June 13, 2015
Citing much research and data, Judge Posner rails against "the problem of the elderly prisoner"
The Seventh Circuit this past week issued an otherwise routine affirmance of a drug conviction in US v. Presley, No. 14-2704 (7th Cir. June 11, 2015) (available here), the opinion end up not at all routine because of Judge Posner's lengthy concluding (dicta?) about problems with exceedingly long federal sentences and the elderly prisoners these sentences create. I would urge all federal sentencing fans to read Judge Posner's work in Presley in full, and these passages help highlight why (even with lots of Judge Posner's great cites and data left out):
The only questionable feature of the judgment is the length of the sentence — almost 37 years, though it is within the applicable guidelines range because of Presley’s very lengthy criminal history. Presley was 34 years old when sentenced... [and if he] earns the maximum possible good-time credit he’ll be almost 64 years old when released. If he earns no good time he’ll be almost 69. And after release he’ll undergo five years of supervised release, which like parole is a form of custody because it imposes significant restrictions on the supervisee....
The judge pointed out that Presley is a career offender, that he began his criminal career when he was 16, that he was a large-scale heroin dealer, and that he had committed disciplinary violations in previous incarcerations. What the judge failed to consider was the appropriateness of incarcerating Presley for so long that he would be elderly when released. Criminals, especially ones engaged in dangerous activities such as heroin dealing, tend to have what economists call a “high discount rate” — that is, they weight future consequences less heavily than a normal, sensible, law-abiding person would....
The sentencing judge in this case ... gave no reason to think that imposing a 37-year sentence on Presley would have a greater deterrent effect on current or prospective heroin dealers than a 20-year or perhaps even a 10-year sentence, or that incapacitating him into his sixties is necessary to prevent his resuming his criminal activities at that advanced age. Sentencing judges need to consider the phenomenon of aging out of risky occupations. Violent crime, which can include trafficking in heroin, is generally a young man’s game. Elderly people tend to be cautious, often indeed timid, and averse to physical danger. Violent crime is far less common among persons over 40, let alone over 60, than among younger persons....
There needs finally to be considered the cost of imprisonment to the government, which is not trivial. The U.S. prison population is enormous by world standards — about 1 percent of the nation’s entire population — and prisons are costly to operate because of their building materials (steel especially is very expensive) and large staffs. If the deterrent or incapacitative effect on criminal propensities fades sharply with time, the expenses incurred in the incarceration of elderly persons may be a social waste....
We are not suggesting that sentencing judges (or counsel, or the probation service) should conduct a cost-benefit analysis to determine how long a prison sentence to give. But the considerations that we’ve listed should be part of the knowledge base that judges, lawyers, and probation officers consult in deciding on the length of sentences to recommend or impose. There is no indication that these considerations received any attention in this case. We do not criticize the district judge and the lawyers and probation officers for the oversight; recognition of the downside of long sentences is recent and is just beginning to dawn on the correctional authorities and criminal lawyers. Neither the Justice Department nor the defendant’s lawyer (or the probation service) evinced awareness in this case of the problem of the elderly prison inmate....
There is much that federal sentencing judges are required to consider in deciding on a sentence to impose — maybe too much: the guidelines, the statutory sentencing factors, the statutory and regulatory provisions relating to conditions of supervised release, presentence reports, briefs and arguments of counsel, statements by defendants and others at sentencing hearings. But in thinking about the optimal sentence in relation to the problem of the elderly prisoner, probably the judge’s primary focus should be on the traditional triad of sentencing considerations: incapacitation, which prevents the defendant from committing crimes (at least crimes against persons other than prison personnel and other prisoners) until he is released, general deterrence (the effect of the sentence in deterring other persons from committing crimes), and specific deterrence (its effect in deterring the defendant from committing crimes after he’s released). A sentence long enough to keep the defendant in prison until he enters the age range at which the type of criminal activity in which he has engaged is rare should achieve the aims of incapacitation and specific deterrence, while lengthening the sentence is unlikely to increase general deterrence significantly if the persons engaged in the criminal activity for which the defendant is being sentenced have a high discount rate; for beyond a point reached by a not very long sentence, such persons tend not to react to increases in sentence length by abandoning their criminal careers.
June 13, 2015 in Booker in the Circuits, Drug Offense Sentencing, Examples of "over-punishment", Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (8)
"The Impact of Drug Policy on Women"
The title of this post is the title of this intriguing recent report from the Open Society Institute. Here is its introduction:
In the public mind, the “war on drugs” probably conjures up a male image. In most countries, official statistics would show that men, indeed, are the majority of people who use drugs recreationally, who have problematic use, and who sell drugs. But punitive drug laws and policies pose a heavy burden on women and, in turn, on the children for whom women are often the principal caregivers.
