July 5, 2014
"The Double Edged Sword of Prison Video Visitation: Claiming to Keep Families Together While Furthering the Aims of the Prison Industrial Complex"
The title of this post is the title of this notable article by Patrice A. Fulcher now available via SSRN. Here is the abstract:
Each year, the United States (“U.S.”) spends billions to house the country’s massive prison population. The need to board over 2.3 million incarcerated human beings has U.S. correctional departments looking for ways to increase revenues and offset costs. According to these correctional agencies, one major expense is prison visitation. In order to reduce spending and alleviate safety concerns, U.S. federal, state, and private correctional facilities have turned to video visitation as an alternative to in-person visits.
The use of prison video visitation systems started in 1995. Since then, many private telecommunications companies have professed to have the solution to correctional visitation problems. These companies promote video visitation as a cheap, safe, and easy alternative to in-person visits, as well as a profitable means of generating revenues. Government and private correctional institutions, buying into these endorsements, have reduced or completely eliminated face-to-face visits and installed video visitation systems within their walls. Under this structure, inmates use video stations in their cellblock to visit family and friends at corresponding video kiosks within the institution; or inmates visit loved-ones who are at home or elsewhere outside prison walls via computer Internet video visitation.
In order to sell this method of visitation to the public, U.S. correctional agencies contend that video visitation helps to keep families together by allowing inmates greater contact opportunities with loved ones. In some regards, it may be argued that video visitation does assist in the preservation of family units. Inmates are often forced to serve time in prisons miles away from their homes, so outside visits are far and few between. Yet, through the use of in-home video visitation configurations, inmates are able to connect with relatives who reside hours away.
At first glance, this visitation scheme may seem beneficial, but this Article argues that prison video visitation is a double edge sword. First, prison video visitation may help preserve family units while people are incarcerated, but the elimination of face-to-face visits robs inmates of much needed human contact with their children, spouses, and other family members. Second, almost all in-home prison video visitation systems exploit the relatives and friends of inmates because they charge excessive fees to visit. Third, the economic success of prison video visitation systems is contingent on the number of incarcerated humans. So, like other profiteering schemes of the Prison Industrial Complex (“PIC”), prison video visitation incentivizes incarceration: A decrease in the prison population has a corollary effect on million dollar revenues and corporate profits, hence compelling the need to detain more U.S. inhabitants.
Consequently, this Article argues that face-to-face visitation should be the primary means of contact for families that visit at prison facilities. In order to accomplish this goal, inmates must be assigned to correctional facilities close to their homes if space is available and there is no proven risk to security. Additionally, if prison video visitation is utilized, any fees associated with its use must be regulated to insure that the financial expense is not exorbitant.
High-profile ex-con (who is also an ex-Gov) eager to keep pushing for death penalty abolition
As reported in this AP article, headlined "Ex-Illinois governor Ryan wants to continue anti-death penalty work," the death penalty abolitionist community now has another high-profile advocate newly free to preach the gospel. Here are some excerpts from an interesting article:
George Ryan, an ex-Illinois governor and now an ex-convict, says he’d like to re-engage with the cause he left behind when he went to prison in 2007 — campaigning for the end of the death penalty in the U.S. “Americans should come to their senses,” Ryan said this week, in an hourlong interview at his kitchen table.
Newly free to speak after a year of federal supervision that followed his more than five years in prison for corruption, Ryan appeared to have recovered some of his old voice and feistiness, in contrast to the subdued figure that emerged a year ago from the federal penitentiary in Terre Haute, Ind., and ducked briefly into a Chicago halfway house.
At his home in Kankakee, south of Chicago, the Republican, 80, held forth on capital punishment, the state of American politics and the criminal justice system — though not the difficult details of his own corruption case.
He said he’d like to spend some time on the national circuit to encourage other states to follow Illinois’ lead in abolishing capital punishment. That move came in 2011 and stemmed from Ryan’s decision to clear death row in 2003. While he was treated as a champion by death penalty opponents at the time, he acknowledged some public figures now may have trouble openly associating with him. “I’m an ex-convict,” he said. “People tend to frown on that.”
Ryan, who was governor from 1999 to 2003, was indicted in 2003 and convicted in 2006 on multiple corruption counts, including racketeering and tax fraud. He said he does not plan to discuss the details of the criminal case — to which he always maintained his innocence — though he might in an autobiography he is writing....
He also lashed out at the U.S. justice system, calling it “corrupt” and bluntly contending that the fervor with which he was prosecuted was due in part to his nationally prominent campaign to end the death penalty. “It put a target on my back when I did what I did,” he said, adding that even prison guards derided and mocked him. “It certainly didn’t win me any favor with the federal authorities.”
