecutors came to believe Cantu was a criminal mastermind still involved in serious criminal wrongdoing from prison. But, as this New York Times article reports, years after his initial erroneous sentencing, Cantu provided "law enforcement authorities with substantial assistance on an unrelated criminal matter" and "he has been a model prisoner, taking vocational and life skills courses and expressing remorse." In addition, according to the Times reporting, Cantu is married and has 8-year old daughter. Even if prosecutors were, for whatever reasons, disinclined to help Cantu get his erroneous sentence fixed after Cantu himself had helped the prosecutors, wouldn't they lose a little sleep over the notion that a typo could end up costing Cantu's wife the chance to have her husband's help to raise their daughter during her coming adolescence?
I am hoping Bill Otis or other current or former federal prosecutors will help me feel better about the work of our federal sentencing system and the Department of Justice in the wake of the Cantu commutation. Especially because Prez Obama has been so stingy with his clemency power, I want this latest commutation to be a reason to celebrate rather than curse our justice system. But unless and until someone can metamorphasize my understanding of the work of federal prosecutors in this case, I have a hard time not thinking that Josef K. and Cantu have far too much in common.
April 16, 2014 in Clemency and Pardons, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (25) | TrackBack
Another sign of the modern sentencing times: notable sponsor for "How the Criminal Justice System Impacts Well-Being"
I am pleased to note a notable event taking place in Texas this evening under the banner "Rule of Law: How the Criminal Justice System Impacts Well-Being." Here is a description of the event, with its notable chief sponsor (and a link) to be found after the jump:
This Rule of Law event is presented by the Charles Koch Institute.
Can criminal justice system reform improve overall well-being for individuals, families, and communities?
The United States has only 5 percent of the world’s population but about 25 percent of its known prison population. In fact, the country's prison population has increased by 790 percent since 1980, exceeding 2 million people in 2002.
We hope you’ll join us for a discussion on how the sharp rise in the number of people behind bars has had a significant impact on well-being. A criminal conviction, even for a minor offense, hinders opportunity and advancement, can contribute to a breakdown in family structure, and can put a strain on community resources. All too often, the effects of incarceration propel former prisoners to commit another crime, creating a vicious cycle of recidivism.
Thoughtful dialogue on this issue can lead to solutions to the challenges facing the criminal justice system and those affected by it, especially the least fortunate. That’s why we’re bringing together leading figures in the criminal justice arena for a conversation on the use of criminal versus civil law; federal and state reforms; mandatory minimum sentences; and other topics.
I know, as reported here by the founder of FAMM Julie Stewart, that "David Koch has donated generously and without fanfare to Families Against Mandatory Minimums for many years. And the broader libertarian commitments of the Koch brothers should make them fans of a variety of sentencing and drug war reforms, especially at the federal level.
If (when?) the Koch Brothers together start aggressively and visibly putting lots of their political might and their billions behind sentencing reform efforts, I will start to believe seriously that significant reform is on the horizon. Indeed, it would be especially significant (and surely a huge boast to the presidential prospects of Senator Rand Paul) if the Koch brothers were to make clear to all members of the GOP that they will only support those candidates who are vocal and active suporters of significant federal sentencing reform.
"Let the Burden Fit the Crime: Extending Proportionality Review to Sex Offenders"
The title of this post is the title of this paper by Erin Lynn Miller, which I just noticed via SSRN. Here is the abstract:
Under current due process doctrine, punitive damages awards against civil defendants are reviewed for "proportionality" with the underlying misconduct, in accordance with traditional principles of retribution in punishment. This Comment argues that the same proportionality analysis could and should be applied to review statutes imposing harsh civil restrictions on the lives of released sex offenders who have already served their criminal sentences.
