February 22, 2014
Another weekend review of news and notes from the modern marijuana movement
I have not done a round up for posts from Marijuana Law, Policy and Reform in a few weeks, so here goes:
- Is 13 years for possession of a small amount of marijuana constitutionally excessive?
- Looks like California will not be voting on marijuana legalization again until 2016
- "Inside the Anti-Pot Mindset" of one notable addiction doctor concerned with teenage marijuana use
UPDATE: This new lengthy Washington Post piece provides some historical perspective on all the modern developments discussed above. The piece is headlined "Marijuana’s rising acceptance comes after many failures. Is it now legalization’s time?," and here are its final two paragraphs:
As the rhetorical battle continues and politicians remain cautious about speaking out on marijuana, the facts on the ground are changing fast. The Cannabis Cup, an open-air marketplace the size of two football fields in the San Bernardino Valley, featured open consumption of pot-infused sodas, candies and cookies and displays of whole marijuana plants — staged with virtually no controversy.
“Generations coming up now don’t see what the big deal is,” says Brian Wansolich, 39, wearing a white coat emblazoned with the logo of his online cannabis ratings service, Leafly. “My parents still have moral problems with it, but now they see we can tax this and get states out of trouble. It’s the American way.”
"The State’s Victim: Should the State Grant Rights and Privileges to the Families of Death Row Defendants?"
The title of this post is the title of this notable student note by Michelle Tomes now available via SSRN. Here is the abstract:
This Article argues that the friends and family of the person condemned to death are victims of the state, which chooses to charge the defendant with a capital crime. Due to the trauma, stress, and the need of support services, the state should define the families of the defendants as victims. Additionally, Part I of this article outlines the victim’s rights movement and the problems that come from society not considering the families of defendants as victims. Part II of this article defines why the state should consider the family of the defendants as victims.
Part III of this Article will argue that the state should allow contact visits with the inmate as a recognized right to the defendant and the defendant’s family. Additionally, Part III will argue that the new category of victims deserve equal access to support as the victims of crime, and will supply evidence that supports the introduction of execution impact evidence on behalf of the defendant.
February 21, 2014
Notable New Yorker piece reporting on forthcoming federal judicial sentencing patterns
A helpful reader altered me to this notable new piece about sentencing policies and practices from The New Yorker authored by Columbia Law Prof Tim Wu. The full piece ends by stressing one concern I often express about the challenge of using mandatory sentencing laws to try to deal with concerns about judicial sentencing disparity — namely "that they tend to increase the power that prosecutors have over sentencing, and prosecutors, if anything, vary even more than judges." But the piece caught my attention late on a Friday afternoon mostly because of this discussion of some notable forthcoming research on modern federal sentencing patterns:
Sentencing decisions change lives forever, and, for that reason and others, they’re hard to make. It is often suspected that different judges sentence differently, and we now have a better idea of this. A giant, forthcoming study of the federal judiciary reveals clear patterns: Democrats and women are slightly more lenient. Where you’re sentenced matters even more. Judges in the South are harsher; in the Northeast and on the West Coast, they are more easygoing.
The study’s author is Crystal Yang, a fellow at the University of Chicago Law School, who based it on data from more than six hundred thousand convicted defendants between 2000 and 2009. (Impressively, in certain ways her study exceeds the work of the United States Sentencing Commission.) She writes, “Female judges sentenced observably similar defendants to approximately 1.7 months less than their male colleagues.” In addition, judges appointed by a Democratic President were 2.2 per cent more likely to exercise leniency. Regional effects are more challenging to measure, because, for example, the kinds of crime that happen in New York might differ from those in Texas. But recent data suggest that, controlling for cases and defendant types, “there is substantial variation in the sentence that a defendant would receive depending on the district court in which he is sentenced” — as much as eleven months, on average. The results are all statistically significant, according to Yang — and, if the differences sound relatively small, it is also important to remember that what she is measuring are average differences. In straightforward cases, judges may be more likely to issue similar rulings. It’s the hard cases where judges vary. In a case on the edge, the identity of your judge might make an important difference.
Of course, all sophisticated federal sentencing practitioners know that in all cases, not just those "on the edge," the "identity of your judge might make an important difference." And I regularly tell law students that every federal defendant ought to realize from the moment he or she is subject to a federal investigation, in all cases, not just those "on the edge," the identity of the prosecutor and probation officer and defense attorney also "might make an important difference." Consequently, I am not sure Crystal Yang's "giant, forthcoming study of the federal judiciary" is likely to tell us a lot that we do not already suspect or know.
That all said, I am already jazzed to hear a lot more about what Crystal Yang has collected and analyzed concerning the federal sentencing of "more than six hundred thousand convicted defendants between 2000 and 2009"! That is a whole lot of data, and it spans a remarkable decade in federal sentencing developments which included the passage of the PROTECT Act and the transformation of federal sentencing law and practices wrought by Blakely and Booker and its progeny.
UPDATE: After doing a little research, I think I discovered that an updated version of Crystal Yang's research discussed above is now available here at SSRN, and is soon to be published in the New York University Law Review.
SCOTUS permits additional briefing on CP restitution issues in light of Burrage
The Supreme Court issued a notable two-sentence order today in Paroline v. US, the pending case on child porn restitution sentences. Here is the text of the order:
The motion of respondent Amy Unknown for leave to file a supplemental brief after argument is granted. The other parties may file supplemental briefs, not to exceed 3,000 words each, addressing the effect of our decision in Burrage v. United States, 571 U. S. ___ (2014), on this case, on or before Friday, March 7, 2014.