Men and boys are put at risk of HIV and hepatitis C by prohibitionist policies that impede access to and use of prevention and care services, but women and girls virtually always face a higher risk of transmission of these infections. Men suffer from unjust incarceration for minor drug offenses, but in some places women are more likely than men to face harsh sentences for minor infractions. Treatment for drug dependence is of poor quality in many places, but women are at especially high risk of undergoing inappropriate treatment or not receiving any treatment at all. All people who use drugs face stigma and discrimination, but women are often more likely than men to be severely vilified as unfit parents and “fallen” members of society.
This paper elaborates on the gender dimension of drug policy and law with attention to the burdens that ill-conceived policies and inadequate services place on women and girls.
How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
The Supreme Court Term is winding down, and we might get a ruling as early as this coming wee in the (re)argued case Johnson v. US concerning the (un)constitutionality of the Armed Career Criminal Act. As federal sentencing fans should know, there seem to be a real chance that Justice Scalia will convince enough of his colleagues to strike down ACCA as unconstitutionally vague.
Helpfully, Leah Litman has already authored an article, "Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality", about some of the legal issues that might follow from a big constitutional ruling in Johnson. But the question in the title of this post is focused on the practical question of just how many current federal prisoners serving ACCA sentences of 15 or more years could seek to benefit from ACCA.
This helpful new "Quick Facts" report from the US Sentencing Commission indicates that in Fiscal Year 2014 roughly 10% of 5,500 federal firearm offenders were sentenced under ACCA to an average sentence of 188 months in prison. Assuming that these numbers are typical for firearm sentencing in each of the last dozen years, we can then extrapolate to estimate that there may be as many as 7,000 current federal prisoners serving ACCA sentencing term.
Critically, though, even if the Supreme Court were to declare ACCA's residual clause unconstitutionally vague, that ruling alone would not necessarily impact all (or perhaps even most) of current ACCA prisoners. Sentencing judges in many (maybe most) cases sentenced under ACCA likely did not rely on the residual clause of the statute to find enough triggering prior offenses to require the application of the severe ACCA sentence. Among the uncertainties which could flow from a big ACCA ruling in Johnson is whether other parts of the ACCA statute and prior convictions based on other parts of the ACCA statute are still valid if one ACCA clause is struck down as unconstitutionally vague.
Some related prior posts:
- Terrific SCOTUSblog previews of this week's SCOTUS arguments in Johnson and Yates
- Based on questions asked at SCOTUS oral argument, wins predicted for federal defendants in Johnson and Yates
- SCOTUS orders new briefing and argument on ACCA's constitutionality in Johnson!?!?!
- "Residual Impact: Resentencing Implications of Johnson v. United States’ Potential Ruling on ACCA’s Constitutionality"
June 12, 2015
"Marijuana & Ohio: Past, Present, Potential"
The title of this post is the title of the lengthy research report that was formally released (and extensively discussed) yesterday at the Ohio Marijuana Policy Reform Symposium which I help organize yesterday. The report and related information about Marijuana Policies of Ohio Task Force that released the report can be found at this webpage.
The report is much longer and more data-heavy than anything else previously written about marijuana reform in Ohio, but this AP article discussing its findings also highlights why the report has also become the subject of criticism. The AP piece is headlined "Economics of effort to legalize pot in Ohio in crosshairs," and here are excerpts:
A Republican prosecutor who is heading a task force on marijuana legalization in Ohio said the analysis of potential impacts released by his group Thursday presents a balanced look at the issue, a claim questioned by the state auditor. Hamilton County Prosecutor Joe Deters was asked to chair the Marijuana Policies of Ohio Taskforce by ResponsibleOhio, the group advancing a legalization amendment toward the November ballot.
He said ResponsibleOhio has allowed experts on his task force the editorial freedom to put together a “straightforward assessment” of how legalization might affect law enforcement, public safety, public health and Ohio’s overall economy. “Our report doesn’t make recommendations, and it doesn’t pull any punches,” Deters said. “We’ve made a concerted effort to remain objective, take an even-handed approach and lay out both the good and the bad of legalization.”
The report estimates legalization would create 34,791 jobs in Ohio representing $1.6 billion in labor income in connection with nearly $7 billion in output from the cultivation, extraction, processing and sale of marijuana. The report said research shows legalization doesn’t lead to drastic increases in crime, in adult or teen marijuana use, or in workplace injuries -- a finding Auditor Dave Yost called rosy at best.
“There are unquestionably going to be health and safety impacts,” Yost, an opponent of legalizing marijuana, said. “This task force was stacked like a BLT. Really, in 30 days? This debate has been going on for 50 years and they did a comprehensive study in 30 days?”
The report came the same day a committee of the Ohio Constitutional Modernization Commission was reviewing draft language that would amend Ohio’s constitution to ban changes to the constitution that create monopolies or further the economic interests of select individuals. It comes partly in reaction to a piece of ResponsibleOhio’s proposal that would establish 10 grow sites, some of which investors have already purchased.