It’s unclear whether Ryan’s re-emergence on the public scene will be welcomed. But at least one former federal prosecutor balked at Ryan’s contention that he may have been singled out because of his death penalty stance. “It’s absurd,” said Jeff Cramer, a former U.S. attorney in Chicago, noting that four of Illinois’ last seven governors have gone to prison. “It wasn’t his political stand that made him a target. It is what he did. ... He’s trying to rewrite history.”...
[Ryan] also expressed some sympathy for his Democratic successor, Rod Blagojevich, saying the 14-year prison sentence the former governor is serving in Colorado for trying to sell President Barack Obama’s old Senate seat and other pay-to-play schemes was excessive. The sentence is under appeal. “I wasn’t a fan” of Blagojevich, he said. “Irrespective, his sentence was out of line.”
But Ryan displayed the most passion while discussing capital punishment. Once a fervent advocate of the death penalty, he said he agonized about approving the last execution in Illinois before he issued a ban in 2000. “I killed the guy,” he said of the man who had raped, kidnapped and murdered a 21-year-old Elmhurst woman. “You can’t feel good about that.”
As he contemplated commuting all death sentences in 2003, he said he felt increasing pressure not to do it, including from one influential politician whom he remembers asking him directly not to spare one man convicted of murdering a friend’s daughter. After the commutations, Ryan said the politician never spoke to him again.
July 4, 2014
Another July 4th open thread seeking comments on liberty and freedom in the USA
Blogging is likely to be light this holiday weekend as I am on the road visiting family. But, as I has happened before, the morning of July 4 makes me eager to highlight some prior Independence Day blogging and to urge readers to use this space to comment on the state of liberty and freedom in the United States.
Some prior July 4 posts:
- 2013: "Judges refuse to delay order to release 9,600 California inmates"
- 2012: Judge down under laments mandatory 20 years (with parole) for brutal contract killer
- 2011: An Independence Day open thread seeking comments on liberty and freedom in the US
- 2010: Celebrating our declaration of rights to "Life, Liberty and the pursuit of Happiness"
- 2009: What to the American imprisoned is the Fourth of July?
- 2008: Celebrating liberty in the country leading the world in incarceration rates
- 2007: House hearing planned to examine Bush commutation
- 2006: A holiday retrospective on Blakely fireworks
- 2005: Celebrating liberty, Blakely-style
Obviously, the last couple of years I have not done special July-4th themed posts, but I sometimes think all of my posts on crime and punishment are infused with inherent Americana.
July 3, 2014
"6 Months Later, Legalizing Weed In Colorado Is A Huge Success"
The title of this post is the headline chosen by Business Insider for this Reuters mid-year update on marijuana reform in Colorado. Here is an excerpt:
Six months on, Colorado's marijuana shops are mushrooming, with support from local consumers, weed tourists and federal government taking a wait-and-see attitude. Tax dollars are pouring in, crime is down in Denver, and few of the early concerns about social breakdown have materialized - at least so far.
"The sky hasn't fallen, but we're a long way from knowing the unintended consequences," said Andrew Freeman, director of marijuana coordination for Colorado. "This is a huge social and economic question."
Denver, dubbed the "Mile High" city, now has about 340 recreational and medicinal pot shops. They tout the relaxing, powerful or introspective attributes of the crystal-encased buds with names like Jilly Bean, Sour Diesel and Silverback Kush. In the first four months, marijuana sales amounted to more than $202 million, about a third of them recreational. Taxes from recreational sales were almost $11 million.
Despite some critics' fears of a pot-driven crime explosion, Denver police say burglaries and robberies were down by between 4 and 5 percent in the first four months of the year. On the down side, sheriff's deputies in neighboring Nebraska say pot seizures near the Colorado border have shot up 400 percent in three years, while Wyoming and New Mexico report no significant increases.
In May, controls on marijuana edibles were tightened after two people died. In one case, a college student jumped from a hotel balcony after eating six times the suggested maximum amount of pot-laced cookies. In the other, a Denver man was charged with shooting dead his wife after apparently getting high from eating marijuana-infused candy.
As Colorado passes the six-month mark, Washington state is approaching with some trepidation the launch next week of the nation's second recreational pot market.
Hawaii legislatively eliminates all juve LWOP sentences for all crimes
As reported in this AP piece, headlined "Hawaii ends juvenile life sentences without parole," a new piece of legislation means and and all "life sentences without parole for minors are now abolished in Hawaii." Here are the basics:
Gov. Neil Abercrombie signed a bill Wednesday recognizing that children convicted of first-degree murder should be treated differently than murderous adults.