Lyle Denniston over SCOTUSblog has an extended discussion of this intriguing new development, which includes these passages:
The Court, it appears, did not stir up this new issue on its own. The day after the Burrage decision had been issued, counsel for Doyle Randall Paroline sent a letter to the Court suggesting that this ruling should apply to his client’s case. The new “Amy Unknown” brief came in response to that, and argued that there were fundamental differences involved.
Two different laws are at issue in the two cases, but the Court’s new action seemed to suggest that there may be some overlap in how to interpret them....
In a letter to the Court Clerk on January 29, Houston attorney Stanley G. Schneider noted the new Burrage ruling, and said he believed it “should apply to the arguments made on behalf of Mr. Paroline.” The letter offered to submit a brief on the point.
In the supplemental brief, filed on February 11, lawyers for “Amy Unknown” disputed that suggestion, saying that the Court was obliged to interpret a criminal law like the heroin sentence enhancement law in a strict way, but that there is a long tradition of interpreting remedies for torts (legal wrongs) more expansively. In particular, the new brief said, there is strong authority for the concept of assessing the full amount of damages for a tort to those who had contributed to the harms done.
The supplemental filing accepted by the Supreme Court today from lawyers for “Amy Unknown” is available at this link.
A few (of many) prior posts on Paroline and child porn restitution issues:
- Fascinating NY Times magazine cover story on child porn victims and restitution
- "Pricing Amy: Should Those Who Download Child Pornography Pay the Victims?"
- SCOTUS grants cert on challenging child porn restitution issues that have deeply split lower courts
- "Should child porn 'consumers' pay victim millions? Supreme Court to decide."
- Gearing up for Paroline with a short "Child Pornography Restitution Update"
- Another preview of Paroline via the New York Times
- Yet another effective review of the child porn restitution challenges facing SCOTUS
- Explaining why I am rooting so hard for "Amy" in Paroline
February 21, 2014 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
How might opponents of marijuana reform want Colorado to spend its $100 million in new annual tax revenue?
The question in the title of this post is prompted by the notable tax revenue news emerging from Colorado as reported in this New York Times piece headlined "Colorado Expects to Reap Tax Bonanza From Legal Marijuana Sales." Here are the basics (with some of the existing state spending plans highlighted):
For Colorado’s new flock of recreational marijuana growers and sellers, Thursday was Tax Day — their first deadline to hand over the taxes they had collected during their inaugural month of sales. And as store owners stuffed cash into lockboxes and made the nervous trek to government offices, new budget numbers predicted that those marijuana taxes could add more than $100 million a year to state coffers, far more than earlier estimates.
The figures offered one of the first glimpses into how the bustling market for recreational marijuana was beginning to reshape government bottom lines — an important question as marijuana advocates push to expand legalization beyond Colorado and Washington State into states including Arizona, Alaska and Oregon.
In Colorado, where recreational sales began on Jan. 1 with hourlong waits, a budget proposal from Gov. John W. Hickenlooper estimated that the state’s marijuana industry could reach $1 billion in sales in the next fiscal year, with recreational sales making up about $610 million of that business. “It’s well on its way to being a billion-dollar industry,” said Michael Elliott, executive director of the Marijuana Industry Group, a Colorado trade association. “We went from 110,000 medical marijuana patients to four billion people in the world who are 21 and up.”
In the budget proposal that Mr. Hickenlooper released Wednesday, his office said the state could collect about $134 million in taxes from recreational and medical marijuana for the fiscal year beginning in July. He proposed to spend $99 million on programs including substance-abuse treatment, preventing marijuana use by children and teenagers, public health and law enforcement. “This package represents a strong yet cautious first step toward ensuring a safe and responsible regulatory environment,” Mr. Hickenlooper wrote in the proposal.
In Washington, where retail sales of marijuana are expected to begin in June, budget forecasters estimated Wednesday that marijuana could bring the state nearly $190 million in taxes for the four years beginning in the middle of 2015. That money would go to a variety of health and substance-abuse programs, and the state’s general fund. “Every governor and legislator in the country will be like, ‘Hey, check out these numbers,’ ” said Reuven Carlyle, a Democratic state lawmaker from Seattle who is chairman of the House Finance Committee.
For marijuana advocates, taxes were one of the major selling points of legalization. They have said that expanding the market for the federally prohibited plant could give states money for school construction, health care, substance-abuse programs and public health. Colorado’s legalization measure said $40 million in tax revenue would go toward school construction, and in November, voters across this otherwise tax-averse state overwhelmingly approved 25 percent taxes on recreational marijuana.
But opponents, and some skeptical economists, say the dreams of a windfall are far too optimistic. They worry that the higher costs of enforcement and regulation could outweigh any tax revenue from marijuana sales.
Officials in Colorado and Washington warned that the marijuana revenue numbers were only their best guesses for the moment and could shift, depending on marijuana prices, demand, the number of cities that prohibit marijuana retailers and other factors. In Washington, where retail sales have not begun, Mr. Carlyle said it was far too early to say how marijuana might affect the state’s pocketbook.
As this article suggests, it is likely far too early to assume that Colorado can expect to reap $100 million in extra tax revenues every year in the future. But it is now plainly not too early to start a robust discussion — in which I want marijuana reform opponents to play a leading role — about the best ways for the new state tax revenue from marijuana legalization to be used.
Given the limited evidence of success for youth drug education programs like DARE, I am not sure it is wise to invest too much of the new state money on programming to prevent marijuana use by children and teenagers. But I do think spending more money on law enforcement and public health and substance-abuse programs is a great idea, and I would expect that some very significant public safety (and other) benefits ought to be achievable with $100 million in extra tax revenues to spend on such programming.