The argument first proceeds by way of analogy. Like punitive damages in the civil context, sex offender restrictions are (1) in tension with the principle of fair notice of punishment, (2) imposed via a structurally defective procedure, (3) directed against a socially disfavored group, and (4) punitive in nature. It is these justifications that the Supreme Court has offered for reviewing the proportionality of punitive damages. Adapting the proportionality test developed in the punitive damages case BMW v. Gore, this Comment then outlines four factors that courts could use to review sex offender restrictions under the Due Process Clauses.
Denver reporting notable 2014 crime reduction since legal pot sales started
Three months after Colorado residents legalized recreational marijuana with the passage of Amendment 64 in Nov. 2012, Sheriff Tom Allman of Mendocio County, Calif. – a haven for marijuana growers – warned that an onslaught of crime was headed toward Colorado. “Thugs put on masks, they come to your house, they kick in your door. They point guns at you and say, ‘Give me your marijuana, give me your money,’” Allman told a Denver TV station in February....
But a new report contends that fourteen years later, even after Colorado legalized the sale of small amounts of marijuana for recreational use on Jan. 1 of this year, violent and property crime rates in the city are actually falling.
According to data from the Denver Police Department, violent crime (including homicide, sexual assault, robbery, and aggravated assault) fell by 6.9% in the first quarter of 2014, compared with the same period in 2013. Property crime (including burglary, larceny, auto theft, theft from motor vehicle and arson) dropped by 11.1%.
A study looking at the legalization of medical marijuana nationwide, published late last month in the journal PLOS ONE, found that the trend holds: Not only does medical marijuana legalization not correlate with an uptick in crime, researchers from the University of Texas at Dallas argue it may actually reduce it. Using statistics from the FBI’s Uniform Crime Report and controlling for variables like the unemployment and poverty rates; per capita income; age of residents; proportion of residents with college degree; number of police officers and prisoners; and even beer consumption, researchers analyzed data from all 50 states between 1990 and 2006....
“The central finding gleaned from the present study was that MML (medical marijuana legalization) is not predictive of higher crime rates and may be related to reductions in rates of homicide and assault. Interestingly, robbery and burglary rates were unaffected by medicinal marijuana legislation, which runs counter to the claim that dispensaries and grow houses lead to an increase in victimization due to the opportunity structures linked to the amount of drugs and cash that are present.”
The study drew a link between marijuana and alcohol use, surmising that the legalization of pot could cause the number of alcohol-fueled crimes to decline. “While it is important to remain cautious when interpreting these findings as evidence that MML reduces crime, these results do fall in line with recent evidence and they conform to the longstanding notion that marijuana legalization may lead to a reduction in alcohol use due to individuals substituting marijuana for alcohol. Given the relationship between alcohol and violent crime, it may turn out that substituting marijuana for alcohol leads to minor reductions in violent crimes that can be detected at the state level.”
Of course, this is a limited set of data and correlation does not prove causation. But, at the very least, this early crime data certain provide more helpful evidence for supporters of drug law reforms who are eager to assert that it is not drugs but drug prohibition that contributes to crimes.
Some recent related posts:
- New study suggests legalizing medical marijuana may reduce violent crime
- Months into state experiment, first death officially linked to marijuana legalization in Colorado
- If it clearly saved thousands of innocent lives on roadways, would most everyone support medical marijuana reforms?
- "Cooperative Federalism and Marijuana Regulation"
- New Jersey State Municipal Prosecutors Association endorses marijuana legalization
- Should the feds reallocate all drug war resources away from marijuana to heroin now?
April 15, 2014
NY Times editorial laments "Echoes of the Superpredator"
While traveling, I missed this recent New York Times editorial discussing the persistence of tough juve sentencing laws after superpredator fears have receded. Here are excerpts:
News reports — usually featuring images of glowering black teenagers — warned of the coming wave of violence that would flood the country. Respected criminologists bought into and amplified the hysteria. Most destructively, almost every state passed laws making it easier to prosecute juveniles as adults, by increasing the number of crimes or reducing the age that triggered adult prosecution — and in some cases eliminating the minimum age altogether....