Advocates say children are impressionable and sometimes can't get out of horrific, crime-ridden environments. Honolulu prosecutors argued the measure isn't fair to people who are born weeks apart from slightly younger perpetrators of the same crime.
July 3, 2014 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0) | TrackBack
Fascinating suggestion of "Mitt Romney for drug czar"
The always brilliant and provocative lawprof Mark Osler has this brilliant and provocative new commentary in the Detroit News headlined "Mitt Romney for drug czar." Here is how it starts:
In a series of public appearances, Detroit native Mitt Romney has planted the idea that he might run for president again in 2016. He should resist the idea; that day has passed.
Instead, Romney should apply his experience and passion to public service in a different way: The Mitt Romney who founded Bain Capital and saved the Utah Winter Olympics should be Drug Czar, and use his financial acumen to destroy the narcotics trade without mass incarceration.
In the run-up to the 2012 presidential election, Mitt Romney was celebrated (by Republicans) and eviscerated (by Democrats) for his vocation: building up and tearing down businesses. Regardless of how one views the social utility of this enterprise, no one can dispute that Romney is a smart, passionate, well-educated man who loves public service and was very good at what he did while working for Bain Capital.
Romney’s availability matches up with a special moment for narcotics policy. There is a broad right-left consensus that the stale tactics of the war on drugs failed miserably. It wasted billions of dollars in taxpayer money while failing to limit drug use. Meanwhile, millions of Americans went to prison, and a disproportionate number of them were black thanks to harsh new laws focused on crack cocaine. There was something to offend everyone.
I like this idea sooooo much, I really wonder if it could possibly get any legs inside the Beltway. On all modern drug crime and punishment issues — ranging from marijuana reform in the states to the surge of addiction to opiods and heroin to the reduction of federal drug sentences — the country really needs to widely respected "numbers guy" who could bring a clear-headed business perspective to analyzing the pros and cons of various suggested policy initiatives. I would trust Mitt Romney to be that guy as much, if not more, than just about anyone else President Obama might place in this role.
July 2, 2014
Another round-up of recent posts of note from Marijuana Law, Policy & Reform
The official start of summer does not slow down the array of marijuana developments in states and elsewhere, and here is a collection of recent notable posts from Marijuana Law, Policy and Reform:
An (overly?) optimistic account of how GPS technology could "solve" mass incarceration
This recent article from Vox, headlined "Prisons are terrible, and there’s finally a way to get rid of them," praises and promotes efforts to use GPS tracking to reduce US reliance on incarceration. The article strikes me as a bit too optimistic, but it does assembled some research that may justify such optimism. Here is a snippet from the start of the article that highlights its themes:
So why do prisons exist? In theory, because we need them. They keep bad guys off the street. They give people a reason to not commit crimes. They provide a place where violent or otherwise threatening people can be rehabilitated.
But prisons aren't the only way to accomplish those goals. Technological advancements are, some observers say, making it possible to replace the current system of large-scale imprisonment, in large part, with alternatives that are not as expensive, inhumane, or socially destructive, and which at the same time do a better job of controlling crime. The most promising of these alternatives fits on an ankle.
While the idea of house arrest has been around for millennia, it has always suffered from one key defect as a crime control tool: you can escape. Sure, you could place guards on the homes where prisoners are staying, but it's much easier to secure a prison with a large guard staff than it is a thousand different houses with a guard or two apiece.
Today, we have something better than guards: satellites. The advent of GPS location tracking means it's now possible for authorities to be alerted the second a confinee leaves their home. That not just enables swift response in the event of escape; it deters escape by making clear to detainees that they won't get away with it.
"Into the Breach: The Case for Robust Noncapital Proportionality Review Under State Constitutions"
The title of this post is the title of this notable piece authored by Samuel Weiss now available via SSRN. Here is the abstract:
The Eighth Amendment forbids cruel and unusual punishments. The Supreme Court has found in the Amendment a guarantee that punishment be proportionate to the crime. Although the requirement technically applies equally to all punishment, in practice the Court has used the guarantee strictly to regulate capital punishment — a practice it recently extended to life without parole sentences for juveniles — but has abdicated almost entirely on noncapital sentences.
States have authority to regulate excessive punishment under their state constitutions, but most have chosen to interpret their state proportionality clauses in lockstep with the Eighth Amendment. Even the states that have found greater protection in their constitutions have done so cautiously, striking down only the rare sentence so absurd that the legislature could not possibly have intended the result.