I suspect fierce opponents of marijuana reform have a much different perspective than I have about the needs of a state like Colorado and its local communities as it move forward with its experiments in ending pot prohibition. Ergo, I am genuinely hopeful that readers deeply concerned with what is unfolding in Colorado and Washington and other states will express their views on how communities ought to be using its new tax revenues.
Is an executed murderer now haunting Missouri's efforts to carry out death sentences?
The somewhat tongue-in-cheek question in the title of this post is prompted by this notable new commentary by Andrew Cohen at The Atlantic. Here is the headline and subheadline of the article: "The Ghost of Herbert Smulls Haunts Missouri's Death Penalty Plans; It's been just three weeks since Missouri executed Herbert Smulls before his appeals were exhausted. And virtually nothing has gone right for the state in its efforts to implement the death penalty since." And here is how the lengthy piece gets started:
It has been only 21 days since Missouri began to execute convicted murderer Herbert Smulls some 13 minutes before the justices of the United States Supreme Court denied his final request for stay. And it is fair to say that the past three weeks in the state's history of capital punishment have been marked by an unusual degree of chaos, especially for those Missouri officials who acted so hastily in the days leading up to Smulls' death. A state that made the choice to take the offensive on the death penalty now finds itself on the defensive in virtually every way.
Whereas state officials once rushed toward executions—three in the past three months, each of which raised serious constitutional questions—now there is grave doubt about whether an execution scheduled for next Wednesday, or the one after that for that matter, will take place at all. Whereas state officials once boasted that they had a legal right to execute men even while federal judges were contemplating their stay requests now there are humble words of contrition from state lawyers toward an awakened and angry judiciary.
Now we know that the Chief Judge of the 8th U.S. Circuit Court of Appeals, as well as the justices of the Supreme Court of the United States, are aware there are problems with how Missouri is executing these men. Now there are fresh new questions about the drug(s) to be used to accomplish this goal. Now there are concerns about the accuracy of the statements made by state officials in defending their extraordinary conduct. Herbert Smulls may be dead and gone but his case and his cause continue to hang over this state like a ghost.
February 20, 2014
Are we "headed for a crime-riddled future" without mandatory minimums?
The question in the title of this post is drawn from a notable quote toward the end of this notable new article from The Economist. The article is headlined "Sentencing reform: Kinder, gentler; Less time inside for less-serious crimes." Here are excerpts:
Last August Eric Holder, America’s attorney-general, issued a memo to federal prosecutors. It directed them not to charge certain low-level, non-violent, non-recidivist drug defendants without ties to cartels with crimes serious enough to trigger mandatory minimum sentences. The direct effects of this policy shift seem small: Paul Hofer, a lawyer who specialises in sentencing matters, found that just over 500 of the roughly 25,000 defendants sentenced under federal drug laws in 2012 might have got a smaller rap if Mr Holder’s policy had been in place then. But it appears to have given sentencing reform a strong shot in the arm.
In early January the United States Sentencing Commission (USSC), the agency that sets sentencing policies for federal courts, published proposed changes to sentencing guidelines, one of which would reduce penalties for some drugs charges....
Congress also seems to be shedding its usual lethargy on the subject. On January 30th the Senate Judiciary Committee sent the Smarter Sentencing Act to the full Senate for a vote. This bill would, first, reduce mandatory minimum sentences for non-violent drug offenders and direct the USSC to lower sentencing guidelines accordingly. Second, it would make the Fair Sentencing Act of 2010 retroactive, so that anyone imprisoned under the old law could apply to have his sentence reduced....
Not everyone is happy with these changes. The National Association of Assistant United States Attorneys (NAAUSA), which represents a minority of federal prosecutors, urged senators not to “weaken the benefits of mandatory minimum sentencing” — ie, the fact that harsh sentences terrify defendants into co-operating with prosecutors. One member of the NAAUSA frets that without mandatory minimums, “we are headed for a crime-riddled future.”
Yet reform continues. Barack Obama has yet to commute many long federal sentences, but the Justice Department wants to find more candidates for presidential clemency. On February 11th Mr Holder urged states to repeal laws that bar ex-convicts from voting. Anecdotal evidence from federal courts in Tennessee, Vermont and Virginia shows that some judges are already shifting position because they expect the Smarter Sentencing Act to pass. Advocates for ever-harsher sentences appear to be losing the whip hand.
"The Unbearable Lightness of Criminal Procedure"
The title of this post is the title of this interesting paper by Ion Meyn available via SSRN. Here is the abstract:
What is revealed about criminal procedure if we compare it to civil procedure? Prevailing scholarship compares American criminal procedure to criminal procedure in Europe. One of the most influential of these transatlantic comparisons is Gerard Lynch’s Our Administrative System of Criminal Justice. Lynch arrives at the insight that the American criminal model of adjudication is not trial-based, but like the European model, administrative in nature. He further concludes that both models strike an adequate balance between the competing goals of efficiency and accuracy. A comparison of American criminal procedure to its common law counterpart, civil procedure, confirms Lynch’s view that criminal the criminal process is administrative in nature. But the comparison also leads one to question Lynch’s assessment that the American criminal model adequately achieves efficiency and accuracy.
Though historically similar, the criminal and civil pretrial process has evolved into two distinct models of administrative adjudication. This article contends that civil procedure reforms identified due process features otherwise locked in trial and modified them for pretrial use. These features of trial include the opportunity to compel and present facts, the application of the rules of evidence, and active judicial intervention to ensure fair play. Though civil litigants do not typically proceed to trial, these reforms permit litigants to compel testimony and demand that legal claims have factual integrity. But where reforms to civil procedure have imported due process into the pretrial process, criminal procedure has remained resistant to such innovation. Instead, during the criminal pretrial period, parties have unequal access to facts. Few rules ensure factual integrity. And the court has little opportunity to review the pretrial record. As a result, separate and unequal procedural models govern the pretrial resolution of disputes within our courtrooms.