Two decades later, it’s easy to look back in judgment, but it would be a mistake to think the nation has fully moved beyond that mind-set. Many states continue to punish juveniles as harshly as they can, even though the Supreme Court has held in a series of landmark rulings since 2005 that young people are “constitutionally different” from adults....
Some states have taken the court’s rulings, and its reasoning, to heart. Since the ruling in Miller, five states have abolished juvenile life without parole in all cases. In March, West Virginia lawmakers passed a bipartisan bill that provides parole review for any juvenile who serves at least 15 years in adult prisons. Similar legislation is pending in Connecticut and Hawaii.
But other states keep fighting to prevent their juvenile offenders from ever having the chance to see the light of day. Michigan now gives judges the “choice” of imposing a minimum sentence of 25 to 60 years instead of life without parole. Courts in other states have refused to apply the Supreme Court’s ruling retroactively, stranding many of the more than 2,000 inmates who were sentenced before the Miller decision.
The issue is not, as supporters of mandatory sentencing would have it, about going easy on criminals. No one is ordering judges to release inmates who are not rehabilitated, or who pose a threat to society. Rather, it is about giving legal meaning to the neurological, psychological and emotional vulnerabilities of young people. Those who make mistakes — even terrible ones — should not be sentenced to die in prison.
The myth of the superpredator helped spawn a generation of misguided laws that treated young people as adults, despite evidence that doing so actually increases recidivism. Most of these laws remain in effect. The Supreme Court has rightly begun to dismantle their constitutional foundations, but some states are determined to act as if it were always 1995.
Recent related post:
Prez Obama commutes 15-year sentence for marijuana offender down to 11.5 years
With apologies for the bad "Field of Dreams" reference, I am not sure how else to react to the news I have got via this press release while I am sitting in the audience excited to be at this amazing on-going NYU conference on "Mercy in the Criminal Justice System: Clemency and Post-Conviction Strategies" with the keynote speaker White House Counsel Kathryn Ruemmler. I was hoping and expecting the White House Counsel Kathryn Ruemmler would be making news via her afternoon keynote, but her boss beat her to the punch as the full text of the press release reveals:
Today, President Barack Obama granted clemency to the following individual:
• Ceasar Huerta Cantu, also known as Cesar Huerta Cantu – Katy, Texas
Offenses: Conspiracy to possess with intent to distribute marijuana; money laundering (Western District of Virginia)
Sentence: 180 months’ imprisonment (as amended), five years’ supervised release (May 11, 2006)
Commutation Grant: Prison sentence commuted to 138 months’ imprisonment
Thanks to the wonderful internet, I found this 2255 dismissal order concerning the Cantu case which suggests that Cantu received an erroneous initial sentence that he was unable to get changed via traditional legal means. But it is unclear from this order alone whether this sentence calculation error provides the basis and reason for this notable commutation. A quick read of the order does suggest that the reduction from 180 to 138 appears to reflect precisely the sentence Cesar Huerta Cantu would have and should have gotten (after getting substantial assistane credit) had his initial sentence been calculated properly.
Live-blogging UPDATE: In her keynote speech at this NYU conference, White House Counsel Kathryn Ruemmler is talking up this grant and says that it shows that clemency can serve as a "fail-safe" for correcting errors that cannot be corrected by other means.
WH Counsel Ruemmler has announced that DOJ via BOP is going to alert federal prisonsers about the on-going clemency initiative previously announced by Deputy AG Cole.
MSM UPDATE: Lots of press reports are now providing context for this grant such as this AP article headlined "Obama commutes sentence made longer by typo."
Notable comments by AG Holder about marijuana legalization in the states
This notable new Huffington Post article, headlined "Eric Holder 'Cautiously Optimistic' About Marijuana Legalization," reports on notable new interview with the AG discussing his latest view onf marijuana reform. Here are excertps:
Attorney General Eric Holder is "cautiously optimistic" about how things are going in Washington state and Colorado following the legalization and state regulation of marijuana. But the nation's top law enforcement official, who spoke to The Huffington Post in an interview on Friday, also said it was tough to predict where marijuana legalization will be in 10 years.
