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June 6, 2015

"Ditch the Geezer Judges" ... and consider RoboJudges?

The title of this post is the headline of this provocative new OZY commentary authored by Shannon Sims. Here are excerpts: 

Nobody said life is fair, but here’s a fair question: Why are so many judges so old? Here’s another: Should they be?

Conventional wisdom has it that wielding the gavel takes years upon years of lawyerly practice. Judging by that standard, the U.S. federal bench must be very effective, indeed: About 12 percent of the nation’s 1,200 federal judges are 80 or older, according to a 2010 survey by ProPublica.  Eleven were over the age of 90, almost three times as many 20 years before.  Other things that happened over those 20 years: the Internet. Plus smartphones, Twitter, Facebook, hacking, legal weed, etc., etc., etc.  Plus dementia and senility, for some. On issues of the day, like privacy or hacking, can older judges possibly keep up?

Unsurprisingly, the judges themselves have excellent arguments why age rules.  Richard Posner, a relatively spry 76, argues that it has to do with the American common law system, which is based on precedent: “The more a judicial system adheres to stare decisis (precedent), the older its judges will be on average,” he writes in his book Aging and Old Age.  Judge Posner may well be right — we don’t much want to get into an argument with a man who’s been throwing down from the 7th Circuit since we were a fetus — but we must point out another, far more prosaic reason our federal judiciary is so old: Federal judges have lifetime tenure. And in jurisdictions where judges face mandatory retirement at, say, 70, they’ve mounted campaigns to raise the limit to 80, citing their experience and a huge case backlog.

But why not have younger judges fill the gap? For years, in jurisdictions from India to France to Brazil, you could go straight from law school to a judgeship. Pass the judge test? You’re in. In Brazil, for example, meeting a 20-something judge in the streets at Carnaval is still not particularly remarkable.  We couldn’t say the same for most of our bench, save for, of course, the Notorious R.B.G. It’s true that in civil law countries, judges need not have years of experience in case law to draw an informed decision — they just consult the legal code. But even so, it’s worth remembering that even in our common-law system, clerks — recently graduated from law school — draft opinions. Why wouldn’t a few years of such intensive training compensate for the absence of life years?

Would younger judges be better?  Emanuel Bonfim, a Brazilian magistrate judge, says young blood “oxygenizes the system and lends a multigenerational dynamism to the judiciary.” He should know: He became a judge at just 23.  Today, he’s the president of the association of magistrate judges of the state of Pernambuco at 46, an age that he points out “would only mark the beginning of a judicial career in the U.S.” In countries dogged by corruption like Brazil, young judges might offer another benefit: Ostensibly, they’re more independent.

I have now updated the title of this post based on another provocative new OZY commentary, this one authored by Sean Braswell and headlined "All Rise for Chief Justice Robot!" Here are excerpts:

[W]ith the Supreme Court about to issue its long-awaited decisions on gay marriage and Obamacare, the question is, will we be rising for Judge Robot, instead of Justice Roberts, someday? After all, if being an appellate judge, as Roberts suggests, is really just a matter of calling balls and strikes — interpreting a statute, reasoning from precedent, or applying the law in a limited, mechanical fashion — then the gig looks increasingly ripe for automation, something that could be performed better by a computer, and without political or personal bias, age or infirmity, or ugly confirmation battles.  Other professions, from factory workers to stockbrokers, have learned that the better the world gets at simulating the outcome of your labors, the more redundant you start to appear.  Could the nation’s highest court, along with any appellate court charged with reviewing the application of the law instead of determining the facts, be fairer and more faithful to our founders if a modern-day version of HAL were striking the gavel?...

[W]hat Roberts’ umpire metaphor and other confirmation performances really appeal to is the public’s fear of bias — a desire to constrain judicial discretion and ensure neutrality as far as possible.  Thomas Jefferson himself shared this fear; he advocated ending “the eccentric impulses of whimsical, capricious designing man” and letting “the judge be a mere machine.”...

Whatever your constitutional philosophy, Justice Robot offers the promise of justice that is truly blind, that objectively applies the law equally to all citizens without error, bias or ideology. And yet, the question lingers.  Even if we are capable of building a judge that is, in Jefferson’s words, a “mere machine,” do we really want to?

June 6, 2015 in Who Sentences? | Permalink | Comments (13)

How has, can, should and will marijuana reform impact the work of defense attorneys?

The question in the title of this post is the central topic of a presentation I am honored to be giving today at the Cuyahoga Criminal Defense Lawyers Association's annual meeting.  

As is often true when I speak to a group of experienced defense attorneys, I expect I will learn more from the assembled participants than I am likely to teach them.  But, in part because Ohio has not (yet) reformed its marijuana laws in any way, I am cautiously hopeful I can give the group some useful insights about the inevitability of legal and practical uncertainties, especially in the criminal law arena, as to what really happens in a state after it formally repeals blanket marijuana prohibition in some way.

Based on case rulings, policy reports and conversations with lawyers in the field in states like Colorado, I have a general sense of various possible answers to the multi-dimensional query in the title of this post.  But I would be especially eager to hear from any and all persons in reform states if they have distinctive experiences or thoughts in reaction to my question.

Cross-posted at Marijuana Law, Policy and Reform

June 6, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

June 5, 2015

Former Pardon Attorney: "A Modest Proposal to Expedite the Administration's Clemency Initiative"

Love_margaret_02_crop2_MA31053191-0003Regular readers know I have given lots of space this week to coverage and criticism of federal clemency efforts.  I am pleased to continue now with a guest post via former Pardon Attorney Margaret Love, which she sent my way under the title "A Modest Proposal to Expedite the Administration's Clemency Initiative":

Mark Osler’s post in this space on June 4 ("Another View on Clemency Project 2014") recounts his unsuccessful efforts several years ago to persuade the Administration to establish a presidential commission, similar to the one that handled cases of Vietnam draft evaders and deserters during the Ford Administration, to review and recommend clemency relief for the thousands of prisoners serving prison sentences imposed more than a decade ago that are now generally considered far too severe.  He suggests that the reason the Administration chose not to follow this path relates to its doubt that Congress would fund such an effort. Instead, the Justice Department chose to address the problem of excessive sentences by asking a consortium of private organizations to manage it through the volunteer efforts of the private bar.

We will never know whether Professor Osler’s commission idea would have worked, or whether lack of funding was the reason it was rejected.  But it does appear that the structure put in place instead to manage the Administration's clemency initiative has (in his words) “struggled with the overwhelming number of cases (over 30,000) referred to it.”

It did not help that the Administrative Office for U.S. Courts sharply limited the role that Federal Public Defender Organizations could play in the clemency initiative, by declaring that CJA funds could not be spent on clemency representations.  Many, including myself, believe that the sentencing expertise and advocacy of the Federal Defenders is critical to implementing the sort of large scale program of sentence reduction the Administration evidently had in mind.

But there is another approach that might have been taken by the Administration that would have ensured a central role for the Federal Defenders.  This approach, which might still be taken, would make extraordinary sentence reduction the responsibility of the federal courts as well as of the President.  Bringing cases back to court would not require new legislation or new funds, since there is already on the books a judicial sentence reduction authority that could achieve the same result as executive clemency, through court proceedings where CJA appointments are clearly authorized.  And, because a large scale sentence reduction program is already underway in the federal courts, economies of scale are possible.

Specifically, 18 U.S.C. § 3582(c)(1)(A)(i) provides that a court may at any time reduce a sentence upon motion of the Bureau of Prisons for “extraordinary and compelling reasons.” The Sentencing Commission is authorized under 28 U.S.C. § 994(t) to establish policy for courts considering BOP motions under § 3582(c)(1)(A)(i), which it has done under USSG ¶ 1B1.13.  Under this policy guideline, “extraordinary and compelling reasons” that may justify sentence reduction include terminal illness, a physical or medical condition that diminishes a person’s ability to provide self-care in a prison environment, the death or incapacitation of a child’s only caregiver, and any other reason that may be determined to be “extraordinary and compelling” by the Director of BOP. It is noteworthy that several of the organizations represented on the Clemency Project 2014 steering committee are on record with the Sentencing Commission as favoring a more expansive menu of “extraordinary and compelling reasons” warranting sentence reduction, including one that now seems prescient: “the defendant would have received a significantly lower sentence under a subsequent change in applicable law that has not been made retroactive.”

Less than two years ago BOP issued a new policy statement with a list of circumstances in which it may seek a sentence reduction, a list that is evidently not intended to be exhaustive. See Program Statement 5050.46, as amended (August 12, 2013).  Accordingly, there is no reason why BOP could not determine, with or without an amendment to ¶ 1B1.13, that “extraordinary and compelling reasons” exist in any case meeting the criteria set forth by the Deputy Attorney General as warranting a grant of clemency. The coincidence of the standards in the two contexts would be particularly fitting in light of the fact that the judicial sentence reduction authority in § 3582(c)(1)(A)(i) was originally enacted in 1976, at the Justice Department’s instance, to expedite sentence reductions that previously had required a clemency application to be submitted to the President through the Office of the Pardon Attorney.

There are in addition other reasons why it would be appropriate to supplement the clemency initiative with a statutory sentence reduction initiative implemented through the courts, including a general preference for a judicial decision-maker under federal sentencing law and policy, and for a congressionally authorized approach over an extra-legal use of executive power. Most scholars agree that clemency ought always to be a second choice where the law provides a remedy for sentencing unfairness or undue severity, as it does in this case.  See, e.g., Daniel J. Freed & Steven L. Chanenson, Pardon Power and Sentencing Policy, 13 Fed. Sent. Rptr. 119, 124 (2001) (“Wherever a rule can be structured to guide the discretion of judges or administrative agencies in determining – with reasons – whether to mitigate the sentences of similarly situated offenders, we think such a system should ordinarily be accorded priority over one that relies exclusively upon the unstructured, unexplained discretion of a president to grant or deny individual pardons or commutations.”)

Traditionally, the Federal Defenders have played a central role in proceedings involving judicial consideration of sentence reduction under § 3582(c)(2) where guideline ranges have been lowered, even though there is no constitutional right to counsel in such proceedings.  They are key players in the massive effort to reduce sentences now underway under the so-called “Drugs Minus Two” guidelines amendment. There is no reason why the Defenders should not play a similar role in judicial sentence reduction proceedings under § 3582(c)(1).  There does not appear to be any relevant difference between the two types of proceedings as far as the discretionary appointment power in 18 U.S.C. § 3006A(a)(2) is concerned. In the interests of judicial economy, these proceedings might even be combined.