Because I spent all of yesterday at the Ohio Marijuana Policy Reform Symposium talking about this Taskforce report, I am not going to add extra commentary here yet (though lots will follow before too long at Marijuana Law, Policy and Reform). But I am hopeful that the report can help advance public information and understanding as the debate over marijuana reform heats up in Ohio and nationwide in the months ahead. Indeed, a letter from the Chair of the Taskforce, Hamilton County Prosecutor Joe Deters, stresses this point at the front of the document:
The question of changing Ohio’s approach to marijuana policy may soon be put before voters -- most likely on the November 2015 ballot. The rapid pace of change in marijuana policy across the country, however, has made it difficult to keep up with the experiences, research, and practices occurring in different states. Political arguments from all sides of this debate have made it even more challenging to separate fact from opinion....
Ohio cannot afford to make decisions about marijuana policy and law based on unsubstantiated and often unsupported talk on both sides of the issue. Ohioans need and deserve an honest and in-depth assessment of the positive and negative impacts that ending marijuana prohibition may have, so they can make up their own minds....
I look forward to continuing this important discussion throughout Ohio in the coming weeks and months.
"'Frightening and High': The Frightening Sloppiness of the High Court's Sex Crime Statistics"
The title of this post is the title of this notable new paper authored by Ira Mark Ellman and Tara Ellman recently posted on SSRN. Here is the abstract:
This brief essay reveals that the sources relied upon by the Supreme Court in Smith v. Doe, a heavily cited constitutional decision on sex offender registries, in fact provide no support at all for the facts about sex offender re-offense rates that the Court treats as central to its constitutional conclusions. This misreading of the social science was abetted in part by the Solicitor General’s misrepresentations in the amicus brief it filed in this case.
The false “facts” stated in the opinion have since been relied upon repeatedly by other courts in their own constitutional decisions, thus infecting an entire field of law as well as policy making by legislative bodies. Recent decisions by the Pennsylvania and California supreme courts establish principles that would support major judicial reforms of sex offender registries, if they were applied to the actual facts.
June 12, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)
Canvassing the "most likely outcomes" of the SCOTUS case on death penalty drugs
Though I think we are still a few weeks away from getting a ruling (and multiple?) opinions in the SCOTUS case (Glossip v. Gross) considering Oklahoma's lethal injection history and plans, it is certainly not too early to begin speculating about what that Court might end up doing in the case. Helpfully, this extended new Vox article, headlined "The most likely outcomes of the Supreme Court's death penalty ruling," provides a great overview of what we might expect from the ruling. Here are excerpts, along with six possibilities for Glossip's outcome:
The Supreme Court is considering a legal challenge to Oklahoma's use of lethal injection this month — but chances are the effects of a ruling will be quite limited.
The case follows several botched executions in the past couple of years, particularly that of Clayton Lockett in April 2014. Lockett's execution, in which experimental drugs were used because of a nationwide shortage of lethal injection drugs, took an excruciating 43 minutes. It led Oklahoma inmates to file a lawsuit challenging the state's lethal injection protocol, eventually putting all executions in the state on hold once the Supreme Court accepted the challenge.
Specifically, the inmates are contesting the state's use of midazolam, a sedative used as part of a three-drug protocol to execute death row inmates. Midazolam is supposed to put someone to sleep, allowing the painless application of other drugs that actually kill the inmate. But Lockett appeared to groan and violently struggle during his execution, suggesting the first drug wasn't adequate — and may violate constitutional protections against cruel and unusual punishment.
Several death penalty experts and court watchers told Vox what they think the most likely outcomes of a Supreme Court ruling are. They largely rejected the possibility that the Court would make a sweeping decision against lethal injections or the death penalty in general, since most justices consider the death penalty constitutional. They instead outlined six possibilities — most of which would have a very narrow effect, and would likely allow lethal injections to continue in the US. Of course, it's entirely possible that the Court, which tends to be full of surprises, takes another approach, but these are the outcomes that seem most likely.
1) Oklahoma messed up, but midazolam isn't necessarily a problem....
2) Midazolam is constitutional....
3) Midazolam is unconstitutional....
4) Midazolam is unconstitutional as part of a three-drug protocol....
5) Inmates have not proven midazolam leads to cruel and unusual punishment....
6) Send the case back to a lower court
June 11, 2015
Imagine if the Chief could send down and call up Justices from "inferior" tribunals
The US Constitution only formally provides for and requires one (Supreme) Court, and then in Article I states that "Congress shall have power To ...constitute tribunals inferior to the Supreme Court." This reality makes perhaps constitutionally conceivable the staffing idea suggested by this amusing new Onion article headlined "Struggling Justice Alito Sent Down To Lower Federal Court."