This Note suggests that states should aggressively police the proportionality of noncapital sentences under their state constitutions. Part I discusses extant noncapital proportionality, both the United States Supreme Court’s Eighth Amendment doctrine and states’ responses to either heighten standards of review or to march in lockstep with the Court. Part II discusses the primary basis for state courts’ failure to regulate proportionality — that regulating sentences would be intervening into legislative judgment of retributive fit — and its deep flaws. State courts ignore that criminal codes bear little relation to actual crime and punishment — criminal liability is so broad and sentences so punitive that legislatures have essentially delegated decisions on criminality and sentence length to prosecutors. Prosecutors, in turn, routinely deliver disproportionate sentences because prosecutors are local political actors who push the actual costs of incarceration onto state governments; because the public pushes for ever-harsher sentences; and because prosecutors deliver trial penalties to defendants who refuse to plead guilty. Much of the Supreme Court’s cautiousness comes from its broader fear about intervention in state criminal justice systems; this fear is legitimate but should carry no weight with state courts, which are part of state criminal justice systems. Part III addresses the remaining arguments against aggressive state proportionality review — that states should interpret their parallel provisions in the same manner as the federal provision and that judges are institutionally incompetent to make decisions about comparative blameworthiness. The Note concludes that states should use their constitutions to pursue aggressive noncapital proportionality review.
July 1, 2014
Detailing a notable capital punishment surge in the Sunshine State
This lengthy recent Gainesville Sun article, headlined "Gov. Scott stands strong on death penalty," provides a detailed report on the recent state of capital punishment in the state of Florida. Here are excerpts:
Gov. Rick Scott in 2010 ran on a platform of creating more jobs and reviving Florida's economy. How well he accomplished that will be at the center of the debate of his re-election this fall. But Scott has already cemented one legacy that won't be debated and he did not even contemplate in his initial bid for public office four years.
Scott has presided over 18 executions, including 13 in the last two years, the most executions carried out by any Florida governor in a single term since the death penalty was reinstated in the 1970s....
Shortly before the June 18 execution of John Henry, a Pasco County man who stabbed his wife and stepson to death in 1985, Scott described the death penalty as “a solemn duty of the governor.”
“It's not something I thought about when I was going to run,” Scott said. “But I uphold the laws of the land. When I think about the executions I think about the families, the stories of what happened to these individuals. I think about them.”...
Florida continues to outpace most other states in carrying out the death penalty and may even reach parity — if only briefly — with Texas, which has long been the national death penalty leader. On July 10, Florida is scheduled to execute Eddie Wayne Davis for the kidnapping, rape and murder of an 11-year-old girl in Polk County. It would be the seventh execution carried out this year and put Florida in the unusual position of having the same number of executions as Texas.
Texas is likely to exceed Florida by the year's end, with another five executions already scheduled. And last year, Texas executed 16 prisoners compared to Florida's seven. But Florida's relative parity with Texas signals that the state continues to embrace the death penalty despite a national trend away from its use. Florida and Texas are among only six states this year that have executed prisoners.
Other signs that Florida is aggressively using the death penalty include:
• Florida annually condemns more prisoners to Death Row than nearly every other state. In 2013, Florida sentenced 14 prisoners to death, exceeding Texas' nine death sentences. Only California, with 24 death sentences, had more, although California has not had an execution since 2006.
• In 2012, Florida sent 20 prisoners to Death Row, nearly reaching the combined total of 22 death sentences in Texas and California, two larger states.
• Florida has the second largest Death Row in the country, with 396 prisoners....
But don't expect capital punishment to become an issue in this year's governor's race. Scott's likely opponent, former Gov. Charlie Crist's tough-on-crime stance once earned him the nickname “Chain Gang Charlie.” The state's apparent tolerance to capital punishment is reflected in few protests and little media coverage surrounding executions.
In addition, Scott's actions are line with state lawmakers who overwhelmingly support the death penalty. “Gov. Scott has taken his responsibility to sign death warrants very seriously and I commend him for that,” said House Criminal Justice Chairman Matt Gaetz, R-Fort Walton Beach.
Gaetz said Florida “is a death penalty state for a good reason," pointing to a 42-year low in the crime rate as well as one-third reduction in violent crimes in the last six years. “Something we're doing must be working and I don't think Floridians are too up for wholesale changes to a criminal justice system that has dramatically reduced the crime rate,” Gaetz said.