A shameful suggestion for how to NYC roads and walkways safer
I was asked yesterday to contribute my thoughts to the Room for Debate section of the New York Times to address the question of "what steps can [New York City] officials, pedestrians and drivers take to reduce the number of accidents?". My suggestion in available at this link, and here is a segment:
Perhaps Mayor de Blasio might try to impose salient shaming sanctions rather than other traditional punishments.
What if, after a reckless driver has caused a crash in Midtown, the offender were required to create a video reciting recent accident data, which would be posted on YouTube and regularly shown on screens in Times Square? What if, after a cyclist is caught dangerously weaving through traffic in Brooklyn, that scofflaw had to make a live apology during halftime of a Nets game? What if all drivers convicted of speeding were required to place bumper stickers on their cars highlighting that the owner does not follow traffic rules? ...
Because we have rarely tried to make traffic offenders “pay” for their crimes through prominent use of shaming, I cannot confidently predict it would be more effective. But given the challenges in trying to capture the attention and obedience of busy New York City drivers, it is worthwhile to consider creative alternative punishment schemes.
"Institutionalizing Bias: The Death Penalty, Federal Drug Prosecutions, and Mechanisms of Disparate Punishment
The title of this post is the title of this notable new paper by Mona Lynch now available via SSRN. Here is the abstract:
The empirical study of capital punishment in the “modern” era has been largely decoupled from scholarship addressing the corollary late-20th century noncapital punitive developments, such as the rise of mass incarceration. Consequently, research that has examined the problem of racial disparities in the administration of the death penalty and research on the proportional growth of minorities in American correctional populations have advanced on parallel tracks, rarely intersecting.
In light of this symposium’s effort to strengthen the linkages between the death penalty and mass incarceration, this article examines two seemingly distinct cases of racially disparate criminal justice practices — the trial courts’ processing of contemporary capital cases and federal drug trafficking cases — to illustrate the institutionalized mechanisms that produce racial inequalities in both mass incarceration and capital punishment. I advance a meso-level, social-psychological theory on the production of institutional racism that also aims to integrate contested lines of thought about the mechanisms of bias and discrimination.
To accomplish these ends, I specifically focus on three problem areas in the structure and operation of contemporary American criminal justice: 1) the codification of inequality in how crimes and criminal culpability are defined and how sentencing rules are structured; 2) the distribution, by both stage and actor, of discretionary decision-making power; and 3) the mechanisms for relief from the harshest potential punishments.
February 19, 2014
Curious DOJ clemency campaign continues through meeting with defense groups
This notable NPR story, headlined "Justice Dept. Asks For Help Finding Prisoners Who Deserve Clemency," reports on the latest development concerning the curious (though encouraging) new DOJ push for clemency candidates. Here are the details:
The second-in-command at the Justice Department met Tuesday with defense lawyers and interest groups to identify the cases of worthy prisoners who could qualify for clemency.
The initiative by Deputy Attorney General James Cole follows a speech he gave last month suggesting the White House intends to make more use of the president's power to shorten prison sentences for inmates who have clean records, no significant ties to gangs or violence, and who are serving decades behind bars for relatively low-level offenses.
Cole wants to enlist lawyers to help solicit and prepare clemency requests. It's part of a broader effort to stop spending so much money incarcerating people that it squeezes the public safety budget. A Justice Department spokesman says Cole "wants to ensure that individuals like the eight whose sentences the president commuted in December have access to attorneys to help them present their cases."
Longtime followers of the pardon power have criticized President Obama's relatively stingy approach over five years in office. They also suggest that backlogs in the Justice Department's Office of Pardon Attorney might get worse if the call for more prisoner petitions takes hold. But the Justice spokesman says Cole has made this effort a top priority and that he's instructed the pardon attorney to do the same, taking some steps to handle any influx of clemency requests in the months ahead.
Representatives from the National Association of Criminal Defense Lawyers, the American Civil Liberties Union, the Federal public defender program and Families Against Mandatory Minimums had been scheduled to attend the meeting at Justice Department headquarters. Mary Price of FAMM, one of the attendees, says she came away feeling "really encouraged."
"We look forward to working together with them and others to help identify potential commutation cases and ensure prisoners have trained pro bono counsel to submit focused petitions for the meaningful consideration the Deputy Attorney General has pledged they will receive," Price says.
Some recent and older posts concerning federal clemency practices:
- "White House Seeks Drug Clemency Candidates" ... like Weldon Angelos and Chris Williams?
- Deputy AG Cole's remarkable remarks to the NYSBA
- "How to Awaken the Pardon Power"
- New Slate pitch for Prez to use clemency powers to address crack sentencing disparities
- "Clemency Reform: We're Still Waiting"
- New York Times editorial assails Prez Obama's considerable clemency failings
- Updated numbers on President Obama's disgraceful clemency record
- ProPublica reveals more ugliness in federal clemency process
- Reflecting on Obama Administration's latest "half-way" approach to clemency
After she asked for life sentence, Sister Megan Rice gets 35 months' imprisonment and her co-defendants get 62 for sabotage
As reported in this local piece, an "84-year-old Catholic nun will spend nearly three years in federal prison for breaking into one of the U.S. government's most secure facilities and helping deface a uranium-processing building with human blood, a federal judge ruled Tuesday." Here is more about the fascinating sentencing conclusion to a high-profile case of law-breaking civil disobedience:
Megan Rice, who turned 84 on Jan. 31, and fellow anti-nuclear activists Michael Walli, 64, and Greg Boertje-Obed, 58, were convicted in May of sabotaging the plant in Oak Ridge, Tenn. All three are members of the Plowshares movement of Christian pacifists.