"I'm not just saying that, I think it's hard to tell," Holder said in a jury room at the federal courthouse in Charleston, which he visited as part of the Justice Department's Smart on Crime initiative. "I think there might have been a burst of feeling that what happened in Washington and Colorado was going to be soon replicated across the country. I'm not sure that is necessarily the case. I think a lot of states are going to be looking to see what happens in Washington, what happens in Colorado before those decisions are made in substantial parts of the country."
Under Holder, the Justice Department has allowed marijuana legalization to move forward in Washington and Colorado and has issued guidance to federal prosecutors that is intended to open up banking access for pot shops that are legal on the state level.
Based on the reports he has received out of Washington and Colorado, Holder also said he thinks things are going about how he'd expected them to go. "I think what people have to understand is that when we have those eight priorities that we have set out, it essentially means that the federal government is not going to be involved in the prosecution of small-time, possessory drug cases, but we never were," Holder said. "So I'm not sure that I see a huge change yet, we've tried to adapt to the situation in Colorado with regard to how money is kept and transacted and all that stuff, and try to open up the banking system."
"But I think, so far, I'm cautiously optimistic," Holder continued. "But as I indicated to both governors, we will be monitoring the progress of those efforts and if we conclude that they are not being done in an appropriate way, we reserve our rights to file lawsuits."
Holder's positive outlook on how legalization is going in Washington and Colorado stands in contrast to the views expressed by Drug Enforcement Administration head Michele Leonhart, who reportedly criticized President Barack Obama for comparing marijuana to alcohol. Leonhart claimed earlier this month that voters were mislead when they voted to legalize and regulate marijuana on the state level, that Mexican drug cartels are "setting up shop" in Washington and Colorado and that this country should have "never gone forward" with legalization. Another DEA official recently claimed that "every single parent out there" opposed marijuana legalization.
Washington and Colorado, of course, aren't the only places in the U.S. reforming their approach to marijuana. In March, Washington, D.C., decriminalized the possession of small amounts of marijuana. Asked about D.C.'s move, Holder said it didn't make sense to send people to jail on possession charges. "Well, I'll tell you, as a former judge, I had to put in jail substantial numbers of young people for possessory drug offenses, and it was not from the perspective I had as a judge necessarily a good use of law enforcement resources," Holder said. "When I became U.S. attorney we put in place certain guidelines so that people would not end up, especially young people, with criminal records and all that then implies for them."...
Holder also acknowledged the Obama administration has made the political decision not to unilaterally "reschedule" marijuana by taking it off the list of what the federal government considers the most dangerous drugs, though that is something the attorney general has the authority to do. Instead, Holder has said DOJ would be willing to work with Congress if they want to reschedule marijuana, which doesn't seem likely to happen in the near future.
"I think that given what we have done in dealing with the whole Smart on Crime initiative and the executive actions that we have taken, that when it comes to rescheduling, I think this is something that should come from Congress," Holder said. "We'd be willing to work with Congress if there is a desire on the part of Congress to think about rescheduling. But I think I'd want to hear, get a sense from them about where they'd like to be."
"Secret Drugs, Agonizing Deaths"
The title of this post is the headline of this New York Times op-ed published yesterday. Authored by Megan McCracken and Jennifer Moreno, here is how it starts:
Facing a critical shortage of lethal injection drugs, prison officials in a number of states have recently engaged in an unseemly scramble to obtain new execution drugs, often from unreliable and even illegal sources. Not only does this trend raise serious questions about the constitutionality of executions, it also undermines the foundations of our democratic process. In the name of security, states are now withholding vital information about their death penalty procedures — from death row prisoners’ lawyers and from judges, whose stamp of approval they need to impose the ultimate sanction, as well as from the public, in whose name the sentence is carried out.