Gaetz and other lawmakers bolstered Florida's support for the death penalty last year when they passed the Timely Justice Act. Among other provisions it requires the Supreme Court to notify the governor when Death Row prisoners have exhausted their initial state and federal appeals.
Significant (but unpublished!?!) Sixth Circuit ruling finding Lafler prejudice despite defendant's claims of innocence
The Sixth Circuit just released an interesting and important ruling in Sawaf v. US, No. 13-5620 (6th Cir. June 30, 2014) (available here), which grants a white-collar defendant relief based on ineffective assistance of counsel at plea-bargaining based in part on the Supreme Court's recent Sixth Amendment jurisprudence in this area. Here are passages from the Sawaf opinion, which in part highlight why I think this ruling is significant (despite being "unpublished"):
In 2001, Dr. Sawaf, a medical doctor specializing in the practice of urology, was charged with multiple counts of unlawful drug distribution for prescribing narcotic pain medications without a legitimate medical purpose, in violation of 21 U.S.C. § 841(a)(1). It is undisputed that, prior to trial, the Government offered Sawaf a plea bargain that would have resulted in a significantly reduced prison sentence of 41 months instead of the 235-293 month term of imprisonment he would likely receive under the applicable U.S. Sentencing Guidelines if convicted at trial. Upon the advice of his attorney, Sawaf rejected the Government’s plea offer and proceeded to trial, unsuccessfully, where he was convicted and ultimately received a prison sentence of 240 months....
After a careful review of the evidence, the district court found that Sawaf’s attorney had indeed failed to advise him about the applicable sentencing guidelines at any time prior to his trial, resulting in “objectively unreasonable and constitutionally ineffective” assistance of counsel at the pre-trial stage of the proceedings....
Although the district court acknowledged the general presumption of prejudice “created by the significant disparity between the plea offered and the ultimate sentence” that Sawaf received, it nonetheless concluded that Sawaf was not entitled to relief because he had failed to show that he would have accepted the Government’s plea offer but-for his counsel’s ineffectiveness.... [T]he district court determined that Sawaf’s claim that he would have entered a guilty plea if adequately informed was not credible, given Sawaf’s continued insistence that he was innocent, prior to and during the trial, after the trial, and even during the evidentiary hearing, and effectively declined to credit Sawaf with the applicable presumption of prejudice."...
Given Sawaf’s unrelenting insistence as to his innocence, the district court was understandably reluctant to credit Sawaf’s self-serving claim at the evidentiary hearing that he would have pleaded guilty under different circumstances. As the district court emphasized in its opinion, Sawaf’s continued declarations of innocence at the evidentiary hearing undermined the plausibility of his assertion that he would nonetheless have pleaded guilty if he had been properly informed as to the possible consequences of proceeding to trial. On the other hand, to conclude that this information would have had no impact on Sawaf’s decision-making process would undercut the very reasoning for the Supreme Court’s recognition that the Sixth Amendment right to counsel during the plea-bargaining process includes the right to be informed by counsel as to the range of penalties under the applicable guidelines. Lafler, 132 S. Ct. at 1384.... After all, the existence of that right is necessarily rooted, at least in part, in our general understanding that the discrepancy between the punishment resulting from a plea agreement and that which would result from a trial conviction is an important factor that the defendant is entitled to consider in his decision-making process.
More importantly, however, we have consistently declined to conclude that a defendant’s “repeated declarations of innocence” alone preclude the possibility that the defendant would have entered a guilty plea if he had been aware of the consequences of proceeding to trial.... In light of these cases, we are compelled to conclude that Sawaf’s continued insistence as to his innocence does not foreclose the possibility that he would have been willing to enter a guilty plea in exchange for a 41-month sentence, despite his proclaimed innocence, if he had known about the risk that he might otherwise receive a 20-year sentence. Put simply, Sawaf’s claim that he is innocent does not conclusively establish that there is no “reasonable probability” that his decision would have been different if he had been adequately informed about its consequences.
I am eager to praise the Sixth Circuit for this notable application of Lafler and its unwillingness to sting the defendant here yet again for maintaining his innocence. But I am also a bit annoyed that this seemingly significant ruling is being left unpublished. Fortunately, in this digital age, even unpublished opinions can be found and heralded, and I am grateful to a helpful reader who made sure I did not miss this one.