U.S. District Judge Amul Thapar in Knoxville, Tenn., sentenced Rice to 35 months in prison for her role in the July 28, 2012, break-in and protest. The judge sentenced Walli and Boertje-Obed both to five years and two months in prison. Previously, Thapar had ordered the trio to pay nearly $53,000 in restitution for damaging U.S. government property. In addition, Walli and Boertje-Obed will have three years of supervised release after their prison terms. The two men received longer sentences based on their past criminal history.
During a four-hour hearing Tuesday, Rice pleaded with the judge not to grant her leniency. "Please have no leniency on me," she said. "To remain in prison for the rest of my life would be the greatest honor you could give me."
Thapar didn't oblige but did say that breaking the law isn't the right way to pursue political goals. He said he hoped that a significant prison sentence would deter others from following the same path and bring them "back to the political system I fear that they have given up on."
The protesters picked late July 2012 to break in to the Y-12 National Security Complex because it was close to the dates when the United States dropped atomic bombs on Hiroshima and Nagasaki, Japan, during World War II. The three cut through fences and made it through multiple layers of security. They spent more than two hours in a restricted area and had time to splash blood on the outside of the building where the government processes weapons-grade uranium before security personnel apprehended them....
The three have garnered worldwide attention. Thousands of letters of support have poured into the court from around the world. Those include letters from groups such as the Union for Concerned Scientists. While acknowledging the three were convicted of a federal crime, they exposed serious security weaknesses at Y-12, the group said.
Edwin Lyman, a nuclear security expert at the Union of Concerned Scientists, said in January that the protesters did the nation a public service. "We think, even though they were convicted of a federal crime, there are mitigating circumstances and they made the country safer," Lyman said.
The government has taken the case seriously. The three have been in custody since their conviction, and prosecutors recommended sentences of six to nine years.
A key issue Tuesday was how the judge should follow federal sentencing guidelines. Lawyers for the activists that argued the time they already have served is sufficient punishment.... During the hearing, the judge struggled with how to handle the guidelines. "At some point, the law has to command respect, and there is a lawful way to change it," Thapar said. But he also suggested that Rice's past good works should play a role and wasn't sure how to fit those into the guidelines. He called a recommended sentence of 6½ years for Rice "overkill."
Assistant U.S. Attorney Jeffrey Theodore ... contended the trio's actions were "serious offenses that have caused real harm to the Y-12 National Security Complex." [And] "they have shown no remorse for their criminal conduct," he said.
Recent related posts:
- You be the judge: should guidelines be followed in federal sentencing of elderly nun and two other peace activists?
- Sentencing round two for elderly nun and two other peace activists for breaking into a federal defense facility
February 19, 2014 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1) | TrackBack
NY Times debates "Sentencing and the 'Affluenza' Factor"
This month a judge in Texas ordered a 16-year-old boy who killed four people in a drunken-driving crash to enter rehabilitation as part of 10 years of probation she imposed without a jail sentence. A defense psychologist had said the teenager suffered from ”affluenza,” his judgement stunted by his pampered, privileged upbringing.
The case has angered many who have said that a poor person would have been imprisoned, without the same considerations. To what extent should life circumstances affect sentencing?
Here are the contributions, with links via the commentary titles:
"All Circumstances Are Not Created Equal" by Alan M. Dershowitz
"Judicial Discretion Can Help the Poor" by Timothy K. Lewis
"Systemic Changes Are Necessary" by Preeti Chauhan
"Life Circumstances Level the Sentencing Field" by Marc Mauer
"Consider the Crime’s Root Causes" by Aundrea Brown
"Money Can Open Up Options" by Jenna Finklestein
"Utilitarianism vs. Retributivism" by Alan M. Gershel
Even with reductions in prison populations and end of pot prohibition, crime rates continue historic decline in 2013
As reported in this New York Times piece, the "Federal Bureau of Investigation said Tuesday that violent crimes, including murders, fell by 5.4 percent in the first six months of 2013 compared with the same period in 2012, continuing a long reduction in violent crime across the country." Here are more details about this great news via the FBI (which is available in full detail at this link):
The only category where the number increased was rape, but that number is slightly misleading because the 2013 figure is based on a broader definition of the crime adopted by the Justice Department. In 2013, 14,400 rapes were reported, compared with 13,242 in 2012.
Property crimes also fell significantly, and of all the crimes the F.B.I. tracks — both violent offenses and nonviolent ones — the greatest drop-off, by percentage, was in arsons, which fell by 15.6 percent....
In all, murders fell by 6.9 percent, aggravated assaults by 6.6 percent and robberies by 1.8 percent, the bureau said. The numbers are based on reports from 12,723 law enforcement agencies that provided information to the bureau’s Criminal Justice Information Services Division in Clarksburg, W.Va.
According to the bureau, the number of violent crimes fell by 9.2 percent in cities with fewer than 10,000 people, compared with 3.6 percent for metropolitan counties. In the Midwest, violent crimes fell by 7.4 percent, in the South by 5.9, in the Northeast by 4.3 percent and in the West by 3.7 percent.
Among property crimes, burglary decreased by 8.1 percent, larceny theft by 4.7 percent and motor vehicle theft by 3.2 percent. Arsons fell by 20.4 percent in nonmetropolitan counties and 15.8 percent in metropolitan counties. The decrease in property crimes over all was 12 percent in nonmetropolitan counties and 7.4 percent in metropolitan counties, and the smallest drop-off in property crime occurred in the West, where it fell by 0.3 percent.