States have long shielded the identities of executioners, a reasonable policy that should not interfere with judicial review of execution procedures. But in the past year, Georgia, Missouri, Tennessee and other states have expanded the reach of their secrecy laws to include not just the execution drugs used, but even the pharmacies that supply them.
These laws hide the information necessary to determine if the drugs will work as intended and cause death in a humane manner. For states to conceal how they obtain the execution drugs, whether those purchases comply with the law and whether the drugs themselves are legitimate prevents courts from analyzing the legality and constitutionality of death penalty procedures. And that deprives the public of informed debate.
April 14, 2014
Two notable circuit discussions of federal consequences of child porn production
I have just come across two notable circuit opinion dealing with the criminal and civil consequences child porn production. One was handed down late last week by the Fourth Circuit, US v. Cobler, No. 13-4170 (4th Cir. April 11, 2014) (available here), and it begins this way:
In this appeal, we consider the constitutionality and the reasonableness of a 120-year sentence imposed on a defendant convicted of production, possession, and transportation of child pornography, in connection with his sexual molestation of a four-year-old boy. The defendant argues that his lengthy prison sentence is disproportionate to his crimes, constituting cruel and unusual punishment under the Eighth Amendment, and that the sentence is greater than necessary to achieve legitimate sentencing goals. Upon our review, we reject the defendant’s constitutional challenge and conclude that the district court did not abuse its discretion in imposing a sentence designed to protect the public and to address the seriousness of the defendant’s crimes. Accordingly, we affirm.
The other opinion was handed down this morning by the Sixth Circuit, Prewett v. Weems, No. 12-6489 (6th Cir. April 14, 2014) (available here), and it begins this way:
Stanley Weems pleaded guilty to one count of producing child pornography. See 18 U.S.C. § 2251(a). His victim, J.W., filed this civil action against Weems to obtain compensation for the abuse. See id. § 2255(a). The district court awarded $1 million, a figure reached by multiplying the presumed-damages floor in the civil-remedies statute ($150,000) by the number of videos Weems produced (seven) and by capping the damages at the relief sought in J.W.’s complaint ($1 million). This accounting raises an interesting question: Does the civil-remedies statute set a presumptive floor of $150,000 for each criminal violation or a presumptive floor of $150,000 for each cause of action without regard to the number of alleged violations? As we see it, the text, structure and context of the statute, together with the structure of related civil-remedy laws, establish that the $150,000 figure creates a damages floor for a victim’s cause of action, not for each violation. We therefore reverse the district court’s contrary conclusion.
House Judiciary Chair suggests Smarter Sentencing Act still facing uphill battle on the Hill
CQ News has this important new article on federal sentencing reform developments in Congress under the headline "Goodlatte: Don't 'Jump to Conclusions' on Mandatory Minimums." Here are excerpts:
House Judiciary Chairman Robert W. Goodlatte, R-Va., is not convinced that Congress should scale back mandatory minimum drug sentences, even as the Obama administration and a bipartisan coalition in the Senate step up their efforts to do so. Goodlatte, speaking to reporters from CQ Roll Call and Politico during a pre-taped interview that aired Sunday on C-SPAN’s “Newsmakers” program, said the severity of drug sentences “is a legitimate issue for us to be examining.”
He noted that his committee has set up a task force to review mandatory minimum sentences and many other aspects of the federal criminal code, and he did not rule out taking up a bipartisan, administration-backed Senate proposal (S 1410) that would reduce some minimum drug penalties by as much as 60 percent. The Senate could take up the proposal in the coming weeks after the Judiciary Committee approved it 13-5 in March.