June 30, 2014
Ninth Circuit sorts out federal case of CJA payment delayed, then CJA representation denied
It is often said that justice delayed is justice denied. An interesting ruling today from the Ninth Circuit in US V. Tillman, No. 13-10131 (9th Cir. June 30, 2014) (available here), work through what happens when Criminal Justice Act payment is delayed and that leads to CJA representation being denied. Here is the start of the panel opinion in Tillman, which ends up being more about the actions and standing of Tillman's CJA-appointed lawyer rather than the criminal defendant:
This case highlights the tension between judicial efforts to control costs of appointed counsel, the defendant’s constitutional right to have counsel appointed, counsel’s reliance on timely payment of Criminal Justice Act (“CJA”) vouchers, and the delays often present in processing vouchers for payment. In this unusual interlocutory appeal, John R. Grele and his former client, Markette Tillman, appeal an order removing Grele as counsel, sanctioning him, and referring him to the California State bar for disciplinary proceedings. Under Flanagan v. United States, 465 U.S. 259 (1984), we lack jurisdiction over Tillman’s claim that counsel was improperly removed. The removal order is nonfinal and not immediately appealable; Tillman has the opportunity to raise this issue on direct appeal, if there is one. Grele’s petition as to the sanctions order presents a different question, however, because the improper sanctions order not only had an immediate impact on Grele but continues to affect his professional reputation as learned counsel in capital proceedings. We conclude that mandamus jurisdiction is appropriate to consider the sanctions order, that the district court erred in imposing sanctions without notice and a hearing, and that the order should be vacated.
Could part of Hobby Lobby "havoc" include new RFRA challenges to federal drug laws and their regulatory enforcement?
I am not an expert on religious freedom doctrines or on interpretations of Religious Freedom Restoration Act of 1993 (RFRA). But my cursory understanding of the basics of the Supreme Court's big ruling today in Burwell v. Hobby Lobby Stores, Inc., No. 13-354 (S. Ct. June 30, 2014) (available here) is that SCOTUS has now given RFRA a (much?) broader reach and interpretation than the First Amendment's Free Exercise Clause and has concluded that a corporation must have its sincere religious objections to a health-care regulation better accommodated for that regulation to comply wit RFRA. Not surprisingly, the Justices in dissent express concern about this ruling, and I especially was struck by these passages from the start of Justice Ginsburg's dissent:
In a decision of startling breadth, the Court holds that commercial enterprises, including corporations, along with partnerships and sole proprietorships, can opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs. See ante, at 16–49. Compelling governmental interests in uniform compliance with the law, and disadvantages that religion-based opt-outs impose on others, hold no sway, the Court decides, at least when there is a “less restrictive alternative.”....
In the Court’s view, RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on third parties who do not share the corporation owners’ religious faith.... Persuaded that Congress enacted RFRA to serve a far less radical purpose, and mindful of the havoc the Court’s judgment can introduce, I dissent.
Legal scholars and pundits will no doubt be picking apart the Hobby Lobby ruling with a view toward its political, policy and practical impact with respect to any number of federal civil laws. But, as the question in the title of this post suggests, I am already wondering if the Hobby Lobby ruling could end up having an impact on federal criminal laws, in particular drug laws.
Notably, in his Hobby Lobby concurrence, Justice Kennedy highlights that the "American community is today ... a rich mosaic of religious faiths," and says religious freedom must be understood to mean "the right to express [religious] beliefs and to establish one’s religious (or nonreligious) self-definition in the political, civic, and economic life of our larger community." I am pretty sure there are more than a few religious groups (some well-established, other not-so-much) that sincerely claim that certain types of drug use plays a role in their members' "self-definition in the political, civic, and economic life of our larger community." In the wake of Hobby Lobby's ruling that sincere religious beliefs now thanks to RFRA justify an opt-out from general laws, I wonder if more folks might have more opportunities to press claims in federal court that their religious beliefs must allow opt outs from federal criminal drug laws.
June 29, 2014
Two new examinations of white-collar prosecutions and punishment schemes
Lucian Dervan has recently posted two notable new articles on white-collar crime and punishment on SSRN. Here are links to both articles and their abstracts:
Abstract: In this symposium article, Professor Dervan examines the issue of finality and sentencing. In considering this issue, he argues that prosecutors, defendants, and society as a whole are drawn to the concept of finality in various ways during criminal adjudications. Further, far from an aspirational summit, he argues that some outgrowths of this quest for finality could be destructive and, in fact, obstructive to some of the larger goals of our criminal justice system, including the pursuit of truth and the protection of the innocent.
Given the potential abstraction of these issues, Professor Dervan decided to discuss the possible consequences of our quest for finality through examination of specific cases. Therefore, the article examines five stories of white collar criminal prosecution. The five stories are ones in which the players sought to achieve finality in different ways and in which finality came in different forms. Despite their differences, however, the stories do share important commonalities.