All it would take to make this happen would be a resolve on the part of the Department of Justice to use this statute for the purpose it was originally intended.

Augmenting the Administration’s sentence reduction program through broader use of a judicial sentence reduction mechanism, which the Justice Department’s own Inspector General has repeatedly criticized as underutilized (most recently for aging prisoners), would accomplish the Administration’s goals in reducing unduly severe sentences, while at the same time regularizing sentence reduction through the courts pursuant to statute.  It would put sentence reduction on a sounder long-term footing that is more consistent with the principles of determinate sentencing, be more predictable and accountable as a practical matter, and respond to any concerns about the unaccountable use of executive power.

Many years ago, when I was serving as Pardon Attorney, then-Deputy Attorney General Philip Heymann asked me why we should ask the President to commute the sentence of an elderly prisoner when (he said) "we can do the job ourselves."  Now I would ask the new DAG the same question.

Some prior related posts:

June 5, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Q: What do the Hamilton County Prosecuting Attorney and the Vicente Sederberg Professor of Marijuana Law and Policy have in common?

A: They are both featured speakers at the Ohio Marijuana Policy Reform Symposium taking place June 11, 2015 at The Ohio State University.

As I have noted before, my own Ohio has lately become a hot state for dynamic conversations about marijuana reform.  And I have had the honor and privilege of helping bring together an interesting groups of speakers for what should be an informative and interest event next week at my own Moritz College of Law. This registration page provides more information about some of the speakers and provides a brief preview:

The Marijuana Policies of Ohio Taskforce, chaired by Hamilton County Prosecutor Joe Deters, will present the findings of its comprehensive research at a symposium on June 11 hosted at The Ohio State University Moritz College of Law. The Taskforce’s research report assesses and analyzes proposed marijuana legalization initiatives in four key areas - public safety and law enforcement, the economy, public health, and regulatory impact. The symposium will also include a panel discussion with national recognized experts in marijuana policy and law.

A press briefing will precede the event. For more information, please contact Kathy Berta at kathy @ rstrategygroup.com 

As of this writing, there is no charge for attending this event, but space in the auditorium can get limited so I highly encourage everyone interested in attending to pre-register via this webpage ASAP.

June 5, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

Imagining a domestic Marshall Plan to rebuild communities after ending the drug war

For many reasons, it is way too early to say the long national war on drugs is over or even that there has been a significant retrenchment of the war at the federal level.  Nevertheless, given the apprarent waning public support and clearly waning criminal justice resources being devoted to this war, it is not too early to start making plans for how best to frame national, state and local policies and priorities when this war ends.  To that end, I have been talking up in some of my classes and lectures the idea of a "Marshall Plan" afte the drug war, and I was pleased and excited when visiting Harvard Law School a few months ago to leasr that some others were thinking along these lines as well.

In particular, David Harris and Johanna Wald, who help run the Charles Hamilton Houston Institute for Race and Justice at Harvard Law School, have robustly embraced the notion of a modern domestic Marshall Plan as evidence by this new op-ed they authored for the Boston Globe. The piece is headlined "Proposing a Houston/Marshall Plan for domestic policy," and here are excerpts:

On June 5, 1947, Secretary of State George Marshall spoke to a crowd of 15,000 at Harvard University’s commencement. In a surprise announcement, he unveiled plans for the United States government to rebuild a Europe devastated by almost a decade of war. In simple straightforward language, he declared that this massive effort — which came to be known as the Marshall Plan — “is directed not against any country or doctrine but against hunger, poverty, desperation and chaos...” The Marshall Plan is largely credited with restoring confidence and hope along with local economies in Europe. It remains a testament to the power of American fortitude and ingenuity.

Sixty-eight years later, Marshall’s words carry a surprisingly potent punch — albeit in response to a very different kind of “war”; one that we have been waging for decades against our own communities of color. During the past year, the curtain has been pulled back, revealing the maze of punishment, fear, and surveillance that traps so many individuals, particularly young men, living in these communities. They attend underresourced schools that expect them to fail and drop out. Police function as a hostile, occupying force, frequently hunting them down, and subjecting them to humiliating arrests and stop-and-frisk practices. They even lack recreational outlets....

Make no mistake about it. These communities did not simply “evolve.” They exist in their current state because of very deliberate educational, transportation, housing, and economic policy choices. These include investing in highways over subways, creating policies that transfer good jobs to areas beyond the reach of public transportation, redlining practices that keep families of color from moving into higher opportunity neighborhoods, and allocating scarce education dollars on surveillance and police rather than on libraries and laboratories. Each choice closes off one more exit out of the maze, and keeps residents stumbling into dead ends.

“The remedy lies in breaking the vicious circle,” stated George Marshall in the speech. Indeed. We propose to create a new Houston/Marshall Plan (named after civil rights giants Charles Hamilton Houston and Thurgood Marshall), focused on helping communities restore themselves after decades of intentional disinvestment.  This new Houston/Marshall Plan will advance strategies, innovations, and solutions designed by those living and working in these neighborhoods.  It is their voices that have been routinely ignored or silenced in public policy discussions.  It will promote public health perspectives that favor recreational, day care and health centers, diversion programs that allow mothers to stay with their children, treatment for addictions, and job training instead of more police, more prosecutions, and more prisons.  It will highlight promising models for building affordable housing units near these jobs, and for creating school cultures that expect students to succeed instead of treating them like criminals-in-waiting.  For those who decry the costs of this rebuilding, we point to the economic and public safety benefits that all of us will reap from investments in communities and lives too long neglected.

June 5, 2015 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Is Missouri becoming the "new Texas" when it comes to death penalty administration?

Enhanced-27540-1433442100-4The question in the title of this post is prompted by two notable new stories showing some notable new details about how the Show Me state (1) has recently become a new national leader in actually carrying out death sentences, and (2) now seems well positioned to complete more executions in the near future than any other state.  This lengthy Mashall Project piece focused on capital defense in Mizzou provides this background: 

[Jennifer Herdon's] condemned clients were convicted of monstrous crimes, but at least a few presented powerful issues for appeal. Among them were a man diagnosed as schizophrenic who hallucinated clouds of flies and insisted on never speaking aloud the number “between 31 and 33”; a man so intellectually impaired that, as a child, he couldn’t understand hide-and-seek and who, at age 16, functioned like someone age 4-to-7; and a man whose claim of innocence was sufficiently compelling to convince a journalism class to dive into the case.

In the past two years, while much of the country has retreated from the death penalty, Missouri has gone the opposite direction. It has accelerated executions – last year, tying Texas for most in the country, with 10 – to such an extent that the “capital defense bar is in crisis,” according to a letter written to the Missouri Supreme Court by four members of an American Bar Association death-penalty assessment team.

Those four members – two law professors, a retired state appellate judge, and the chairman of the Missouri State Public Defender Commission – wrote in March that a mere “handful” of attorneys have represented most of the state’s executed inmates, despite the “notoriously lengthy and complex” nature of capital appellate work, coupled with “the emotional toll of losing client after client.” The team recommended that for attorneys handling capital appeals to be able to do their jobs adequately, the execution dates for clients should be staggered by at least six months.

Herndon, starting in November 2013, had five clients executed in just 15 months. In all, she’s had seven clients executed since 2003. And she has another execution scheduled next week. Herndon may be the most extreme example of how Missouri’s quickened pace of executions is swamping the defense bar, but she is not alone. Last year, six attorneys in addition to Herndon had multiple clients executed.

That list would have been longer if not for a stay granted by the U.S. Supreme Court before Mark Christeson’s scheduled execution in October. Christeson’s two attorneys, who had represented another inmate executed earlier in the year, missed a crucial filing deadline, not even meeting with their client until six weeks after it had passed. “Cases, including this one, are falling through the cracks of the system,” more than a dozen former state and federal judges wrote in a brief.

Paul Litton, a University of Missouri law professor and one of the four signatories on the letter from the ABA’s death-penalty assessment team, says: “With the executions happening month after month after month, and with so few attorneys handling these cases, the workload is just overwhelming.”

On Tuesday, Herndon and her co-counsel filed a request for a stay of execution for Richard Strong, scheduled to be executed June 9. The motion’s basis was their workloads, in particular Herndon’s. The motion says that when Herndon’s last client was executed in February, she put in more than 225 hours, “knowing that much more should have been done …” For the pending execution, she has 20 banker’s boxes of materials to review. Herndon “is struggling to fulfill her duties,” the motion says.

“Mr. Strong is at least entitled to a ‘fair fight.’  Such is impossible when defense counsel come in bloody and bruised, while the government has a seemingly endless supply of fresh reinforcements …,” the motion says.

Meanwhile, as now highlighted by this notable new Buzzfeed article (from which I got the graphic here), it would appear that Missouri has figured out some way to get all the execution drugs they could possibly need even as other states struggle mightily in this arena. The Buzzfied piece carries this full headline: "Missouri Is Mysteriously Building A Massive Stockpile Of Execution Drugs: Missouri now has enough drugs for 16 lethal injections. But how? The drugs often used in executions generally have a short expiration date." Here is an excerpt:

State officials changed drug suppliers in February 2014, after their previous supplier, the Apothecary Shoppe, was sued for, among other things, selling execution drugs when it wasn’t licensed to do so in Missouri. Until February 2014, Missouri’s drug stockpile hovered around zero, presumably because the compounded drugs expired so quickly. Since changing drug suppliers, however, the state’s drug supply has exploded, according to records obtained by BuzzFeed News.

With FDA-approved suppliers either discontinuing the manufacture of pentobarbital or enacting stringent guidelines to prevent states from getting ahold of their drugs, it led some capital attorneys to believe the state is resorting to veterinary pentobarbital — something that would be much easier to find, but illegal to use on humans.

When two attorneys, Cheryl Pilate and Lindsay Runnels, approached the Department of Corrections, officials refused to say whether the drug is veterinary. “The response has been very evasive,” Pilate said. “We made several requests about the use of veterinary drugs, and instead of getting the response of “Of course we would never use a veterinary drugs,” they [were] refusing to say.”