Because he is purportedly a big baseball fan, I am hoping Justice Alito gets a kick out of how The Onion imagines the Chief Justice managing his judicial team (though I am sure he would much rather imagine having another Justice sent down):
Following weeks of declining performance within the nation’s highest judicial body, the Supreme Court announced Thursday that it has sent a struggling Associate Justice Samuel Alito down to a lower federal court. “Sammy’s been a little cold with his dissenting opinions lately, so we’ve assigned him to a minor appellate jurisdiction until he can better contribute to this court,” Chief Justice John Roberts told reporters, confirming that Alito had been removed from the Supreme Court’s nine-person roster and appointed to the U.S. Court of Appeals for the Eleventh Circuit.
“Obviously, Sammy is a veteran legal scholar who has played a deciding role in several high-profile cases, but until he regains his stroke, we need to go with someone who can best interpret statutory law as set out by the U.S. Constitution. But we’re confident that he only needs to author a few decisions in some lower-pressure situations before he’s ready to return.” Roberts added that Alito’s spot on the court would be filled by recently called-up jurist prospect Ricardo Gonzalez, a 71-year-old constructionist from the U.S. District Court for Puerto Rico.
I am pretty sure that the the Washington Nationals have as their AAA-affiliate the Syracuse Chiefs, so it would have been a bit more "accurate" for this Onion piece to say Justice Alito had been sent down to the Second Circuit.
Sooooo excited for Ohio Marijuana Policy Reform Symposium
As I mentioned in this post, not only has my own Ohio lately become a hot state for dynamic conversations about marijuana reform, I have had the honor and privilege of helping bring together an interesting groups of speakers for today's Ohio Marijuana Policy Reform Symposium taking place at The Ohio State University Moritz College of Law. (Because there is no charge for attending, I encourage anyone interested to make it over to the College of Law ASAP as the panels start at 10:30am.)
I have the honor and privilege of giving brief opening remarks for the event, and I plan to start my remarks this way:
Marijuana reform is a very serious issue. But, until recently, it has been hard to get serious people to take this issue very seriously. Disconcertingly, it seems elected officials are especially eager to ignore (or even make jokes) about the very serious issue of marijuana reform even as more and more citizens and voters, young and old, healthy and sick, keep saying in polls and keep showing on election day that they are troubled by blanket criminal prohibition and are eager to have significant legal reforms seriously considered.
For those who share my interest and excitement for these issues but unable to get to Ohio State, you can spend some time checking out these notable recent postsfrom Marijuana Law, Policy and Reform:
Nebraska sheriffs vote unanimously to support effort to resuscitate state's death penalty
As reported in this local article, headlined "Nebraska sheriffs group backs petition efforts to reinstate death penalty," a notable group of law enforcement officials have made a notable statement about death penalty reforms in Nebraska. Here are the details:
The Nebraska Sheriffs’ Association has voted unanimously to back a petition aimed at restoring the death penalty. The group met on Wednesday morning in Grand Island at the Nebraska Law Enforcement Training Center.
“It’s important because of the public safety issue,” said Grant County Sheriff Shawn Hebbert, who is president of the sheriffs’ association. “The death penalty works as a deterrent to protect our guards and our people who work in corrections, as well as our deputies,” he said.
More than 30 sheriffs from across Nebraska attended the association meeting on Wednesday. They were strongly against the Legislature’s 32-15 vote on LB268, which repealed the death penalty. Gov. Pete Ricketts vetoed LB268, but the Legislature countered with a 30-19 vote to override the veto.
That action is contrary to the beliefs of the majority of Nebraskans, the sheriffs said. “It’s been unanimous across the state ... that we need to keep the death penalty, and I think that shows the strength of our organization and the backing and support we have in the organization that we have to protect the public,” Hebbert said on Wednesday.
Not only did the association members support backing the petition drive led by Nebraskans for the Death Penalty, but Hebbert said many of the sheriffs in attendance will be carrying the petitions in their home counties. Pierce County Sheriff Rick Eberhardt said a lot of people outside the state lobbied to “impose their will on the state of Nebraska.” The petition is Nebraskans’ opportunity to take that back.
“What’s really sad is that most people are working, taking care of their kids, and they don’t want to have to pay $50,000 a year per head for ... guys on death row for 30 to 40 years,” he said. “That’s a lot of money, a lot of college educations, a lot of trips to the hospital, pay off a mortgage.” The death penalty repeal lets criminals sit around watching TV, getting “three hots and a cot,” Eberhardt said. “Guys in Afghanistan don’t have it that good.
“They get free legal, free medical and free room and board for the rest of their lives,” he said. “Is it really free? Absolutely not — I’m paying for it. My kids are going to be paying for it. My grandkids are going to be paying for those guys.”...
The petition drive would need about 58,000 valid signatures to place the death penalty on the November 2016 general election ballot. It needs about 115,000 signatures by August to keep the Legislature’s repeal of the death penalty from going into effect.
“The initial goal is to get enough signatures to keep the law, the repeal, from going into effect, and the secondary goal is to turn it over to a vote of the people,” Hebbert said.