First, the stories demonstrate that we must be careful not to value finality over accuracy. As an example, though plea bargaining offers both the prosecution and the defense a mechanism by which to reach sentencing finality, it must not be used to mask unfounded criminal cases or offer overpowering incentives to innocent defendants to falsely confess in return for a promise of leniency. Second, the stories remind us that the government must be careful not to confuse achieving a victorious sentencing finality with achieving a just one. Too often today, the government proceeds after indictment as though winning a sentence at any cost is worth any price. Third, the stories reveal that, in many ways, the quest for true finality in criminal cases is fleeting. While we have long been aware of the lingering collateral consequences present even after a sentence is concluded, we now must also recognize that even those who are acquitted face significant collateral consequences from indictment itself.
Abstract: Overcriminalization takes many forms and impacts the American criminal justice system in varying ways. This article focuses on a select portion of this phenomenon by examining two types of overcriminalization prevalent in white collar criminal law. The first type of over criminalization discussed in this article is Congress’s propensity for increasing the maximum criminal penalties for white collar offenses in an effort to punish financial criminals more harshly while simultaneously deterring others. The second type of overcriminalization addressed is Congress’s tendency to create vague and overlapping criminal provisions in areas already criminalized in an effort to expand the tools available to prosecutors, increase the number of financial criminals prosecuted each year, and deter potential offenders. While these new provisions are not the most egregious examples of the overcriminalization phenomenon, they are important to consider due to their impact on significant statutes. In fact, they typically represent some of the most commonly charged offenses in the federal system.
Through examination of the Sarbanes-Oxley Act of 2002 and examples of these two types of over criminalization within that law, this article seeks to understand whether new crimes and punishments really achieve their intended goals and, if not, what this tells us about and means for the over criminalization debate and the criminal justice system as a whole.
Yet more ACCA messiness out of Maryland
I noted in this post last week this lengthy Baltimore Sun article discussing how the multi-dimensional jurisprudential mess that is application of the Armed Career Criminal Act is messing with federal courts in Maryland. Now this new Baltimore Sun article, headlined "Federal appeals court ruling could lead to more reduced sentences; Court rules that Maryland burglary convictions should not be used to increase sentences," reviews the latest chapter to rhis saga courtesy of the Fourth Circuit. Here are the basics:
A federal appeals court ruling could add to the number of inmates with legal grounds to seek reduced sentences because of a shifting interpretation of sentencing guidelines and what constitutes a violent crime. The 4th U.S. Circuit Court of Appeals invalidated last week a 3.5-year sentence for Jose Herbert Henriquez, an El Salvadoran who pleaded guilty to illegally re-entering the United States. The lengthy sentence was based in part on a previous burglary conviction.
"A Maryland conviction of first-degree burglary cannot constitute a crime of violence," Judge James A. Wynn Jr. wrote for the majority, remanding the case to a lower court for Henriquez to be resentenced.
The finding follows a Supreme Court decision that gave judges new instructions on how to determine which state laws should count as violent. That finding and a subsequent appeals case has led to dozens of federal inmates from Maryland challenging their sentences, and Wynn's decision raises the possibility of further challenges.
Prosecutors say the technical rulings threaten to undermine efforts to impose long sentences and keep the public safe, but inmate advocates say prisoners who have been unjustly locked away for too long are finding hope in the string of court victories....
The federal sentencing guidelines call for longer sentences in unlawful re-entry cases for defendants previously convicted of a violent crime. Among those crimes, the guidelines include "burglary of a dwelling." Maryland's first-degree burglary law defines the crime as breaking into a dwelling with the intent to commit a crime of violence or a theft.
Wynn, joined by other 4th Circuit judges, found that Maryland law does not sufficiently define dwelling to ensure it's in keeping with a Supreme Court ruling that burglary only includes breaking into a building — and not, for example, a houseboat or an RV.
The Fourth Circuit ruling in US v. Henriquez, No. 13-4238 (4th Cir. June 27, 2014), is available here.
Recent related post:
Can and should California's enduring CJ problems be blamed on those who've long opposed a state sentencing commission?
The question in the title of this post is part of my take-away from an engaging and spirited debate with Bill Otis and others that I participated in here over at Crime & Consequences. The debate began when Bill highlighted this disconcerning recent Los Angeles Times article highlighting that prison reforms in California under Gov. Jerry Brown's realignment plans have not been working out as well as Gov. Brown promised and everyone else might have hoped. Here is an extended passage from the LA Times article:
Nearly 15 months after launching what he called the "boldest move in criminal justice in decades," Gov. Jerry Brown declared victory over a prison crisis that had appalled federal judges and stumped governors for two decades. Diverting thousands of criminals from state prisons into county jails and probation departments not only had eased crowding, he said, but also reduced costs, increased safety and improved rehabilitation....