When BuzzFeed News asked the state’s corrections department whether the state is using veterinary drugs in executions, spokesperson David Owen said, “No.” Owen would not answer any questions about how the state could be holding onto drugs for so long, given the short shelf life of compounded drugs. Gov. Jay Nixon’s Office would not answer questions, either, and a spokesperson with Attorney General Chris Koster’s office declined to comment.

“It’s the ease with which they’re getting it,” Pilate said. “Other states are having serious problems getting ahold of their drugs. Why not Missouri?”

June 5, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (10)

"Sex Offender Law and the Geography of Victimization"

The title of this post is the title of this notable paper with important (and suprising) empirical research now available via SSRN.  The piece is authored by Amanda Agan and J.J. Prescott, and here is the abstract (with my emphasis):

Sex offender laws that target recidivism (e.g., community notification and residency restriction regimes) are premised — at least in part — on the idea that sex offender proximity and victimization risk are positively correlated.  We examine this relationship by combining past and current address information of registered sex offenders (RSOs) with crime data from Baltimore County, Maryland, to study how crime rates vary across neighborhoods with different concentrations of resident RSOs.

Contrary to the assumptions of policymakers and the public, we find that, all else equal, reported sex offense victimization risk is generally (although not uniformly) lower in neighborhoods where more RSOs live.  To further probe the relationship between where RSOs live and where sex crime occurs, we consider whether public knowledge of the identity and proximity of RSOs may make offending in those areas more difficult for (or less attractive to) all potential sex offenders.  We exploit the fact that Maryland’s registry became searchable via the Internet during our sample period to investigate how laws that publicly identify RSOs may change the relationship between the residential concentration of RSOs and neighborhood victimization risk.  Surprisingly, for some categories of sex crime, notification appears to increase the relative risk of victimization in neighborhoods with greater concentrations of RSOs

Though I cannot readily assess the underlying empirical research in this paper, I can find remarkable the apparent findings that one is generally safer, at least statistically speaking, living in a neighborhood with more registered sex offender without having notification of that fact. In other words, the empirical work in this paper seems to truly support the aphorism "ignorance is bliss."

June 5, 2015 in Data on sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (4)

June 4, 2015

Latest polling data shows diminished death penalty support

This new ABC News article, headlined "New Low in Preference for the Death Penalty," reports on the lastest interesting poll data concerning death penalty views. Here are the details:

A majority of Americans favor life imprisonment without parole over the death penalty for convicted murderers, a first in ABC News/Washington Post polls. Given a choice between the two options, 52 percent pick life in prison as the preferred punishment, while 42 percent favor the death penalty - the fewest in polls dating back 15 years....

Without an alternative offered, 61 percent continue to support the death penalty, matching 2007 as the fewest in polls back to the early 1980s. That's down sharply from 80 percent in 1994. Clearly there's remaining ambivalence; when offered the option of life imprisonment with no chance of parole, 29 percent of death penalty supporters prefer the alternative....

Support for the death penalty is higher in the 32 states that have it, 64 percent, vs. 54 percent elsewhere. In a wider gap, people in death-penalty states divide about evenly in their preference for capital punishment vs. life without parole, while in other states life imprisonment is preferred by a 20-point margin....

Views on capital punishment range among groups. Fifty-six percent of women support the death penalty, rising to 66 percent of men. And women prefer life in prison to the death penalty by 57-37 percent, while men are evenly divided.

There's also a vast gap by race; whites are more likely than nonwhites to support the death penalty, and to prefer it over life in prison, by 23- and 22-point margins. The gaps are widest comparing whites to blacks, a group that's generally skeptical of the criminal justice system. Their support for the death penalty is lower than that of any other group.

Among other groups, support for the death penalty peaks among evangelical white Protestants and Republicans, at eight in 10 each, dropping to 47 percent among Democrats. It's 20 points higher among conservatives than liberals. Preference for capital punishment over life in prison follows similar patterns, peaking at 65 percent among evangelical white Protestants (vs. 36 percent of their non-evangelical counterparts). It's 30 points higher among Republicans than Democrats, and 25 points higher among conservatives than liberals.

June 4, 2015 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (6)

Rounding up recent posts of note from Marijuana Law, Policy and Reform

I am likely to be off-line from much of the rest of today because of the official start of an unofficial holiday weekend in my neighborhood.  So while I am spending some time watching the world's best players on well-manicured grass, readers interested in reform developments surrounding another type of grass might want to check out some recent posts of note from Marijuana Law, Policy and Reform. Here is an abridged listing of MLP&R posts that might be of special interest to sentencing fans: 

I have highlighted the last two items on this list because I continue to believe Ohio is going to be an especially exciting state to watch closely in the next few months. And I think the "Ohio Marijuana Policy Reform Symposium" taking place at The Ohio State Moritz College of Law a week from today is likely to advance in a thoughtful way the dynamic conversations about marijuana reform now taking place in the Buckeye State.

June 4, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

"Shining a Light on Overcriminalization"

The title of this post is the title of this notable new "Backgrounder" from The Heritage Foundation authored by Jordan Richardson.  Here is the abstrat:

Overcriminalization — the overuse or misuse of the criminal law to address societal problems — manifests itself in a variety of ways, including overly broad definitions of criminal acts, excessively harsh sentencing, and criminal sanctions for simple mistakes or accidents under a theory of strict liability.  However, overcriminalization has a more tangible aspect beyond legislation and legal theory: American citizens all too often find themselves trapped by the very system that they assumed existed for their protection and prosecuted for crimes that most people would not even recognize as criminal offenses.

Criminal justice reform is about more than policy debates in Congress or legal procedure; it is about how the lives and fortunes of ordinary Americans are threatened by abuse of the law.  Only by identifying the problem and highlighting why it matters will any meaningful change take place.

June 4, 2015 in Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (1)

Professor Mark Osler's informed perspective on recent federal clemency developments

09fbbcfProfessor Mark Osler is rightly considered one of the most informed and effective sentencing reform advocates, especially in the arena of clemency.  Thus I was very pleased when he wrote to me as a follow-up to my recent posts about recent federal clemency developments and provided some lengthy reflections he has titled "Another View of Clemency Project 2014."  Here are Mark's informed and important insights: 

In the fall of 2012, I gathered together four students, a passel of handwritten letters pleading for help, and a bunch of Margaret Colgate Love articles and created the nation's first clinic focused on federal commutations. The project has turned out to be wonderful as a teaching model; my students get to learn the core legal skill of building a narrative and advocating for a client in a process relatively free of procedural snares. It also has propelled me into the simmering debate over the Obama administration's clemency policy.

Of course, for most of the Obama presidency it wouldn't be very accurate to call the way clemency was handled as a "policy." For the most part, it appears, they simply lopped over the failed guidelines and rules of his predecessor rather than work to revive this key Constitutional power. This failure represents a troubling lack of focus in a president who (1) has properly decried the disparate incarceration of black men through the War on Drugs, and (2) came to politics as a Constitutional Law professor.

At the same time I was starting my clemency clinic, I also began to advocate for a vigorous, short-term project to use the pardon power to help those prisoners serving long sentences under mandatory minimums and sentencing guidelines on crack cocaine that were amended in 2010, but not made retroactive. With Nkechi Taifa and others, I met four times with administration officials and urged them to follow the example of President Ford, who granted clemency to nearly 15,000 Vietnam-era draft evaders and deserters in just one year. Ford did this by convening a special commission outside of the Justice Department, and that commission left behind a remarkable report full of good advice. I even left a copy of the Ford Presidential Clemency Commission Report with those Obama advisors after a meeting in the Vice President's imposing office in the Eisenhower Building.

The Obama administration did not take our advice, but they did announce a very different short-term commutation initiative -- the Clemency Project 2014, which put in the hands of five non-profit groups the shepherding of worthwhile cases towards clemency. My hunch -- and it is only a hunch -- is that this course was chosen because the administration did not think that it could get the money needed to fund a Ford-style Clemency Board through the House of Representatives. The recent Marino Amendment (which seeks to bar the use of funds for the Clemency Project 2014 or for augmenting the Pardon Attorney's office) passed by the House on June 3rd shows that there was a sound basis for that fear.

As has been well-documented, the Clemency Project 2014 has struggled with the overwhelming number of cases (over 30,000) referred to it. If there is blame in that, I should share it. Though I am not affiliated with any of the five groups in charge, I have taken an active role in training pro bono lawyers for Clemency Project 2014, have tried to rally other law schools to the cause, and have taken on several cases myself. Obviously, the structure of this project is not the one I proposed, but it is the one that we have, and through the end of the Obama administration probably represents the best chance for a historic use of the pardon power by this President. It is unlikely that this administration will suddenly — in the next year and a half — repair its relationship with the House to the point where new funding for clemency reform can be found. The toxic dynamic that probably skunked my proposal is still at work.

Professor Berman has suggested that wealthy clemency proponents like the Kochs could go far in re-making the process if they were to invest their money in reform. I think he is right. There are two areas where those resources could be used efficiently. The first is by investing in the debate over who should be the next president. Sadly, we only talk about clemency in the political realm when it goes wrong (i.e. in the last days of Bill Clinton's presidency or Haley Barbour's governorship). We should be actively asking candidates what they would do with clemency when they are running for office, and urging them towards reform. Rachel Barkow and I have, for example, argued that the next administration should shift permanently to a process centered on a review board outside of the Department of Justice, and others have promoted similar ideas. The "Supernova Federal Clemency Institute" research group Professor Berman proposes is worthwhile — but probably most worthwhile (especially with Koch backing) if it is focused on the 2016 election and the first days of a new presidency.

Beyond that advocacy, it would be wise to devote private-funding resources to the Clemency Project 2014 itself, in two ways. First, the project has a devoted and talented but threadbare staff, and that has a cost. There are few resources available to CP14 to screen cases before sending them out to lawyers, for example, and that is a problem that can be solved with money and more bodies. Second, it would help to have full-time lawyers working as advocates on these cases as specialists, as they would be much more efficient than the pro-bono generalists who often have to learn federal sentencing law from scratch. In collaboration with NYU's Center on the Administration of Criminal Law and others, I am working to do exactly that. The more money we raise, the more lawyers can be hired. But... it has to happen fast. The window is closing, and the election season is already upon us.