Despite signaling his willingness to consider sentencing changes, Goodlatte said, “I want to caution that we shouldn’t jump to conclusions about what is right and what is wrong with the law yet.” Asked whether he believes that some federal prisoners are facing dramatically long sentences for relatively minor drug crimes — a claim frequently made by supporters of an overhaul — Goodlatte expressed skepticism.
“If you’re talking about 25- or 30-year sentences, you’re talking about something that the judge and the jury found appropriate to do above mandatory minimum sentences, because those are five-year and 10-year sentences,” he said. Regarding the mandatory minimum sentences themselves, he said, “you’ll find that the quantities of drugs that have to be involved are very, very large.”
In the case of marijuana possession, for example, it takes “hundreds” of pounds of the drug to trigger a five-year mandatory minimum penalty and “thousands” of pounds to trigger a 10-year mandatory minimum penalty, Goodlatte said. “With other drugs that are very potent in much, much smaller doses, those quantities are much, much lower,” he said. “But if you look at it from the standpoint of what someone has to be engaged in dealing, you’re talking about large quantities before you get those minimums.”
The Senate bill, which is supported by conservatives including Ted Cruz, R-Texas, Mike Lee, R-Utah, and Rand Paul, R-Ky., would reduce 10-year minimum sentences for certain drug crimes to five years, while reducing five-year minimum sentences for other drug crimes to two years. If those drug crimes result in “death or serious bodily injury,” mandatory minimum penalties would be slashed from their current 20 years to 10 years. In all of the penalties being reconsidered, mandatory sentences are triggered based on the quantity of drugs involved in a particular crime....
Molly Gill, government affairs counsel for the advocacy group Families Against Mandatory Minimums, said in an e-mail that the quantity of drugs involved in a crime is “bad proxy for culpability” and suggested that it should not be used as the basis to defeat proposed changes to fixed drug sentences....
She noted that the independent U.S. Sentencing Commission, which sets advisory sentencing guidelines for the federal judiciary, found in a 2011 study that “the quantity of drugs involved in an offense is not closely related to the offender’s function in the offense.” So-called “drug mules,” for example, physically transport large quantities of narcotics for others but are not themselves major traffickers or kingpins, Gill said.
Even as Goodlatte showed skepticism about lowering mandatory drug sentences, Attorney General Eric H. Holder Jr. kept up his call for Congress to take action on the Senate proposal, known as the Smarter Sentencing Act.
After the Sentencing Commission approved its own changes in drug sentencing guidelines last week — a move that is expected to reduce some drug offenders’ penalties by an estimated 11 months — Holder urged Congress to follow up with more sweeping, statutory changes. “It is now time for Congress to pick up the baton and advance legislation that would take further steps to reduce our overburdened prison system,” he said in a statement. “Proposals like the bipartisan Smarter Sentencing Act would enhance the fairness of our criminal justice system while empowering law enforcement to focus limited resources on the most serious threats to public safety.”
The full video of the interview with Rep. Goodlatte is available at this C-Span archive, and sentencing fans will want to cue the video up to a little after the 10 minute mark. Not long after that point, there is a discussion of federal marijuana policies and then the interview turn to drug sentencing generally. A review of the whole segment makes me a bit less pessimistic about the possibilities of federal sentencing reform making it through the House of Representatives. But being a bit less pessimistic is hardly being optimistic.
Some prior posts about federal prosecutorial perspectives on sentencing reform:
- Forecasting the uncertain present and future of federal legislative sentencing reform
- "Some prosecutors fighting effort to eliminate mandatory minimum prison sentences"
- "Law Enforcement Lobby Quietly Tries To Kill Sentencing Reform"
- Effective Heritage analysis of federal MMs and statutory reform proposals
- Are we "headed for a crime-riddled future" without mandatory minimums?
- "Prosecutors Wrong to Oppose Sentencing Reform"
- "With Holder In The Lead, Sentencing Reform Gains Momentum"
- "Holder and Republicans Unite to Soften Sentencing Laws"
- Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote
- Are "hundreds of career prosecutors" (or mainly just Bill Otis) now in "open revolt" over AG Holder's support for the Smarter Sentencing Act?