Although not all 93 Nebraska counties were represented at the sheriffs’ association meeting, Hebbert said the vote itself by the association’s executive board was representative. “As president of the sheriffs’ association, I’ve been in contact with most of the sheriffs across the state, and I haven’t heard anybody who is not for this petition drive and turning this over to a vote of the people,” Hebbert said. “I have not talked to any sheriff who is not for the death penalty.”
In part because I am a very big fan of direct democracy and in part because I think political campaigns focused on the death penalty often do a pretty good job of informing the citizenry about all the complicated and controversial realities that surround death penalty administration, I am strongly rooting for the folks in Nebraska troubled by the recent legislative repeal of capital punishment to succeed in bringing this issue before the voters. Indeed, the mere fact that a serious effort is being made to get this issue before the voters has already helped make Nebraska a much more interesting and important death penalty state than it has ever been in the past, and these Cornhusker stories should be especially interesting to watch for both pro- and anti-death penalty advocates in the months ahead.
Recent related posts:
- Nebraska legislature votes by large margin to repeal state's death penalty
- Nebraska Gov officially vetoes bill to repeal death penalty in the Cornhusker State
- Nebraska legislature, with every vote counting, repeals death penalty by overriding Gov veto
- Fascinating fight over fate of offenders on Nebraska's death row after capital repeal
Charles Samuels, head of Federal Bureau of Prisons, announces plans to retire
As reported on this webpage for the Federal Bureau of Prisons, late last week "Director Charles E. Samuels, Jr. announced his plans to retire before the end of the year." Here is an excerpts from the letter he sent to communicate his plans to staff:
I am incredibly proud of the things we have accomplished working together during my tenure to continue the tradition of meeting our mission and maintaining correctional excellence to protect the American public. I offer many thanks and appreciation to all staff.
During the past 3-1/2 years we emphasized and enhanced staff safety, promoted partnership between labor and management throughout the entire agency, signed a Collective Bargaining Agreement, established an annual Diversity and Inclusion day to recognize the importance of all staff, established the Inmate Model Programs Catalog and increased evidenced-based reentry programs, including specialized programs for female offenders. We also modified the Residential Release Center Statement of Work to ensure the delivery of Bureau approved evidenced-based cognitive behavioral therapy programs, successfully implemented Prison Rape Elimination Act standards, expanded the Reduction in Sentence (compassionate release) criteria, requested an independent assessment and review of the Bureau's restrictive housing policies and procedures, established reintegration and mental health units, increased our repatriation efforts to support Federal Prison Industries, and ensured transparency with our stakeholders and the media, managed our institutions at near record levels of crowding and contributed to record declines in our population for the first time in 34 years. As a result of our combined efforts, rates of assaults dropped as low as they have been in decades. In addition, we extended our work beyond the prison walls to collaborate with representatives in the communities to which inmates are returning and to strengthen families through meaningful inmate visitation with children.
I joined this agency as a correctional officer, determined to make a positive difference; I leave knowing that there are thousands of dedicated and hardworking staff who are equally committed to the same goal. As I have repeated time and again, staff are the Bureau of Prisons, and there are no better staff, anywhere. I cannot adequately express my thanks to all of you for the incredible work you do every second, minute, and hour each and every day to protect and support one another, the inmates in our custody, and the American people. Your jobs are not easy, and you rarely get the recognition you greatly deserve. You carry out our mission with integrity and professionalism, while risking your lives every time you walk through the Sallyports of our 121 prisons around the country.
June 10, 2015
"Invisible Women: Mass Incarceration's Forgotten Casualties"
The title of this post is the title of this notable new paper authored by Michele Goodwin now available on SSRN. Here is the abstract:
This Essay fills an important gap in social and legal policy literature, addressing the intersection of sex and mass incarceration as a serious blind spot in legal analysis. It considers two works, James B. Jacobs’ The Eternal Criminal Record, and Alice Goffman’s On The Run to make important contributions to the literature. Among its claims, it argues that Black lives should matter to human research.
In Part I, it critiques Goffman’s book as fitting within a paradigm that pays too little attention to ethical standards and moral considerations involving Black human research subjects. This is particularly relevant in light of Goffman’s hunger for one of her primary research subject’s “killer to die.” It argues that cognitive bias — perceiving poor, African American human subjects as already marginal, blinds researchers to appreciating the harms in which they may expose their subjects. Part II turns to the missing narrative of women and mass incarceration in the U.S. It sheds light on and analyzes the complex patterns that frame women’s subjugation to law enforcement — issues absent in On The Run. Part III analyzes the extra-legal and collateral consequences of policing women, including felony disenfranchisement, loss of housing, and the chilling impacts on their children. It unpacks, what Professor James Jacobs terms, the eternal criminal record, and teases out findings in his compelling new book of the same name.