Some prior related posts:

June 4, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

June 3, 2015

Spotlighting significant back-end impact of Prop 47 sentencing reform in California

This notable recent Los Angeles Times article, headlined "Under Prop. 47, former felons find themselves shedding a stifling label," details a significant (and perhaps unexpected) back-end effect of the sentencing reform California voters put in place the last election cycle. Here are excerpts:

Proposition 47, an initiative that reduced drug possession and several other nonviolent felonies to misdemeanors ... has prompted the release of more than 3,700 inmates from state prison.

Opponents of the measure said it would make California's streets more dangerous by releasing criminals and would strip away much of the incentive that got people into drug treatment — keeping a felony off their record.  But another part of the law that drew less attention allows people who have already served their time to ask a court to reduce years-old convictions from felonies to misdemeanors.

Thousands of people ... have taken advantage. Since the measure passed, judges in Los Angeles County have received more than 6,660 applications to reduce old felonies to misdemeanors.  Los Angeles County estimates that as many as 300,000 applications could be filed in cases stretching back decades.  (A spokeswoman for the court said officials are not tracking the outcomes of the applications.)

Alhambra Police Chief Mark Yokoyama, president of the California Peace Officers' Assn., which lobbied against the measure, said he's not opposed to people with an old felony or two getting reductions if they've turned their lives around.  He likes that they have that option, he said, but he thinks only a small sliver of the population with felony records falls into that category.

Christine Ward, executive director of Crime Victims Action Alliance, another opponent of the law, said reducing old felonies undermines accountability for offenders. "In our state right now," she said, "we're really minimizing criminal behavior."

But others say the law helps people who are now law-abiding eliminate the barriers of a felony record.  For [some], being labeled a felon affected [doing their] job.  For others, it held them back from getting work or housing. Some say it prevented them from getting custody of their grandchildren.  And many agreed the stigma of a "felon" label felt stifling....

From a back office in the Compton courthouse, Deputy Public Defender Carole Telfer runs a one-stop shop for people looking to reduce their felonies under the ballot measure.  Light pink memo notes — all scribbled with phone numbers and nearly identical "Call re: Prop 47" messages — explode from a green shoe box on her desk.  Nearby, there's a brown accordion folder filled with prisoners' handwritten letters....

Even people who aren't eligible for early release under Prop. 47 are grateful, Telfer said, calling it one of the most rewarding assignments in her 35-year career as a public defender.

After the measure passed, Telfer began with the cases of people still behind bars on charges eligible for reduction. But it was often people with decades-old convictions ... who were most anxious to get through the process. They often call to tell her how eager they are to put the felonies — crimes committed by someone who no longer felt like them — behind.

June 3, 2015 in Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (0)

Notable application of Padilla by Fifth Circuit even after judicial deportation warning

The Fifth Circuit yesterday in US v. Batamula, No. 12-20630 (5th Cir. June 2, 2015) (available here), engaged in an extended and interesting discussion of a Padilla claim. The opinion's conclusion highlights why Padilla fans will also like this panel ruling:

For these reasons, we conclude that a judge’s statement at the guilty plea proceeding that deportation is “likely” is not dispositive of whether a petitioner whose counsel failed to advise him regarding the immigration consequences of his plea can demonstrate prejudice as a result therefrom.  Batamula thus is not foreclosed from challenging his guilty plea under Padilla solely because the district court notified him that deportation following the service of his sentence is “likely,” and the district court erred in holding to the contrary. The record is currently insufficiently developed for us to apply the fact-intensive, totality of the circumstances prejudice analysis necessary to determine whether Batamula is entitled to relief on his Sixth Amendment claim.  We therefore REVERSE and REMAND for further proceedings consistent with this opinion.

June 3, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"Bifurcation Nation: Strategy in Contemporary American Punishment"

The title of this post is the title of this notable new paper by Christopher Seeds now available via SSRN. Here is the abstract:

Important recent work by penal scholars recognizes the need to study the interplay between federal and state initiatives and between state and local structures.  But the sociology of punishment has been less cognizant of late of the importance of studying the relation between the divergent treatment of high-level and low-level offenses and offenders as a means of understanding those federal, state or local approaches to penality. By one conventional view, the divergent policy trends for violent and nonviolent offenders are unrelated operations working at different ends of an ambivalent carceral spectrum; by another emergent perspective, the increasing decarceration of low-level offenders marks a general shift away from mass incarceration that has yet to extend to serious offenders and offenses.

This paper suggests that, rather than a unidirectional force or mere ambivalent mix of old and new, contemporary sentencing policy is better understood as a bifurcation strategy — one that responds uniquely to the new dilemmas and new constraints presented by a moment we might call, with cautious optimism, late mass incarceration.

June 3, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (0)

New Deputy AG suggesting every too-long federal prison sentence hurts public safety

This recent NPR piece, which provide a mini-profile on the new Deputy Attorney General, Sally Yates, has a headline and some quotes that might be effectively utilized by defense attorneys to argue that any unduly long federal prison sentence damages national public safety.  The piece is headlined "No. 2 At Justice Warns Growing Prison Budget Detracts From Public Safety," and here are excerpts:

Prosecutors usually spend their energy putting criminals behind bars — not urging their release. But racial disparities in the system and the huge costs of locking up so many people are pushing some government officials to call for a new approach. One of them is the woman who now runs day-to-day operations at the Justice Department. Sally Yates says she's hardly soft on crime: "I'm a career prosecutor."...

"I've been at this for 27 years now," Yates says. "I believe that it's really imperative that we do everything we can to keep our communities as safe as possible but to do that in a way that is just and fair."

The Senate confirmed Yates last month as deputy attorney general. She's using her new platform as the second in command at the Justice Department to warn the expanding prison budget has begun to threaten public safety.

The federal government spends $7 billion a year to incarcerate about 200,000 inmates. That's money she says that could pay for more FBI agents and local police. "We know that it's the cop on the street that's one of the most important things to be able to keep our communities safe. But yet over the past decade, there's been a 40 percent reduction in the grant money that's available for cops on the street," Yates says.

New Justice Department estimates obtained by NPR suggest the situation will only get worse over the next decade. If nothing changes, the projections say authorities will need to take tens of millions of dollars that could have been devoted to community policing and local law enforcement, and instead, pour that money into federal prisons. "It is simply not sustainable for us to continue at the present rates that we are now of our incarceration levels," she says.

Yates is taking that message to Capitol Hill. She wants members of Congress to dial back long mandatory prison sentences for nonviolent drug criminals. Red States like Texas and Georgia launched efforts to overhaul their justice systems years ago. Now a left-right coalition of groups from the ACLU to Koch Industries is advocating for a smarter approach at the federal level too....

The Obama administration says it has reduced both the violent crime rate and the number of people going to prison. Former Attorney General Eric Holder, one of Yates's main supporters, crowed about the data in a speech last year: "This is the first time, the first time that these two critical markers have declined together in more than 40 years."

June 3, 2015 in Federal Sentencing Guidelines, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

June 2, 2015

California agrees to model new lethal injection protocol on whatever SCOTUS says is good enough

As reported in this local piece, headlined "California death penalty: state agrees to propose execution method,"  a state with a remarkable inability (and disinclination?) to get its machinery of death operational has now agreed that the Supreme Court's latest review of lethal injection will provide a script for its next efforts.  Here are the details:

California's death penalty system, dormant for nine years, might soon move slowly toward resuming executions. As part of a court settlement reached on Tuesday, the state's corrections department agreed to unveil a new execution method by the fall that will be tied to the outcome of a U.S. Supreme Court ruling expected sometime this month in a challenge to Oklahoma's lethal injection protocol.

While California is still far from executing one of the 750 condemned killers on death row, the development marks movement on the issue for the first time in years. There are at least 17 inmates on death row who have exhausted their legal appeals and would be eligible for execution dates.

State prison officials resolved a lawsuit filed last year by the families of victims of condemned killers who argued the state has a legal obligation to implement an execution method. A Sacramento judge earlier this year found the state should be required to move forward in a case brought by two families, including former UCLA and NFL star Kermit Alexander, whose mother, sister and nephews were murdered 31 years ago by a man now on death row. Death penalty supporters have accused state leaders such as Gov. Jerry Brown and Attorney General Kamala Harris of dragging their feet in getting executions back on track. The state has not had an execution since 2006 as a result of legal challenges to its lethal injection method.

Several years ago, the courts invalidated one state effort to revise its three-drug execution method, prompting California to explore switching to a single lethal drug as other states have done. But the state had not made progress until Tuesday's settlement.

The Supreme Court is expected to clarify the legality of lethal injection methods in the case out of Oklahoma, which still has a three-drug procedure. Deborah Hoffman, spokeswoman for the California corrections department, confirmed that the prison system, which has been developing its regulations, will submit its new execution method within 120 days of the Supreme Court's ruling.

Lawyers for the families said it "made sense" for California to await that ruling. Kent Scheidegger, legal director of the Criminal Justice Legal Foundation, said he expects the state to adopt a single drug method using a sedative he maintains can be obtained. However, states around the country, including California, have encountered problems securing supplies of execution drugs because drug manufacturers have refused to sell the drugs to prisons.

June 2, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (3)

Might Charles Koch put big money behind big reform of federal clemency process?

Post - March 2013 (5)The question in the title of this post is prompted by this notable new USA Today article headlined "Koch urges Obama administration to speed up clemency program." Here are excerpts:

Billionaire industrialist Charles Koch and top officials in his company are calling for the Obama administration to release from prison the thousands of non-violent offenders who qualify for clemency under a Justice Department initiative.  The push to shorten long federal sentences, mostly for drug offenses, has had a sluggish start since it was announced in April 2014. President Obama has commuted the sentences of only a few dozen inmates since the program took effect.

"I'm not faulting the administration," Mark Holden, Koch Industries' senior vice president and general counsel told USA TODAY on Monday. But, he said, "people got their hopes up. Why isn't it going any faster?"

Koch Industries officials did not offer a specific policy changes but hope their statement of unequivocal support for the clemency initiative will focus attention on the program. "When Charles says something … it helps to highlight the issue and bring other like-minded people to the table," Holden said.

Charles Koch, whose multibillion-dollar industrial conglomerate is one of the nation's largest private companies, has an outsize influence in Republican politics. His expansive network plans to spend about $900 million ahead of 2016 elections — about $300 million of which will be spent on electoral politics, he said. Koch also recently told USA TODAY that he might financially support up to five Republican presidential contenders in next year's primary: Wisconsin Gov. Scott Walker, former Florida governor Jeb Bush and Sens. Ted Cruz of Texas, Rand Paul of Kentucky and Marco Rubio of Florida.