- Very eager to provide very thorough and fair coverage of prosecutors' views on Smarter Sentencing Act
Would embrace of "judicial corporal punishment" help remedy mass incarceration?
The question in the title of this post is prompted by this provocative new commentary by John Dewar Gleissner and given the headline "Who is biased against prison and sentencing reform?". Here are excerpts:
Private prison companies and the guards’ labor unions are biased, of course. Politicians do not wish to appear soft on crime. Some communities need the jobs prisons provide. The public is biased about crime generally, and believes crime rates are going up when they are actually declining. Many want prison to be horrible. Who can blame crime victims? Taxpayers dislike money going to prisons. Law-abiding people do not have much in common with prisoners. Businesses don’t sell much to prisoners. Prison industries lose money and cannot succeed with government control.
The media prefer sensational stories about egregious criminal behavior. Once the offender is sentenced, the story usually ends. Prisoners do not have access to the internet.
Incarceration is hidden from the eyes of the people, harmful to the morals of prisoners and expensive. Cultural, generational and religious bias prevent us from crediting our ancestors or other countries with effective crime-control techniques....
Attacking the supply of illegal drugs did not work. The costs of fully supporting 2.3 million inactive welfare recipients, America’s prisoners, finally caught our attention. The Constitution is the standard in conditions of confinement litigation. But when the Constitution was adopted, massive incarceration as we now know it did not exist. Back then, judicial corporal punishment was constitutional; it was approved of or used by all the presidents carved into Mt. Rushmore.
Incarceration is all Western civilization has known for several generations. As the death penalty declines, most of us think of prison as the nearly exclusive serious punishment method. Criminal justice systems focus on the single, inflexible, expensive and inexorable dimension of time. Most Americans are shocked by the idea of judicial corporal punishment, which is invariably depicted as cruel, perverted or unjust in movies and TV.
Science proves that rehabilitation, restitution and deterrence are not often achieved by lengthy incarceration. But some violent offenders deserve their long prison sentences. Prisons will not be abolished. Real bad folks need to stay behind bars.
We think society moves forward. Reformers are supposed to be “forward-looking.” Belief in continual social progress ignores history. Society periodically degenerates into barbarism, disorganization, bankruptcy, genocide, war and revolution. Scientific study of changed values sometimes takes decades before conclusions are reached and legislation enacted. Our belief in social progress is accompanied by rejection of biblical principles in favor of unproven secular values.
We do not often enough look in the Bible for answers. If we did, the relatively simple solution to ending massive incarceration would be obvious: Deuteronomy 25:1-3. We could cut the American prison population in half. Modern behavioral and neurological science can and would confirm the superior effectiveness of traditional judicial corporal punishment. Believe it or not, judicial corporal punishment was largely abolished in the U.S. because it was too effective.
Judicial corporal punishment is in public, less expensive, much faster and repeatable. Its last use in the United States was to punish wife-beating without diminishing family income. In The Collapse of American Criminal Justice, Harvard law professor William J. Stuntz wrote, “Today's would-be reformers would do well to … consider the possibility that the best models for productive change may not come from contemporary legislation or court decisions, but from a past that has largely disappeared from our consciousness. Sometimes, the best road forward faces back.”
April 13, 2014
"Vacancy in Justice: Analyzing the Impact of Overburdened Judges on Sentencing Decisions"
The title of this post is the title of this intriguing empirical paper I just noticed on SSRN. Authored by Jason Best and Lydia Brashear Tiede, here is the abstract:
Vacancies are one of the greatest challenges facing the federal judiciary and they persist due to the politics of the confirmation process. Despite concerns as to the adverse consequences of judicial vacancies, research about their effects has remained elusive due to the difficulties of specifying the causal mechanism between vacancies and judicial decision-making.