"American Punitiveness and Mass Incarceration: Psychological Perspectives on Retributive and Consequentialist Responses to Crime"
The title of this post is the title of this intriguing new paper authored by Mark Fondacaro and Megan O'Toole now available via SSRN. Here is the abstract:
A recent National Academy of Sciences Report explored the drivers of the fourfold increase in incarceration rates in the United States and provided a firm recommendation for significant reduction in incarceration rates. Policy makers representing the entire political spectrum are now publicly airing their views on the need for reform. Although public sentiment is generally favorably disposed toward reform in the abstract, when confronted with specific examples of crime, they tend to favor more punitive, retributive responses to crime. Retributive justifications for punishment that are deeply ingrained in our culture and our legal system as well as our biological and psychological make-up are a major impediment to constructive reform efforts.
However, recent advances in research across neurobiological, psychological, and social levels of analysis suggest that following our retributive impulses to guide legal decision making and criminal justice policy is not only costly and ineffective in reducing crime, but unjust and increasingly difficult to justify morally. This article will draw on a body of research anchored in social ecological models of human behavior to argue for more forward-looking, consequentialist responses to crime that aim at the individual prevention of criminal behavior in the least restrictive and most cost effective manner at both the front- and back-ends of our criminal justice system.
Should bail reform be a key component of sentencing reform efforts?
Ever the sentencing obsessive, I tend to not focus too much attention on various aspects of criminal procedure that impact case processing before a defendant is formally convicted. But this new New York Times article, headlined "When Bail Is Out of Defendant’s Reach, Other Costs Mount," provides a useful reminder of the significant role that bail prolicies and procedures have on all other aspects of criminal case processing. Here is the start of the lengthy piece, with one particularly important line highlighted:
Dominick Torrence, who has lived in this city all his life, has a long rap sheet for dealing drugs but no history of violence. So when he was charged with disorderly conduct and rioting on April 28, a night of unrest after Freddie Gray was fatally injured in police custody, he was shocked to learn the amount he would need to make bail: $250,000, the same amount as two of the officers facing charges over Mr. Gray’s death.
Although a bail bondsman would charge only a fraction of that, normally 10 percent, for many defendants $25,000 is as impossible a sum as $250,000. “That’s something you get for murder or attempted murder,” Mr. Torrence, 29, said from Baltimore Central Booking. “You’re telling me I have to take food out of my kid’s mouth so I can get out of jail.”
He spent a month in jail on charges that would later be dropped. Defense lawyers, scholars and even some judges say the high bail amounts set for some Baltimore protesters highlight a much broader problem with the nation’s moneybased bail system. They say that system routinely punishes poor defendants before they get their day in court, often keeping them incarcerated for longer than if they had been convicted right away. “It sets up a system where first there’s the punishment, and then there’s the opportunity to go to court for trial,” said Paul DeWolfe, the Maryland state public defender.
Though money bail is firmly entrenched in the vast majority of jurisdictions, the practice is coming under new scrutiny in the face of recent research that questions its effectiveness, rising concerns about racial and income disparities in local courts, and a bipartisan effort to reduce the reliance on incarceration nationwide.
Colorado and New Jersey recently voted to revamp their bail systems, while in New Mexico last November, the State Supreme Court struck down a high bail it said had been set for the sole purpose of detaining the defendant. This year, the Department of Justice weighed in on a civil rights lawsuit challenging bail amounts based on solely on the charge, calling them unconstitutional. In several states, including Connecticut, New York and Arizona, chief justices or politicians are calling for overhauls of the bail system.
The money bail system is supposed to curb the risk of flight by requiring defendants to post bond in exchange for freedom before trial. But critics say the system allows defendants with money to go free even if they are dangerous, while keeping low-risk poor people in jail unnecessarily and at great cost to taxpayers.
For those who cannot afford to post bail, even a short stay in jail can quickly unravel lives and families. Criminal defendants are overwhelmingly poor, many living paycheck to paycheck, and detention can cause job losses and evictions. Parents can lose custody of their children and may have a difficult time regaining it, even when cases are ultimately dropped. And people in jail who are not guilty routinely accept plea deals simply to gain their freedom, leaving them with permanent criminal records.
The United States leads the world in the number of pretrial detainees, according to a report by the National Institute of Corrections, an agency of the Department of Justice. An estimated half a million people are in the country’s jails on any given day because they cannot make bail. And even bail amounts much lower than those routinely seen in Baltimore can be prohibitive.
The sentence I have emphasized above surely correct based on anecdotal accounts from defendants and defense attorneys, but I would be especially interested to know if any serious and rigorous empirical work has been done to assess just how many non-guilty defendants (and/or defendants who could raise reasonable defenses at a trial) may take plea deals because they could not make bail and because a public defender tells the defendant they would necessarily serve a lot longer while awaiting trial AND face an even more sentence if they end up convicted after a trial. In turn, especially because even low-level criminal history can lead to significant sentencing enhancements in any future case, these bail issues and consequences may ripple through modern sentencing systems in a number of ways.