"We're going to be supportive of those candidates who are supportive of the issues that are important to us," Holden said Monday, when asked what role the clemency issue might play in the 2016 race. Criminal-justice reform, he said, is a key part of Koch's "freedom framework." Holden noted that Paul and Cruz have pushed for changes to the system. Both have signed on to a Senate bill that would cut mandatory minimum sentences for drug offenses....

Lawyers involved in the clemency initiative say the process has been slowed, in part, because the eligibility standards may be too tough for the inmates to meet. The main targets of the program are drug offenders who were sentenced under a strict crack-cocaine law that was eased by Congress in 2010. To be eligible, inmates must be non-violent offenders who already have served 10 years and would have received shorter prison terms had they been sentenced under today's laws. They also must have a record of good conduct in prison and no significant criminal history....

More than 30,000 federal inmates applied for representation through the Clemency Project 2014, a consortium of legal organizations, including the American Bar Association and The National Association of Criminal Defense Lawyers, that are helping eligible inmates seek commutations.

Justice Department officials did not immediately respond to a request for comment Monday but have said they are likely to recommend more commutations to the White House. The administration also has requested a 66% budget increase for the Justice Department's Office of Pardon Attorney, which reviews the clemency requests.

Holden and Koch Industries spokeswoman Melissa Cohlmia said company officials decided to publicly support the clemency initiative and call for the faster release of inmates after receiving requests both from organizations and individual inmates, seeking Koch support for clemency applications. In a statement, Holden said Koch and the company back both the program and the Obama administration's eligibility criteria. He said the company also would like to see Congress revise more laws to cut prison time for inmates who would have received shorter terms had they been sentenced today.

"Until there is a change in that legal process, we believe that everyone who meets the common-sense criteria set by the Department of Justice should be granted clemency," Holden said in the statement. "We do not believe that keeping these individuals in prison under these circumstances is just nor does it enhance public safety."

I am always pleased to see prominent folks like the Koch brothers, and others who talk prominently about the importance and virtues of freedom, bringing their message to the criminal justice arena and pushing for reforms. I am especially pleased to see Koch Industries prominently "throwing its weight around" in support of more federal clemency grants ASAP. That all said, though, I would really like to see the Koch brothers start prominently throwing some money around to engineer systemic changes to clemency procedures and politics.

Together, the Koch brothers are estimated to be worth $80 billion; a high-profile investment of just, say, .01% of these riches spent on creating and staffing what I might call a "Supernova Federal Clemency Institute" could and would go a long way to transforming the modern clemency conversation.  I am branding this suggested clemency effort on the kind of stellar explosion that briefly outshines an entire galaxy, radiating as much energy as possible before burning out: a "Supernova Federal Clemency Institute," especially if funded by just .01% of the Koch fortune ($8 million), would explode on the clemency scene and could burn very bright for the final 18 months of the Obama presidency.

With $8 million in resources (and perhaps more coming from others committed to personal freedom in the United States), the "Supernova Federal Clemency Institute" could hire and effectively compensate a staff of lawyers, researchers and advocates who surely could produce, perhaps in a matter of weeks, a robust list of meritorious federal clemency candidates.  This imagined "Supernova Federal Clemency Institute" also could work on rentry project for those granted clemency, could produce reports on best-practices in the states, and could make recommendations to the President and to Congress about how best to ensure federal and state clemency procedures are enduringly committed to helping "secure the blessings of liberty to ourselves and our posterity."  

June 2, 2015 in Clemency and Pardons, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)

Spotlighting the role and importance of federal prosecutors in the drug war

Mona Lynch has this notable new op-ed in today's New York Times headlined "Reining In Federal Prosecutors." here are excerpts:

In recent months, police departments and prison systems have been taking heat for the systemic abuses that mar our nation’s justice system. But one key player has been notably absent: For decades, our federal court system has been quietly perpetrating some of the deepest injustices in the name of the war on drugs.

Federal laws passed at the height of our punitive frenzy in the 1980s have been abused by overzealous federal prosecutors to compel guilty pleas and obtain long, unjust prison sentences, especially against black drug defendants. We must rein in these practices if we are to reshape our country’s criminal justice system for the 21st century.

Prosecutors have a number of tools at their disposal, the most powerful of which is the “851,” which can be filed against those with prior drug convictions to at least double mandatory minimum sentences. In the worst case, a 10-year mandatory minimum becomes a life sentence without parole for a defendant with two prior convictions. The 851 statute was passed in 1970 to give prosecutors more discretion to seek harsh sentences against only the most serious offenders, and exempt lower-level defendants. But it has been deployed in exactly the opposite manner.

I have conducted in-depth qualitative research and interviews in four federal districts; in each, the 851 threat loomed for nearly everyone with the eligible prior record. In the words of one of my interviewees, “the 851 is the ultimate lever” used by prosecutors to force a guilty plea. And it almost always worked: Defendants were compelled to waive their rights and plead guilty to ensure that their sentences were not doubled, or worse.... [N]o entity tracks the threat or use of the 851 in drug cases. We do know, however, from qualitative research like mine and recent work by the United States Sentencing Commission that its coercive use has been pervasive.

Data also indicate that mandatory minimums and enhancements like the 851 have been disproportionately used against black defendants. While research shows that illicit drug use and distribution is generally proportionate to the racial makeup of the nation’s population, black people are overrepresented as drug defendants in federal courts, constituting 30 percent of all those sentenced for drug crimes, and a full two-thirds of those who receive life sentences.

Between 1992 and 2012, about 2,300 black men have been sentenced to life for federal drug convictions, 72 percent of whom had asserted their right to trial. While data cannot pinpoint the 851 as the trigger of those life sentences, it does indicate that 96 percent were subject to drug mandatory minimums at sentencing.

Some effort has been made to address the overzealous use of the 851 threat. In 2014, Attorney General Eric H. Holder Jr. directed prosecutors to refrain from using the 851 as a threat or inducement in plea negotiations. But while his directive has clearly changed behavior in some districts, the 851 threat remains alive in others.

As we grapple with the consequences of a three-decade-long law-and-order binge that has disproportionately affected black communities, we must repair the damage done in the past and prevent a repeat in the future. That means revisiting the unconscionably long sentences that keep Brandon and others behind bars for most or all of their lives, and it means removing hammers like the 851 from the prosecutors’ toolbox to prevent their future abuse.

June 2, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

"Managing Collateral Consequences in the Sentencing Process: The Revised Sentencing Articles of the Model Penal Code"

The title of this post is the title of this notable new paper by Margaret Colgate Love now available via SSRN. Here is the abstract:

The debased legal status that results from a criminal conviction makes possible a regime of restrictions and exclusions that feels like punishment to those who are subject to it and looks like punishment to the community.  Policy makers are beginning to understand that the goal of reintegrating criminal offenders into society is not well served by a legal system that makes them permanently ineligible for many of its benefits and opportunities and effectively marks them as social outcasts.  Because courts have failed to address issues of severity and proportionality raised by punitive mandatory collateral penalties, and because legislatures have been unwilling to dial them back in any meaningful fashion, reformers have turned to the sentencing system to restore collateral consequences to an appropriate regulatory role.

One such reform proposal is the American Law Institute’s Model Penal Code: Sentencing (MPC), which integrates collateral consequences into a sentencing system that gives the court rather than the legislature responsibility for shaping and managing criminal punishment in particular cases.  Just as the court decides what sentence it will impose within a statutory range, the court also decides which mandatory collateral penalties will apply and for how long.  This gives sentencing courts new tools to further the rehabilitative goals of sentencing, and at the same time it enables them to avert issues of proportionality an

June 2, 2015 in Collateral consequences, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)

Has anyone systematically studied whether "creative" sentences are more effective than others?

The question in the title of this post is prompted by this new Huffington Post piece headlined "Judge Michael Cicconetti's Unorthodox Sentences Include Walking 30 Miles, Getting 'Pepper Sprayed'." Here are excerpts:

An Ohio judge known for his unusual sentencing methods ordered a woman to walk 30 miles -- the same distance a taxi took her before she skipped out on the fare.  On Thursday, Judge Michael Cicconetti gave Fairport Harbor resident Victoria Bascom the choice to either spend 60 days in the local slammer, or walk 30 miles in the next 48 hours. She chose to walk, according to WOIO.

It was the 18-year-old's punishment for refusing to pay the $100 cab fare from Cleveland to Painesville, according to the News-Herald. She'll also have to pay the cabbie $100 and will be on probation for four months over the misdemeanor theft count.

The same day, Cicconetti gave 19-year-old Diamond Gaston a similarly unusual option after Gaston assaulted a man with pepper spray.  Gaston could see jail time, or could allow the victim to spray him with pepper spray to see how it felt.  Gaston chose pepper spray, not knowing that he'd really be sprayed with a saline solution. The plan was to teach him a lesson.

Cicconetti has been known to hand down eye-for-an-eye sentences to misdemeanor offenders for years. He's been a polarizing figure over the practice, but he told The Huffington Post on Monday that it works. "I would put my recidivism rate up against anybody's," the judge told HuffPost Crime. "You can send someone to jail and make it the sheriff's problem; they get out and nobody follows up. With these sentences, they're on probation, and in most cases, I'll end up taking it off their record."

He said traditional sentencing, especially for first-time offenders, doesn't do much to show defendants the impact of their actions.  Instead, he once ordered a suspect caught speeding in a school zone to be a crossing guard for a shift.  He made a man who called cops "pigs" stand on a street corner with a real pig and a sign that states, "This is not a police officer." He says he even ordered a man who sped past a school bus' flashing red lights to ride a school bus for a day.  

Critics reportedly say Cicconetti is just trying to grab headlines. The judge told HuffPost he'd be happy if that were the case, and would like to see more courts adopt this type of sentencing for first-timers. "These people aren't coming back [into the court system]," he said. "It really works. I started with baby steps, but as I got braver or dumber or crazier, I started handing these sentences down more."

You can't sentence everyone like Bascom or Gaston, he said. He says only "1 percent" of his cases get that type of treatment, and he has criteria for his style of justice: Suspects need to be first-time offenders, generally young and impressionable, and "remorseful for what they did."