Using an innovative instrumental variables approach to analyze the effect of vacancies on federal district court judges’ criminal sentencing decisions, we show that judges who are overburdened due to vacancies use shortcuts which affect the severity of punishment. Further, how the vacancy was created has differential effects on case outcomes. Vacancies created by district judges’ assumption of senior status have minimal effects on punishment, while vacancies created by all other methods result in harsher penalties. The results suggest that policymakers should prioritize filling vacancies based on the manner in which they are created.
Is SCOTUS now no longer all that interested in criminal justice issues?
The question in the title of this post is prompted by this chart concerning the make-up of the Supreme Court's merits docket this Term from the latest Stat Pack put together by the folks at SCOUTSblog. The chart highlights that nearly 75% of the merits docket this Term involves civil cases. In addition, this SCOTUSblog list of cert grants for October 2014 reveals that only one of nine grants for the next Term involves a criminal law issue (and that issue, as noted here, seems stunningly minor).
When Justices Alito and Sotomayor first joined the Court, it seemed as though they brought some extra interest and extra attention to the criminal justice part of the SCOTUS docket. But of late it seems as though the Court is more eager to avoid rather than take up some important criminal justice matters.
Notably, there are any number of big lurking criminal justice issues relating to the Second (right to carry), Fourth (GPS tracking), Sixth (applications of Apprendi and Booker) and Eighth Amendments (applications of Graham and Miller). I have an inkling that some of these matters will end up on the October 2014 docket, but this post perhaps highlights that I have a hankering for some more major criminal cases to be on the docket.
Another notable (and astute?) local shaming sentence for elderly bully
As reported in this AP piece, "Ohio Judge Sentences Man To Wear 'I AM A BULLY' Sign," another notable sentence involving shaming has made national news this weekend. Here are the details:
A man accused of harassing a neighbor and her disabled children for the past 15 years sat at a street corner Sunday morning with a sign declaring he's a bully, a requirement of his sentence.
Municipal Court Judge Gayle Williams-Byers ordered 62-year-old Edmond Aviv to display the sign for five hours Sunday. It says: "I AM A BULLY! I pick on children that are disabled, and I am intolerant of those that are different from myself. My actions do not reflect an appreciation for the diverse South Euclid community that I live in."...
Aviv arrived at the corner just before 9 a.m., placing the hand-lettered cardboard sign next to him as he sat in a chair. Within a couple of minutes, a passing motorist honked a car horn. Court records show Aviv pleaded no contest in February to a misdemeanor disorderly conduct charge. His attorney didn't return a telephone call for comment.
Aviv has feuded with his neighbor Sandra Prugh for the past 15 years, court records show. The most recent case stemmed from Aviv being annoyed at the smell coming from Prugh's dryer vent when she did laundry, according to court records. In retaliation, Aviv hooked up kerosene to a fan, which blew the smell onto Pugh's property, the records said.
Prugh has two adult adopted children with developmental disabilities, cerebral palsy and epilepsy; a husband with dementia, and a paralyzed son. Prugh said in a letter to the court that Aviv had called her an ethnic slur while she was holding her adopted black children, spit on her several times, regularly threw dog feces on her son's car windshield, and once smeared feces on a wheelchair ramp. "I am very concerned for the safety of our family," Prugh wrote in a letter to the court for Aviv's sentencing. She said she just wants to live in peace.
The judge also ordered Aviv to serve 15 days in jail and to undergo anger management classes and counseling. He also had to submit an apology letter to Prugh. "I want to express my sincere apology for acting irrationally towards your house and the safety of your children," Aviv wrote. "I understand my actions could have caused harm but at that time I was not really thinking about it."
Regular readers know that I tend to be a supporter of shaming sentences as an alternative to prison terms in appropriate cases. And this case seem like just the kind of matter in which a little public shaming, as opposed to an extended jail term, seems to have a reasonable chance of being an effective deterrent and a less cost to Ohio taxpayers.