June 9, 2015
"Support for the Death Penalty May Be Linked to Belief in Pure Evil"
The title of this post is the headline of this interesting new Smithsonian article, and here are excerpts:
The reasons behind someone's sense of a just punishment are varied and murky, with a swell of psychological research pointing toward responses to race, sexuality and other hot-button issues. But according to recent research, another fundamental factor may be at play: whether someone believes in the existence of pure evil. A new study by psychologists Russell Webster and Donald Saucier confirms a rising correlation between an individual’s belief in pure evil and their support for harsher punishments, no matter the lifestyle or outward characteristics of the confessed criminal.
“At the extreme levels of criminal perpetration, people who believe in pure evil might not be looking for a situational factor that may have been at play there,” says Saucier, associate professor of psychological sciences at Kansas State University. “They’ll just say, ‘You know what? That person did something horrible, which makes that person evil. They are a demon, and we need to get rid of them.’”
Previous studies showed that stereotypically evil traits increase a perpetrator’s demonization in the eyes of their peers. Recently published in the journal Psychology and Individual Differences, the latest work also assesses specific recommendations for punishing a criminal, “given that the public often has a crucial role in recommending punishment via conventional criminal justice systems,” write authors Webster and Saucier in their paper.
“We were interested in how people thinking about the nature of humanity would impact how they treat them, to boil it down to a nutshell,” Saucier says. “So if you thought that there was a possibility for pure good in other people, what would that look like? And if there was a possibility for pure evil in people, what would that look like?”
The study’s 212 participants — all of them general psychology students at Kansas State University — were first asked to complete a survey determining the extent to which, on a continuum, they believed pure evil already existed in the world. The authors differentiated “pure evil” from behavioral scientists’ typical definition of evil, which centers on unprovoked and intentional harm, Webster says, by adding an emphasis on the sadistic motivations of the wrongdoer. The influence of religion on belief in pure evil wasn’t explored in this study.
Participants were then asked to read a supposedly real newspaper article printed in the Kansas City Star detailing a local murder. In one version of the article, the criminal was assigned stereotypically evil traits, such as an interest in the occult, donning all-black attire and taunting children. In the other version, the criminal was assigned milder traits, like an interest in camping and a focus on family life. In both versions, the criminal confessed to the murder.
The authors assessed the participants’ reaction to the crime using a common tool for measuring attitudes called the Likert-type scale, focusing specifically on how much they demonized the wrongdoer and their feelings of retribution. Finally, the authors questioned participants on their support for jail time, eligibility for parole and the death penalty. To control for the variability in participants’ knowledge of the criminal justice system, all pertinent terms were defined.
“What we basically found is that as they believe more in pure evil, they’re more likely to support things like the death penalty, but it went through mechanisms like thinking the person was a demon and feeling the need to have retribution on them,” Saucier says. “So we were kind of looking at what connects the belief to the outcome.”
But while participants generally recommended tougher sentences for the stereotypically evil perpetrator, greater belief in pure evil alone predicted whether someone demonized the criminal and called for harsher punishment, regardless of the murderer's character traits. “If they believed in pure evil, it didn't matter the characteristics. They were more likely to support the death penalty or life in prison," says Saucier. "The belief in pure evil overrode our stereotypically evil person."
You be the federal defense attorney: would you urge Dennis Hastert to cut a plea deal?
I often highlight and review high-profile cases by urging readers to place themselves in the shoes of a judge facing a tough sentencing decision or a prosecutor having to recommend a specific sentence. But, as the title of this post connotes, now I am urging folks to think about how the attorneys for former House Speaker Dennis Hastert ought to approach (sentencing?) discussions with their client and their adversaries. This lengthy Politico account of the Hastert charges and proceedings by Josh Gerstein provides all the needed background and includes these excerpts:
After more than a week in seclusion, former House Speaker Dennis Hastert pleaded not guilty Tuesday to two criminal charges that he violated federal banking law and lied to the FBI as they investigated his alleged agreement to pay $3.5 million in hush money to cover up a past transgression.
Hastert, who became the longest-serving Republican speaker before the GOP lost the House in 2006, was released after entering the plea in front of U.S. District Judge Thomas Durkin at an afternoon hearing which raised questions about whether Durkin will continue or the case will be reassigned to another judge.
Hastert, 73, looked much as he did during the height of his power, slightly stooped and with a shock of gray hair as he trudged into the packed courtroom clad in a dark pinstripe suit and blue tie. He stood in front of the judge’s bench throughout the roughly 15-minute hearing, softly answering the judge’s questions — usually with a “Yes, sir.”
Hastert’s lead defense attorney, Tom Green, spoke for the former speaker when it came time to offer a plea. “The defendant enters a plea of not guilty to both counts of the indictment, your honor,” Green said....
At Tuesday’s hearing, the defense waived a formal reading of the indictment, which alleges Hastert agreed to pay $3.5 million to an unnamed individual and forked over $1.7 million of that before the charges were filed. Nearly $1 million of that was withdrawn from the former speaker’s bank accounts in increments of $10,000 after bankers warned him that larger donations would trigger reports to the authorities, the indictment claims.