June 2, 2015 in Criminal Sentences Alternatives, Who Sentences? | Permalink | Comments (5)

June 1, 2015

"The Missing Statistics of Criminal Justice"

QuestionmarkThe title of this post is the headline of this interesting commentary by Matt Ford in The Atlantic.  The subheadline sets out its themes: "An abundance of data has fueled the reform movement, but from prisons to prosecutors, crucial questions remain unquantified." Here are excerpts:

After Ferguson, a noticeable gap in criminal-justice statistics emerged: the use of lethal force by the police.  The federal government compiles a wealth of data on homicides, burglaries, and arson, but no official, reliable tabulation of civilian deaths by law enforcement exists....

This raises an obvious question: If the FBI can’t tell how many people were killed by law enforcement last year, what other kinds of criminal-justice data are missing?  Statistics are more than just numbers: They focus the attention of politicians, drive the allocation of resources, and define the public debate.  Public officials — from city councilors to police commanders to district attorneys — are often evaluated based on how these numbers change during their terms in office.  But existing statistical measures only capture part of the overall picture, and the problems that go unmeasured are often also unaddressed. What changes could the data that isn’t currently collected produce if it were gathered?

In one sense, searching for these statistical gaps is like fishing blindfolded — how can someone know what they don’t know? But some absences are more obvious than others. Bruce Western, a professor of sociology at Harvard University, cited two major gaps. One is the racial demography of arrests and criminal records....

There may be many missing statistics from the realm of policing, but even greater gaps lie elsewhere.  Thanks to the FBI’s Uniform Crime Reports, police departments might actually be one of the better quantified parts of the criminal-justice system.  Prisons also provide a wealth of statistics, which researchers have used to help frame mass incarceration in its historical and demographic content.  The Justice Department’s Bureau of Justice Statistics maintains an annual report on the size of the U.S. prison population. The report includes state-by-state demographic statistics like inmate ages, races, crimes committed, and other crucial data for researchers and policymakers.

But while current prison statistics give a good sense of the size and scale of mass incarceration, they provide little information on conditions inside the vast constellation of American prisons.  Perhaps the most glaring gap is solitary confinement.  No one knows exactly how many people are currently kept in isolation in American prisons. “There are estimates, but no official count nationwide,” Western said....

Another major gap in prison statistics is the number of non-sexual assaults behind bars. Although Congress mandated the collection of sexual assault statistics with the Prison Rape Elimination Act in 2002, prisons are not required to report ordinary assaults to the Bureau of Justice Statistics....

Prisons and police departments may be the most visible parts of the criminal-justice system, but they are not necessarily the most powerful.  As judges lost flexibility with the growth of mandatory-minimum sentences during the tough-on-crime era, prosecutors became the most pivotal actors within the criminal-justice process.  This rise in influence was matched with a decline in transparency.  “Up until the late 1980s and early 1990s, we used to collect more data — not a whole lot of data, but more data — on what prosecutors do,” [Professor Marie] Gottschalk explained.  “[Now] the police are certainly much more accountable than prosecutors are, in terms of the visibility of what they do and the transparency of what they do.”

One prosecutorial tool with little transparency is plea dealing.  In 2013, more than 97 percent of all federal criminal charges that weren’t dismissed or dropped were resolved through plea deals.  (State-by-state totals are incomplete or unavailable, but often estimated to be similarly high.)  For prosecutors, the benefits are clear: Offenders are punished without expending manpower and resources in lengthy trials.  But plea deals are also one of the least-scrutinized parts of the criminal-justice system.  “In most cases, that’s a complete black box,” Gottschalk said.  “It allows prosecutors to have this enormous power without much transparency to the public.”

In the absence of reliable statistics, anecdotal evidence often fills the void. This is especially true when studying racial bias in the prosecutorial process.  Prosecutors are not required by law to compile data on racial disparities.  They also have little incentive to gather and publish it voluntarily, partly because of resource constraints and partly because of its potential negative implications.

A small number of offices have sought answers nonetheless, often with troubling results.  In 2011, Manhattan District Attorney Cyrus Vance invited the Vera Institute to examine his office’s internal records for evidence of racial disparities.  The institute’s final report found that disparities plagued every step of the process.  Among its findings: Black and Hispanic defendants were more likely to be offered plea deals on misdemeanors that included imprisonment than white and Asian defendants.  Would similar reviews of prosecutors’ offices nationwide produce similar results?...

This data’s absence shapes the public debate over mass incarceration in the same way that silence between notes of music gives rhythm to a song.  Imagine debating the economy without knowing the unemployment rate, or climate change without knowing the sea level, or healthcare reform without knowing the number of uninsured Americans. Legislators and policymakers heavily rely on statistics when crafting public policy. Criminal-justice statistics can also influence judicial rulings, including those by the Supreme Court, with implications for the entire legal system.

Beyond their academic and policymaking value, there’s also a certain power to statistics. They have the irreplaceable ability to both clarify social issues and structure the public’s understanding of them.  A wealth of data has allowed sociologists, criminologists, and political scientists to diagnose serious problems with the American criminal-justice system over the past twenty years.  Now that a growing bipartisan consensus recognizes the problem exists, gathering the right facts and figures could help point the way towards solutions.

June 1, 2015 in Data on sentencing, Detailed sentencing data, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Has the approach and administration of Clemency Project 2014 actually made the federal clemency process worse?

Download (10)The depressing question in the title of this post is prompted by this depressing new USA Today article headlined "Obama administration clemency push gets slow start."  I have long tried to avoid being too pessimistic about what has been unfolding on the federal clemency front over the last 18 months, in part because I sincerely believed it would be nearly impossible to make the modern federal clemency process and products even worse. But this USA Today piece has me fearing that my own pessimistic instincts perhaps should now turn even darker (based on the statements and data points I have highlighted below):

A Justice Department push to shorten long drug sentences through President Obama's clemency powers has gotten off to a slow start: Obama has commuted the sentences of just two of the tens of thousands of federal inmates who have applied through the program.  Lawyers involved in the effort say the year-old clemency initiative has been hampered by the complexity of the cases and questions about the eligibility criteria, which may still be too strict to help most of the prison population.

The result is a system that appears even more backlogged than it was before the initiative began.  "The criteria basically suggest that a whole bunch of good citizens who committed one little mistake got significantly more than 10 years in prison, and fortunately that's pretty rare," said Johanna Markind, a former attorney-adviser in the Office of Pardon Attorney who left in March.  "I think they've kind of belatedly realized that people are doing their jobs, and those perfect cases they think are there don't really exist," she said.  "For all the sound and fury about the commutations, the clemency initiative has only come up with a handful of cases that fit" the criteria.

The clemency initiative was intended to help federal inmates who would have received shorter prison terms had they been sentenced today.  That applies mostly to drug offenders after Congress shortened sentences for crack cocaine in 2010.  To be eligible, inmates must have already served 10 years of their sentence.

Last year, a record 6,561 federal prisoners — three times the usual number — filed petitions with the Justice Department's Office of Pardon Attorney, which advises the president on all requests for clemency.  Under the constitution, the president has the absolute power to grant pardons and commute sentences.

More than 30,000 federal inmates applied for representation through the Clemency Project 2014, a consortium of lawyers who have volunteered to help eligible inmates through the often complicated and time-consuming process of seeking a commutation. But 13 months later, those lawyers have submitted just 31 petitions. And while Obama has used his pardon power to shorten the sentences of 43, most of those cases predate the clemency initiative.  Over six years, Obama has granted just 0.2% of the commutation petitions submitted.

The Justice Department says it expects to recommend more commutations to Obama as it reviews the petitions.  But that could take a while: In its 2016 budget request to Congress, the department said the deluge of clemency applications is too much for the current staff to manage.  "As OPA's existing staff has discovered, expending the substantial resources required simply to manage such a volume of clemency requests significantly decreases those available for analyzing and evaluating the merits of individual applications and preparing the appropriate letters of advice to inform the president," the Justice Department said in its congressional budget justification.

Obama has proposed a 66% budget increase for the Office of Pardon Attorney in 2016, and is seeking twice as many lawyers to process all the paperwork.  And that paperwork can be daunting, requiring an examination of trial transcripts, the pre-sentence report (which is often sealed) and Bureau of Prisons files.

To be eligible under the program, inmates must be low-level offenders with no ties to gangs or cartels.  They must have demonstrated good conduct in prison, have no significant criminal history and no history of violence.  "There are gray areas, What is 'demonstrated good conduct in prison,' for example? Is that a pristine record?" said Cynthia Roseberry, a career public defender who now manages the Clemency Project 2014.

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Without knowing how the Obama administration will apply those vague criteria, it's impossible to know how many could be eligible.  "My hope is that thousands of those will meet the criteria, but I just can't speculate." Roseberry said.  She said she expects the numbers to increase as the Clemency Project continues to screen for likely candidates for commutation.  A Clemency Project screening committee has already notified more than 3,000 inmates it won't be accepting their cases.  Once a case is accepted, it's parceled out to a volunteer attorney such as Mary Davis.

Davis represents Byron McDade, a Washington man sentenced to 27 years for cocaine trafficking even as his co-conspirators — who testified against him — got no more than seven. In 2009, after McDade had served his first seven years, the judge who sentenced him urged Obama to commute his sentence.  "While the Court is powerless to reduce the sentence it was required by then-existing law to impose, the president is not," U.S. District Judge Paul Friedman wrote in another opinion last year,

So Davis assembled a 168-page petition with the help of two West Virginia University law students — Laura Hoffman and Amanda Camplesi — who spent a combined 122 hours on the case, collecting paperwork and visiting McDade at a federal prison in Pennsylvania. Davis said the work was complicated, even as a veteran federal defense attorney specializing in sentencing appeals.  "I know there were attorneys signing up for this who don't do criminal defense work, and I would think it would be extremely difficult," she said.

McDade is an unusual case: Before being convicted in 2002, his only offense was a minor misdemeanor with a $10 fine.  Markind, who worked on commutation cases as a Justice Department lawyer, said the clemency initiative did not relax Obama's "three strikes" policy making anyone with three or more criminal convictions ineligible for clemency. "Criminals with a record do not make the most appealing poster children," she said....