In compiling the rape numbers, the bureau used a new definition of rape that removes the word “forcible” and now includes “penetration, no matter how slight” of any orifice “without the consent of the victim,” either men or women. Attorney General Eric H. Holder Jr. said in 2012 that changes were “long overdue.”
“This new, more inclusive definition will provide us with a more accurate understanding of the scope and volume of these crimes,” he said. The new definition, federal authorities said, reflected the majority of state rape statutes.
Besides highlighting how crime definition can impact crime statistics, these wonderful new data provide still further evidence that direct causal links between incarceration rates (or drug war reforms) and national crime rates are hard to establish. As regular readers know, the national prison population has declined a bit in recent years and there have been a wide array of reforms to sentencing laws and corrections policies that have resulted in significant numbers of early prisoner releases (especially in California due to the the Plata litigation and in the federal system due to the Fair Sentencing Act).
In the wake of recent sentencing reforms and in advocacy against further reforms, a number of folks have been predicting we would see a significant increase in crimes. And because crime rate are already at historically low levels, I have long been concerned that would soon start to see an uptick in offense rates. But, at least according to this new FBI data, the great modern crime decline is continuing nationwide even as we are starting to see a slow decline in prison populations and as slow retreat from the scope and severity of the modern drug war.
That said, given that other federal accounting of crime rates showed a spike upward in 2012, as reported here, this FBI data ought not lead advocate of sentencing reforms to assert that we now know that there is no harmful public safety impact resulting from sentencing reforms. The lastest crime data from the Bureau of Justice Statistics reported crime rates started going back up in 2012 (discussed here), and I have long stressing the need and importance of a careful state-by-state examination of where crime is going up and whether new (and still emerging) data on changes imprisonment rates and crimes rates provide critical new lessons concerning what we can now reasonably and reliably conclude about the connections between crime and punishment.
A few related posts on modern crime rates:
- Effective Washington Post commentary talks up great (and still puzzling) crime decline
- Should we thank unleaded gas and the EPA for the great modern crime decline?
- Still more (and still puzzling) crime rate declines reported by FBI
- Is the great US crime decline now finally over?: BJS reports crime up in 2011
- FBI reports crime was down yet again in 2011 (though BJS said it was up)
- Uh-oh: BJS reporting significant spike up in violent and property crime for 2012
- FBI releases 2012 crime statistics showing stability in relatively low crime rates
- New National Academy of Sciences effort seeking to unpack the crime decline
- A useful reminder of the challenge of assessing crime rates, lies, damn lies and statistics
"Will There Be a Neurolaw Revolution?"
The question in the title of this post is the title of this new paper by Adam Kolber now available via SSRN. Here is the abstract:
The central debate in the field of neurolaw has focused on two claims. Joshua Greene and Jonathan Cohen argue that we do not have free will and that advances in neuroscience will eventually lead us to stop blaming people for their actions. Stephen Morse, by contrast, argues that we have free will and that the kind of advances Greene and Cohen envision will not and should not affect the law. I argue that neither side has persuasively made the case for or against a revolution in the way the law treats responsibility.
There will, however, be a neurolaw revolution of a different sort. It will not necessarily arise from radical changes in our beliefs about criminal responsibility but from a wave of new brain technologies that will change society and the law in many ways, three of which I describe here: First, as new methods of brain imaging improve our ability to measure distress, the law will ease limitations on recoveries for emotional injuries. Second, as neuroimaging gives us better methods of inferring people’s thoughts, we will have more laws to protect thought privacy but less actual thought privacy. Finally, improvements in artificial intelligence will systematically change how law is written and interpreted.
February 18, 2014
Could marijuana reforms end up making our roadways much safer?
The question in the title of this post might be a bit of foolish wishful thinking on my part, but these passages from this notable new New York Times article provides the foundation for my (undue?) optimism:
[S]cience’s answers to crucial questions about driving while stoned — how dangerous it is, how to test for impairment, and how the risks compare to driving drunk — have been slow to reach the general public. “Our goal is to put out the science and have it used for evidence-based drug policy,” said Marilyn A. Huestis, a senior investigator at the National Institute on Drug Abuse. “But I think it’s a mishmash.”
A 2007 study found that 12 percent of the drivers randomly stopped on American highways on Friday and Saturday nights had been drinking. (In return for taking part in the study, intoxicated drivers were told they would not be arrested, just taken home.) Six percent of the drivers tested positive for marijuana — a number that is likely to go up with increased availability. Some experts and officials are concerned that the campaign against drunken driving has not gotten through to marijuana smokers.
“We’ve done phone surveys, and we’re hearing that a lot of people think D.U.I. laws don’t apply to marijuana,” said Glenn Davis, highway safety manager at the Department of Transportation in Colorado, where recreational marijuana use became legal on Jan. 1. “And there’s always somebody who says, ‘I drive better while high.’ ”
Evidence suggests that is not the case. But it also suggests that we may not have as much to fear from stoned driving as from drunken driving. Some researchers say that limited resources are better applied to continuing to reduce drunken driving. Stoned driving, they say, is simply less dangerous.
Still, it is clear that marijuana use causes deficits that affect driving ability, Dr. Huestis said. She noted that several researchers, working independently of one another, have come up with the same estimate: a twofold increase in the risk of an accident if there is any measurable amount of THC in the bloodstream....
The estimate is low, however, compared with the dangers of drunken driving. A recent study of federal crash data found that 20-year-old drivers with a blood-alcohol content of 0.08 percent — the legal limit for driving — had an almost 20-fold increase in the risk of a fatal accident compared with sober drivers. For older adults, up to age 34, the increase was ninefold.