The numbers tell a different story. Today, California is spending nearly $2 billion a year more on incarceration than when Brown introduced his strategy in 2011. The prisons are still overcrowded, and the state has been forced to release inmates early to satisfy federal judges overseeing the system....
Counties, given custody of more than 142,000 felons so far, complain that the state isn't paying full freight for their supervision. Many jails are now overcrowded, and tens of thousands of criminals have been freed to make room for more. "The charts are sobering," Senate Public Safety Committee Chairwoman Loni Hancock (D-Berkeley) said at a hearing this year on crime, prison costs and inmate numbers....
In theory, the state would reduce its prison population and save money [through realignment]. Local authorities would take a more active role in rehabilitation and parole — an approach Brown saw as more efficient and effective. "You have to take care of your own," said Diane Cummins, Brown's special advisor on realignment.
The reality, however, is that realignment fell short of Brown's promised achievements. The prison population fell sharply at first, dropping from 162,400 to 133,000, but it is rising again. There now are 135,400 inmates in state custody, a number expected to grow to 147,000 in 2019.
The state Finance Department originally projected that realignment would reduce prison spending by $1.4 billion this fiscal year and that about two-thirds of that savings would be passed on to counties to cover the costs of their new charges. Instead, the state's increased costs for private prison space and the compensation it pays out for county jails, prosecutors and probation departments adds up to about $2 billion a year more for corrections than when Brown regained office.
Without stemming the flow of prisoners into the system, the problems created by crowding continue. The Little Hoover Commission, an independent state agency that investigates government operations, said in a May report that realignment simply "changed the place where the sentence is served."
One of the biggest effects of realignment is that state and local authorities are releasing inmates early. From October 2011 to June 2013, California jail releases increased by 45,000, according to state data. The biggest rise has been a doubling in the number of inmates freed before doing half their time.... Although there is no hard proof, politicians, researchers and law enforcement officials are debating whether realignment is behind a recent 8% rise in property crime, reversing years of decline.
Brown's advisors counter that freeing jail inmates is safer than releasing state prisoners. But that too is happening. Under federal orders, the state in April and May freed a total of more than 800 prisoners.
Not surprisingly, the tough-on-crime crowd over at C&C is eager to blame these less-than-positive developments on Gov. Brown and/or the democrats in the California legislature and/or the judges and Justices who declared California's overstuffed prisons to be unconstitutional. But, notably, it was this same tough-on-crime crowd that vehemently opposed and effectively blocked efforts to create a California sentencing commission to deal proactively and smartly with these enduring problems before they became so acute that federal court intervention was required. Here is a listing from this blog of some posts noting the debate over creating a sentencing commission in California stretching back to 2006:
- Might California finally create a sentencing commission? (Nov 2006)
- A push for a sentencing commission in California (Jan 2007)
- Advocating a sentencing commission for California (June 2007)
- California sentencing commission complications (Sept 2007)
- Possibility of California sentencing commission continues to generate controversy (Aug 2009)
- Latest legislative twist suggests California won't have a sentencing commission anytime soon (Aug 2009)
Among other realities, a review of this history shows former California Gov. Arnold Schwarzenegger, pushed by police chiefs and district attorneys, initially opposed the creation of a sentencing commission in 2007. But, by 2009, as the state's ensuring prison problems became even more acute and as consequential federal court orders became even more likely, Gov. Schwarzenegger came to recognize the desparate need for California to have an institution that could bring a data-driven "smart" approach to CJ reform in the state. Nevertheless, continued advocacy against any commission by the tough-and-tougher crowd in California ultimately precluded (and seemingly still precludes) the creation of such an entity in California.
I do not mean to assert that all would be sunshine and roses in the challenging regulatory state of California if a sentencing commission had been created in 2007 or 2009. But I do mean to assert that those eager to attack Gov. Brown and/or legislators who have struggled to deal with post-Plata reforms should, at the very least, acknowledge that proponents of a California sentencing commission asserted that the such a commission would have dealt better with prison challenges (and maybe even would have prevented Plata from happening). In other words, those assailing current developments should at least explain why those who advocated commission-driving smarter policy rather than tougher politics back in 2007 or 2009 would be misguided to assert that the tough-and-tougher crowd in California is arguably most responsible for the current California mess.