Mark Osler, a law professor at the University of St. Thomas in Minneapolis and a former prosecutor ... said the clemency process is already too bureaucratic and too distant from the ultimate decision-maker: the president.  The Clemency Project hopes to cut through the process by helping to provide the Justice Department with better, more complete case files to review.  But that solution has also led to criticism from Capitol Hill, where Senate Judiciary Committee Chairman Chuck Grassley, R-Iowa, says that the administration is outsourcing a government responsibility.

"We've failed the same way through different kinds of administrations, and the problem isn't the administration, it's the process," Osler said. "The sad thing is, every president recently has gotten to the end of their term and said, 'Hey, where are all the good clemency cases?' I sure hope that will change, but it's going to be a furious last year as these things start to come in even greater numbers."

It is hard to fault, and I am very disinclined to criticize excessively, all of the well-meaning and dedicated lawyers and administrators operating now in a system taking on Rube-Goldberg-quality with seemingly too many elements, criteria and moving parts.  Still, by now having so many more people applying for clemency, along with so many more lawyers trying to figure out the meaning and importance of so many vague criteria, it is not surprising that the clemency push/project has been most successful in producing a lot more paperwork and so many more questions about what this system is seeking to achieve.

I have long believed that President Obama could and should create an independent commission or task force or working group that would be tasked with making federal clemency reform a priority in a very short period of time.  Notably, as highlighted here, such a proactive approach to policing reform achieved a whole lot in just a matter of months:

On December 18, 2014, President Barack Obama signed an Executive Order establishing the President's Task Force on 21st Century Policing.  The Task Force Members sought expertise from stakeholders and input from the public as they worked to identify best practices and make recommendations to the President.  The Task Force submitted an initial report to the President on March 2, 2015 and released the final report on May 18, 2015.

Especially in light of all the new troubles and costs that the current approach is generating, I would urge the President to sign an Executive Order ASAP establishing the President's Task Force on 21st Century Clemency.  The Task Force Members could seek expertise from stakeholders and input from the public as they worked to identify best clemency practices and make recommendations to the President no later than December 1, 2015. That would still give Prez Obama a full year to implement an improved clemency process and would leave truly helpful legacy and structure in place from whomever becomes his successor.

Some prior related posts:

June 1, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Via similar 7-2 rulings, SCOTUS narrows reach of federal criminal and deportation statutes in Elonis and Mellouli

Via excerpts and links from this post at How Appealing I can effectively summarize the interesting Supreme Court work on criminal justice issues this morning:

The Court today issued four rulings in argued cases.

1. Justice Ruth Bader Ginsburg delivered the opinion of the Court in Mellouli v. Lynch, No. 13-1034. Justice Clarence Thomas issued a dissenting opinion, in which Justice Samuel A. Alito, Jr. joined....

4. And Chief Justice John G. Roberts, Jr. delivered the opinion of the Court in Elonis v.United States, No. 13-983. Justice Alito issued an opinion concurring in part and dissenting in part. And Justice Thomas issued a dissenting opinion....

In early news coverage, The Associated Press has reports headlined "High court throws out conviction for Facebook threats";... "Justices reverse deportation of man over minor drug crime"; ... Richard Wolf of USA Today reports that "Violent threats on Facebook may be OK, justices rule"; ... and "Justices sock it to Justice Department over drug deportations."

As the title of this post suggests, there are considerable similarities between what the Justices did in both Melloni (a low-profile immigration case) and Elonis (a high-profile federal criminal case). In both setting, via a 7-2 vote with Justices Thomas and Alito dissenting, the Court adopted a norrower construction of an applicable federal statute based on concerns that the federal government's (and lower courts') interpretation goes too far (for deportation purposes in Melloni, for criminal prosecution in Elonis).  The rulings and opinions are quite limited in both cases, and Justice Alito's dissent in Elonis fittingly laments this reality at its outset: 

In Marbury v. Madison, 1 Cranch 137, 177 (1803), the Court famously proclaimed: “It is emphatically the province and duty of the judicial department to say what the law is.” Today, the Court announces: It is emphatically the prerogative of this Court to say only what the law is not.

I hope and expect to have more to say about the lengthy opinions in Elonis in future posts, although I suspect that the ruling will ultimately prove more consequental for what it failed to do and say than for what it actually does and says.

June 1, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

Seriously exploring — finally! — execution alternatives to lethal injection

The Marshall Project has this lengthy new feature article on execution alternatives headlined "After Lethal Injection: Three states, three ways to kill a human being."  Here are excerpts:

The Supreme Court is expected to declare any day whether the injection of a drug called Midazolam violates the Eighth-Amendment protection against cruel and unusual punishment.  Given the difficulty of procuring other suitable drugs, states devoted to the death penalty are lining up alternative ways to efficiently end human life.  In Oklahoma (48 prisoners on death row), the answer seems to be nitrogen gas, a method favored by some proponents of assisted suicide but not something that has been employed in an execution chamber. Utah (nine on death row) proposes to revive the firing squad. Tennessee (67 on death row) is preparing to fire up its electric chair.  Decisions, decisions. The Marshall Project took a closer look at the thinking that goes into the logistics of execution....

The [Oklahoma] bill’s sponsor, Rep. Mike Christian, told a German online newspaper that nitrogen inhalation “is the most humane way to die.  You just sit there and a few minutes later, you’re dead.” Whatever the method, he added, “We will put these beasts to death.” Christian first conceived of using nitrogen for execution after watching a BBC documentary called “How to Kill a Human Being,” in which a retired member of the British parliament sampled various execution protocols (obviously stopping short of death) before deciding that nitrogen was “a perfect killing device.”...

It’s been a year and a week since Tennessee became the first state in the nation to require the use of the electric chair for executions should the primary means of capital punishment, lethal injection, become unavailable for one reason or another.  And it has been about eight months since that new law was challenged in court by ten death row inmates who argue that the mandated use of “Old Sparky” would constitute cruel and unusual punishment. Going from lethal drugs back to electrical currents as a means of killing, the condemned contend, is legally inconsistent with the “evolving standards of decency” that the U.S. Supreme Court employs in Eighth Amendment cases....

In March, Utah governor Gary Herbert signed a law to reinstate the firing squad as a legal method of execution in his state.  Utah had abandoned the method in 2004 only to be swayed back by a shortage of lethal injection drugs.  Herbert called the punishment “a little bit gruesome,” but the practical concerns were overwhelming; even if the state can find lethal injection drugs, defending them in court would be expensive, and Utah already has in place a formal protocol for death by firing squad.  It involves a blindfold, sandbags, four loaded rifles, and one with a non-lethal wax bullet so executioners will never know who fired the fatal shots.

Lawmakers have publicly considered the firing squad as a backup plan for lethal injections in Arkansas, Missouri, South Carolina, and Wyoming.  Idaho maintained the method as an option until 2009.  It is on the books in Oklahoma, as a fourth option after lethal injection, nitrogen gas, and the electric chair.  The firing squad has consistently been found to be more reliable than many of the alternatives.  Botches — in the form of bullets that miss the heart — have been rare.  In 1938, a Utah murderer named John Deering allowed doctors to hook him up to an electrocardiogram as he faced the guns.  His heart stopped 15.6 seconds after the bullets hit.  Lethal injection, at its fastest, takes minutes.

Long-time readers know that I have been talking for a long time about the need for states (and Congress) to get serious about alternatives to lethal injection for carrying out death sentences. But now, nearly a decade after lethal injection protocols were starting to be subject to serious legal scrutiny, it has taken a drug shortage and still more SCOTUS litigation to get serious consideration of execution alternatives. But I fear, based in part on the oral argument in Glossip, that the latest round of Supreme Court litigation is not likely to require many more states to get much more serious about finding other viable methods of state killing.

June 1, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5)

"The GOP should turn its attention to prosecutorial misconduct"

The title of this post is the subheadine of this notable new National Review commentary authored by Kevin Williamson.  The provocative main headline for the piece is "When District Attorneys Attack," and here are excerpts:

Prosecutorial misconduct is a plague upon these United States, from the vodka-pickled Democratic political jihadists in Austin to California, where judges complain of an “epidemic” of prosecutorial misconduct abetted by Democratic attorney general Kamala Harris, who is seeking to replace retiring Barbara Boxer in the Senate.

The Democrats have long been acculturated to the climate of corruption that attends government agencies that are largely free of ordinary accountability, where a carefully cultivated lack of transparency shields operatives from scrutiny and normal oversight. Republicans can rouse themselves to action, if only barely, when this involves the federal Internal Revenue Service or Environmental Protection Agency.  But deference to police agencies and prosecutors is so habitual among the members of the law-and-order party that they instinctively look for excuses when presented with obvious examples of police misconduct, and twiddle their thumbs in the 99 percent of cases of prosecutorial misconduct that do not involve a Republican elected official.

But only the Republican party has the credibility and the political capital to take on the difficult and sure-to-be-thankless task of reining in rogue police agencies and abusive prosecutors — and they may as well take a look at our scandalous prisons while they are at it.  Some Republican leaders, notably Texas’s former governor Rick Perry, have been active and energetic partisans of reform, largely under the banner of the excellent Right on Crime campaign.  But this is not really a job for presidents or even governors: This is a job for mayors, city councilmen, district attorneys, sheriffs, and police chiefs.

June 1, 2015 in Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

How even same-sex marriage becomes a prison story in incarceration nation

My students never — or perhaps always — get tired of hearing me say that every notable legal or social issue in the United States is always, in some way, a significant sentencing or corrections issue.  The latest example proving my point comes from this local article headlined "Prison weddings in Oklahoma on hold until U.S. Supreme Court rules on same-sex marriage." Here is how it gets started:

The state Corrections Department has halted all weddings within prison walls until after a U.S. Supreme Court ruling on whether same-sex couples are guaranteed the right to marry, The Oklahoman has learned.

If the high court rules in favor of gay marriage, corrections officials will alter department policy to allow an offender to marry someone of the same sex, spokeswoman Terri Watkins said. “If same-sex marriages are ruled legal, then the policy will need to be changed. We will follow the law,” she said.

Prison facilities in Oklahoma designate up to two days a year on which inmates are allowed to marry. But the department stopped permitting such ceremonies earlier this year and doesn’t expect to resume until the fall, Watkins said.

The temporary halt drew criticism from Ryan Kiesel, director of the American Civil Liberties Union of Oklahoma, who said a state agency should be following the law as it stands now, not waiting to see if the law changes. “To hit the pause button on marriages performed in prison is completely at odds with what the state of Oklahoma is obligated to do,” he said. “There is simply no justification for what DOC is doing.” Even a temporary delay is an unnecessary restriction and a burden to the engaged couples, he added.