The study’s lead author, Eduardo Romano, a senior research scientist at the Pacific Institute for Research and Evaluation, said that once he adjusted for demographics and the presence of alcohol, marijuana did not statistically increase the risk of a crash. “Despite our results, I still think that marijuana contributes to crash risk,” he said, “only that its contribution is not as important as it was expected.”
The difference in risk between marijuana and alcohol can probably be explained by two things, Dr. Huestis and Dr. Romano both say. First, stoned drivers drive differently from drunken ones, and they have different deficits. Drunken drivers tend to drive faster than normal and to overestimate their skills, studies have shown; the opposite is true for stoned drivers. “The joke with that is Cheech and Chong being arrested for doing 20 on the freeway,” said Mark A. R. Kleiman, a professor of public policy at the U.C.L.A. School of Public Affairs....
Another factor is location. A lot of drinking is done in bars and clubs, away from home, with patrons driving to get there and then leaving by car. By contrast, marijuana smokers tend to get high at home....
All of these facts lead experts like Dr. Romano and Dr. Kleiman to believe that public resources are better spent combating drunken driving. Stoned driving, they say, is best dealt with by discouraging people from mixing marijuana and alcohol — a combination that is even riskier than alcohol alone — and by policies that minimize marijuana’s risk on the road.
For instance, states that legalize recreational marijuana, Dr. Kleiman said, should ban establishments like pot bars that encourage people to smoke away from home. And Dr. Romano said that lowering the legal blood-alcohol concentration, or B.A.C., to 0.05 or even 0.02 percent would reduce risk far more effectively than any effort to curb stoned driving. “I’m not saying marijuana is safe,” he said. “But to me it’s clear that lowering the B.A.C. should be our top priority. That policy would save more lives.”
My supposition based on this article that marijuana reforms could end up making our roadways much safer is a result of two potential impacts of ending pot prohibition: (1) if marijuana reform leads a number of people who would generally go get drunk at a bar to instead now just get stoned at home, the net effect will be safer roads, and (2) if enduring concerns about the impact of marijuana reform leads more policy-makers to focus on highway harms, we might see a greater effort to get much tougher on the enduring public safety disaster that is drinking and driving.
I am not expecting that we will get strong evidence that marijuana reforms end up making our roadways much safer anytime soon, but I am hopeful that researchers like Dr. Romano and Dr. Kleiman continue to stress that our modern alcohol policies and practices now impact highway safety much more than any marijuana reforms are likely to do. And, as these related recent articles also highlight, the media so far is doing a pretty good job defusing the risk of misguided reefer madness when it comes to driving under the influence:
From the Denver Post: "Colorado marijuana legalization's impact on stoned driving unknown
Cross-posted at Marijuana Law, Policy and Reform
Execution news in many states thanks to drug shortages and lethal injection litigation
I have gotten more than a little fatigued trying to keep track of all the legal and political developments in states trying to get access to the drugs they need to carry out planned executions. Nevertheless, a new round of headlines about this topic filled up my news feeds this morning, so I could not resist reporting some of the news through a these stories and links:
February 17, 2014
Sentencing round two for elderly nun and two other peace activists for breaking into a federal defense facility
This new report from The Guardian, headlined "84-year-old nun who broke into Tennessee weapons plant awaits fate," spotlights a high-profile federal sentencing case (previously discussed in this post) that is scheduled for final sentencing tomorrow morning. Here are excerpts:
An 84-year-old nun who broke into a Tennessee weapons plant and daubed it with biblical references, will learn on Tuesday whether she will spend what could be the rest of her life in prison.
Two weeks ago, at a sentencing hearing, a judge ordered Sister Megan Rice and her co-defendants, two other Catholic anti-nuclear activists, Greg Boertje-Obed, 58, and Michael Walli, 64, to pay $53,000 for what the government estimated was damage done to the plant by their actions.
All three defendants were convicted of sabotage after the break-in at the Y-12 nuclear weapons plant at Oak Ridge, Tennessee, on 28 July 2012. The charge, under a statute of the US criminal code used against international and domestic terrorism, carries a maximum sentence of up to 30 years. The government have asked for the trio to be given prison sentences of between five and nine years. They would have learned their fate in the January hearing, but it was cut short due to bad weather and rescheduled for Tuesday.
In an interview with the Guardian from Knox county jail as she awaited her fate, Rice said she hoped US district judge Amul Thapar would seize the opportunity to “take his place in history” and sentence them in a way that would reflect their symbolic, non-violent actions – actions she said that were intended to highlight the US stockpile of nuclear weapons they believe is immoral and illegal.
“I hope he will answer his conscience,” said Rice, in an interview 24 hours before the last sentencing hearing. “He knows what to do.” She and her co-defendants have been in prison, mostly in Ocilla, Georgia, for eight months, a period of time her lawyers say is sufficient punishment for the break-in.
Thapar has received hundreds of letters and a 14,000 signature petition pleading for leniency in this case, including from Rice’s religious order, the Society for the Holy Jesus, which asked for a reduced or suspended sentence given “her age, her health and her ministry”. Lawyers for Rice, Boertje-Obed, a Vietnam veteran from Washington DC and Walli, a painter from Duluth, Minnesota, have asked for leniency and say the trio admitted have what they did.
The US government contends that none of the defendants arguments merit leniency. At the hearing on 28 January, it said they did not accept they had committed crimes, took no responsibility for them, showed no contrition and, then, during the trial, proceeded to argue against the laws they had broken. It has described the three, who have previous convictions related to their protest activities, as “recidivists and habitual offenders”.