Prisoners have a constitutionally guaranteed right to marry, though states can impose restrictions. In Oklahoma, the prisoner and fiance or fiancee must have the mental capacity to enter into marriage, be at least 18 years old and, if previously married, provide proof of divorce.

Twenty prisoners were married in Oklahoma in 2014 and two have married so far in 2015, Watkins said.

Of the offenders’ pending requests for marriage, none are same-sex couples, Watkins said. The department’s current policy doesn’t address same-sex marriages behind bars, but does prohibit two currently incarcerated offenders from marrying.

June 1, 2015 in Prisons and prisoners, Who Sentences? | Permalink | Comments (3)

May 31, 2015

Fascinating fight over fate of offenders on Nebraska's death row after capital repeal

This Fox News piece, headlined "Nebraska AG fighting to block death penalty repeal from reversing death row sentences," highlights the fascinating fight now developing in the Cornhusker state following its formal repeal of its death penalty statutes:

Nebraska's top lawyer is headed to court to prevent the state's sweeping death penalty repeal from reversing sentences of those already on death row -- in the latest flare-up between the legislature and Republican Gov. Pete Ricketts' administration.

The legislature delivered a blow to the governor Wednesday when it voted 30-19 to override Ricketts' veto of legislation that would put an end to capital punishment in Nebraska. With the power play by the state's Republican-dominated legislature, Nebraska becomes the first conservative state in decades to end the death penalty.

But Ricketts' administration is not giving up the fight. While not contesting the ban's impact on future prosecutions, the administration is battling to prevent it from undoing prior death penalty sentences for the 10 inmates currently on death row.

In a written statement, state Attorney General Doug Peterson challenged part of the bill that says the "intent" of the legislature is that any death penalty "imposed but not carried out prior to the effective date of this act" be changed to "life imprisonment." Peterson said: "We believe this stated intent is unconstitutional."

He said that Nebraska's Board of Pardons has exclusive power to change final sentences imposed by courts. "Thus, the Attorney General intends to seek a court decision, at the appropriate time, to definitively resolve the issue of the State's authority to carry out the death sentences previously ordered by Nebraska's courts for the 10 inmates now on death row."

A Ricketts spokesman told FoxNews.com Friday that the governor agrees with the AG's assessment and will pursue the court's legal opinion on the matter as soon as possible....

"My words cannot express how appalled I am that we have lost a critical tool to protect law enforcement and Nebraska families," Ricketts said in a statement after Wednesday's vote, which broke across party lines and captured the votes necessary to override Ricketts' veto. The legislature had passed the anti-death penalty bill last week, 32-15.

Immediately after the vote, Republican Sen. Beau McCoy, who was against the ban, announced the formation of Nebraskans for Justice to start a petition drive to get reinstatement on the ballot in November.

But this was the third time the legislature voted to repeal capital punishment, which Republicans against it said no longer held to the values of their party, be it morally or fiscally. "The taxpayers have not gotten the bang for their buck on this death penalty for almost 20 years," said Sen. Colby Coash, a Republican and death penalty opponent. "This program is broken. How many years will people stand up and say we need this?"

Other senators said they philosophically support the death penalty, but were convinced legal obstacles would prevent the state from carrying out another execution ever again. The last one in Nebraska was a 1997 electrocution. The state lost its practical ability to execute inmates in December 2013, when one of the three lethal injection drugs required by state law expired. Opponents charged that it was a poorly managed and inefficient government program.

May 31, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Sentencing message sent: blazing a Silk Road for drugs gets you LWOP

Images (10)A high-profile prosecution of a high-tech drug dealer culminated on Friday with the sentencing of Silk Road creator Ross Ulbricht.  This Wired story provides an effective account of the sentencing, and includes these excerpts:

On Friday Ulbricht was sentenced to life in prison without the possibility of parole for his role in creating and running Silk Road’s billion-dollar, anonymous black market for drugs. Judge Katherine Forrest gave Ulbricht the most severe sentence possible, beyond what even the prosecution had explicitly requested. The minimum Ulbricht could have served was 20 years.

“The stated purpose [of the Silk Road] was to be beyond the law. In the world you created over time, democracy didn’t exist. You were captain of the ship, the Dread Pirate Roberts,” she told Ulbricht as she read the sentence, referring to his pseudonym as the Silk Road’s leader. “Silk Road’s birth and presence asserted that its…creator was better than the laws of this country. This is deeply troubling, terribly misguided, and very dangerous.”

In addition to his prison sentence, Ulbricht was also ordered to pay a massive restitution of more than $183 million, what the prosecution had estimated to be the total sales of illegal drugs and counterfeit IDs through the Silk Road—at a certain bitcoin exchange rate—over the course of its time online. Any revenue from the government sale of the bitcoins seized from the Silk Road server and Ulbricht’s laptop will be applied to that debt.

Ulbricht had stood before the court just minutes earlier in navy blue prison clothes, pleading for a lenient sentence. “I’ve changed. I’m not the man I was when I created Silk Road,” he said, as his voice grew hoarse with emotion and cracked. “I’m a little wiser, a little more mature, and much more humble.”

“I wanted to empower people to make choices in their lives…to have privacy and anonymity,” Ulbricht told the judge. “I’m not a sociopathic person trying to express some inner badness.”

Ulbricht’s sentencing likely puts the final seal on the saga of Silk Road, the anarchic underground market the 31-year-old Texan created in early 2011. At its peak, the Dark Web site grew to a sprawling smorgasbord of every narcotic imaginable — before Ulbricht was arrested in a public library in San Francisco in October of 2013. Eighteen months later, he was convicted in a Manhattan court on seven felony charges, including conspiracies to traffic in narcotics and launder money, as well as a “kingpin” charge usually reserved for the leaders of organized crime groups....

Ulbricht’s defense team has already said it will seek an appeal in his case. That call for a new trial will be based in part on recent revelations that two Secret Service and Drug Enforcement Administration agents involved in the investigation of the Silk Road allegedly stole millions of dollars of bitcoin from the site. One of the agents is even accused of blackmailing Ulbricht, and of allegedly selling him law enforcement information as a mole inside the DEA. But the judge in Ulbricht’s case ruled that those Baltimore-based agents weren’t involved in the New York FBI-led investigation that eventually took down the Silk Road, preventing their alleged corruption from affecting Ulbricht’s fate.

Speaking to press after the sentencing, Ulbricht’s lead attorney Joshua Dratel said that Forrest’s sentence was “unreasonable, unjust, unfair and based on improper consideration with no basis in fact or law.” He added: “I’m disappointed tremendously.”

In emotional statements at the hearing, the parents of drug users who had overdosed and died from drugs purchased from the Silk Road called for a long sentence for Ulbricht. “I strongly believe my son would still be alive today if Mr. Ulbricht had never created Silk Road,” said one father whose 25-year old son had died from an overdose of heroin, requesting “the most severe sentence the law will allow.”

In the weeks leading up to his sentencing hearing, Ulbricht’s defense team attempted to lighten his punishment with arguments about his motives and character, as well as emphasizing the Silk Road’s positive effect on its drug-using customers. In more than a hundred letters, friends, family, and even fellow inmates pointed to Ulbricht’s idealism and lack of a criminal history. And the defense argued that Silk Road had actually reduced harm in the drug trade by ensuring the purity of the drugs sold on the site through reviews and ratings, hosting discussions on “safe” drug use, and giving both buyers and sellers an avenue to trade in narcotics while avoiding the violence of the streets.

But the prosecution countered that any protection the Silk Road offered drug users was dwarfed by the increased access it offered to dangerous and addictive drugs. And beyond the two parents who spoke at the Friday hearing, it pointed to six individuals who it claimed had died of drug overdoses from drugs purchased on the Silk Road.

In her statement preceding Ulbricht’s sentencing, Judge Forrest fully sided with the prosecution against the defense’s “harm reduction” argument, arguing that the Silk Road vastly expanded access to drugs. “Silk Road was about fulfilling demand, and it was about creating demand,” she said. “It was market-expanding.”

She also tore into the argument that the Silk Road reduced violence in the drug trade, pointing out that most of the academic papers submitted by the defense to support that argument focused only on the protection for the final buyer of drugs. But that digital remove, she argued, did nothing to prevent violence at any other point in the narcotics supply chain, from production to distribution. “The idea that it’s harm reducing is so very narrow,” she said. “It’s…about a privileged group, sitting in their own homes, with their high speed internet connections.”

The Justice Department also argued in their letter to Judge Forrest that Ulbricht should be made an example of to stop even more Dark Web market kingpins from following in his footsteps. After all, dozens of copycat sites and advancements on the Silk Road market model have sprouted in the years since its takedown, including the Silk Road 2, Evolution, and the currently largest Dark Web black market to survive law enforcement’s attacks, Agora. To combat the spread of those anonymous bazaars, prosecutors asked Judge Forrest to “send a clear message” with a sentence for Ulbricht well beyond the mandatory minimum.

Judge Forrest sided with the prosecution on that point, too, arguing that she needed to create a strong deterrent for the next Dread Pirate Roberts. “For those considering stepping into your shoes…they need to understand without equivocation that there will be severe consequences,” Forrest said.

The defense’s arguments about Ulbricht’s character and his idealistic motives were also undercut by accusations that Ulbricht had paid for the murder of six people, including a potential informant and a blackmailer. Those accusations never became formal charges in Ulbricht’s case — five out of six of the murder-for-hires appear to have been part of a lucrative scam targeting Ulbricht, with no actual victims.

But those murder accusations nonetheless deeply colored Ulbricht’s trial, and strongly influenced his sentence. “I find there is ample and unambiguous evidence that [Ulbricht] commissioned five murders to protect his commercial enterprise,” Forrest said, leaving out one alleged attempted murder for which Ulbricht was charged in a different case.

With those attempted murders as context, Forrest was merciless in her assessment of Ulbricht’s seeming multiple personalities: the altruistic and admirable young man described in the letters sent to her as evidence of his character, versus the callous drug lord she saw in his actions. “People are very complicated, and you are one of them,” she said simply. “There is good in you, Mr. Ulbricht. There is also bad. And what you did with the Silk Road was terribly destructive.”

May 31, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (19)