Jeffery Theodore, assistant US attorney general for the eastern district of Tennessee, told the court that the three “pretty much celebrated their acts”. At the January hearing, he described their argument that they were trying to uphold international law as “specious and disingenuous” and said there had been no single case where international law has been seen as justification for breaking US laws. The judge agreed with Theodore that the defendants were not remorseful and that they didn’t accept any responsibilities for their crimes, and said they would not be given downward departures for admitting responsibility.
At the January hearing, four character witnesses for the defendants gave powerful testimony about their strong Christian and pacifist principles, their commitment to helping others and their dedication to their cause. They, and the scores of supporters crowded into the courtroom, also provided an insight into the close-knit nature of the anti-nuclear faith community.
Regular readers are surely not surprised to hear that I find this federal sentencing case very interesting for a number of reasons. But they may be surprised to learn that US District Judge Amul Thapar used the sentencing break/delay as an opportunity to request that I submit a "friend-of-the-court brief" to assist the Court as it tackled some challenging issues concerning the departure requests made by one of the defendants. I was honored and grateful to be able to provide such assistance directly to the court, and below I have uploaded Judge Thapar's order (which requests my submission at the end) and my submission in response:
Order in US v. Walli: Download MEO in CR-12-107 with Friend Brief Request
My submission in US v. Walli: Download Berman Friend Brief for Judge Thapar
Recent related post:
- You be the judge: should guidelines be followed in federal sentencing of elderly nun and two other peace activists?
February 17, 2014 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4) | TrackBack
Federal judge urges passage of the Smarter Sentencing Act because of "Prisoners I Lose Sleep Over"
The title of this post is drawn from the headline given to this recent commentary piece in the Wall Street Journal authored by senior US District Judge Michael Ponsor. Here are excerpts:
The Senate Judiciary Committee approved the "Smarter Sentencing Act" by a bipartisan vote of 13-5 on Jan. 30, sending it to the Senate floor. The legislation is excellent and its passage would mean a long overdue correction of a misguided sentencing regime that Americans — including federal judges like me — have struggled with for more than two decades.
I've been on the federal bench for 30 years, having served 10 years as a magistrate judge and 20 as a U.S. district judge. My pride in our constitutional system runs bone deep: No system of law has ever existed that tries so hard to be truly fair. I can take scant pride, however, in the dark epoch our criminal sentencing laws have passed through during my decades handling felony cases....
For years, I could recite the mandatory terms for crack in my sleep: five years for five grams, 10 years for 50 grams, 20 years for 50 grams with one prior conviction, life without parole for 50 grams with two priors — no discretion, no consideration of specific circumstances. These mandatory terms (unless the defendant cooperated by implicating others) were the same for low-level couriers, called mules, as for high-echelon drug lords.
By passing the Fair Sentencing Act, Congress recognized that this system of mandatory sentences, in addition to being unjust, was to some extent racially skewed since black drug users tend to favor crack, while whites prefer much less harshly penalized powder cocaine. Yet defendants sentenced before the act was passed still languish today, serving out sentences that virtually all members of Congress now recognize as excessive. And there is not a darn thing anyone can do about it. If you're the one doing the sentencing, this reality will keep you awake at night, believe me.
The Smarter Sentencing Act would reduce 20-year mandatory sentences to 10, 10-year sentences to five, and five-year sentences to two years. Increased numbers of offenders with very modest criminal records would not face mandatory sentences at all. If adopted, the law would also permit thousands of prisoners to seek reduction of their prison terms to bring them in line with the Fair Sentencing Act. None of these changes would reduce the power of judges to slam the really bad actors. But they would permit judges to do what they are paid to do: use their judgment.
Our vast prison apparatus is too costly, but more important, it is unworthy of us as a free people. This new statute is well named — now is the time for smarter sentencing.
Some recent related posts concerning Smarter Sentencing Act:
- Rand Paul begins forceful pitch in campaign against federal mandatory minimums
- Another notable GOP member of Congress advocating for federal sentencing reform
- Conservative group ALEC joins the growing calls for sentencing refom
- Smarter Sentencing Act passes Senate Judiciary Committee by 13-5 vote
- Will Tea Party players (and new MMs) be able to get the Smarter Sentencing Act through the House?
- 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
- Effective Heritage analysis of federal MMs and statutory reform proposals
February 17, 2014 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, New crack statute and the FSA's impact, Who Sentences? | Permalink | Comments (2) | TrackBack
"Follow the Money: How California Counties Are Spending Their Public Safety Realignment Funds"
The title of this post is the title of this intriguing paper available via SSRN authored by Jeffrey Lin and Joan Petersilia. Here is the abstract:
The California correctional system is undergoing a dramatic transformation under Assembly Bill 109 (“Realignment”), a law that shifted responsibility from the state to the counties for tens of thousands of offenders. To help manage this change, the state will distribute $4.4 billion to the counties by 2016-2017. While the legislation directs counties to use these funds for community-based programs, counties retain a substantial amount of spending discretion. Some are expanding offender treatment capacities, while others are shoring up enforcement and control apparatuses.
In this report we examine counties’ AB 109 spending reports and budgets to determine which counties emphasize enforcement and which emphasize treatment. We also identify counties that continue to emphasize prior orientations toward punishment and counties that have shifted their priorities in response to Realignment. We then apply quantitative and comparative methods to county budget data to identify political, economic, and criminal justice-related factors that may explain higher AB 109 spending on enforcement or higher spending on treatment, relative to other counties.
In short, our analysis shows that counties that elect to allocate more AB 109 funds to enforcement and control generally appear to be responding to local criminal justice needs, including high crime rates, a shortage of law enforcement personnel, and a historic preference for using prison to punish drug offenders. Counties that favor a greater investment in offender treatment and services, meanwhile, are typified by strong electoral support for the Sheriff and relatively under-funded district attorneys and probation departments.