Prosecutors said little during the session, but when the judge asked for details of the potential penalties, Block noted Hastert could face up to five years in prison and a $250,000 fine on each of the two felony counts. However, judges usually impose sentences in accordance with federal guidelines that call for more lenient punishment for offenders with no serious criminal record.
A plea deal, if there were to be one, could also reduce Hastert’s sentence. Many criminal defense lawyers believe such a deal is probable because a jury is not likely to look favorably on a defendant trying to cover up alleged sexual abuse of a student.
One of the charges brought against Hastert — structuring cash transactions to avoid federal reporting requirements — is unpopular among defense lawyers and libertarians because it can render routine cash banking transactions in increments of just under $10,000 illegal even if the reason for the cash payments or withdrawals is lawful. Critics contend that prosecutors use the structuring law to bring charges or force guilty pleas from defendants when the government lacks proof to make a case for drug trafficking or tax evasion. Some judges have reacted skeptically when the feds have brought cases in which there is no charge that the underlying conduct was illegal.
The nature of Hastert’s reported relationship with the acquaintance who allegedly received the hush money is unclear, but experts say the statute of limitations in Illinois for a criminal prosecution on sexual abuse from the 1970s expired long ago.
Hastert, who as speaker was once second in line to the presidency, resigned his House seat in 2007 after he lost the speaker’s post due to the Democrats’ victory in 2006. He is the highest-ranking current or former federal official to face criminal prosecution since Vice President Spiro Agnew resigned in 1973 and pleaded guilty to a felony tax evasion charge.
Pennsylvania House seizes political opportunity to complain about Gov doing something (sort of) about state's dsyfunctional death penalty
This local article, headlined "House panel voices disapproval of Wolf's death penalty stance," reports that some Pennsylania legislators are finally motivated to do something about the state's dysfunctional capital punishment system. Unfortunately, they only seem motivated so far to make an inconsequential political statement rather than actual try to fix the state's broken system. Here are the basics:
The House Judiciary Committee overwhelmingly approved a resolution that is intended to send a message to Gov. Tom Wolf that it strongly disapproves of the reprieves he has granted that delayed the execution of two convicted murderers. The resolution, approved by a bi-partisan 19-8 vote on Monday, now goes to the full House for consideration, which could occur as soon as Wednesday.
Wolf in February signed an executive order imposing a moratorium on carrying out the death penalty until he has had time to study a Senate-commissioned Pennsylvania Task Force and Advisory Committee on Capital Punishment and its recommendations are satisfactorily addressed. That study is due out later this year.
The executive order so far has resulted in reprieves being granted to Terrence Williams, who was convicted of two murders as a teen-ager in 1984, and Hubert Michael, who was convicted of killing 16-year-old Trista Eng in 1993. Both death row inmates have exhausted their appeals.
The resolution, if approved by the House, would do nothing to change those reprieves, but rather states that the House believes those actions by Wolf are unconstitutional.
"This is about whether or not the laws of Pennsylvania will be carried out. The governor has said he wants to study capital punishment. It does not give him the right to ignore existing laws," said Rep. Mike Vereb, R-Montgomery, a death penalty proponent who sponsored the resolution. Following the House Judiciary Committee's approval of a resolution condemning Gov. Tom Wolf's temporary moratorium on executions, Vereb explains he and the governor are of different minds on the subject of the death penalty. Vereb said justice delayed is justice denied to victims....
Rep. Brandon Neuman, D-Washington, ... said Vereb's concerns would be more appropriately expressed in an amicus brief to the pending lawsuit filed by Philadelphia District Attorney Seth Williams that is before the state Supreme Court over this issue. "This is a matter that I believe needs to be handled and is being handled in the judiciary branch," Neuman said....
Committee Chairman Ron Marsico, R-Lower Paxton Twp., read a letter from Eng's family sent to the governor last week. In it, the family of the York County murder victim stated, "You stand in the way of thousands of victims who seek justice." Marsico added, "We owe it to the victims to pass this resolution."
I generally agree with the basic sentiment that justice delayed is justice denied, but that very sentiment makes me wish that the Pennsylvania legislature would do more to addresss death penalty administration than just pass resolutions. As noted here, even before Gov Wolf's moratorium, the Keystone State had not carried out an execution in more than 15 years and "according to Bureau of Justice Statistics, Pennsylvania is less likely to execute a death row inmate than any other state that has carried out any executions."
In light of this ugly legal history, nearly all of which pre-dates Gov Wolf's election, I think the Pennslyvania House owes a lot more to victims than just passing a seemingly inconsequential resolution. Any and all serious proponents of the death penalty in the Pennsylvania legislature should feel duty-bound to conduct the hard work involved in fixing and making operational a broken capital system. But, because politic rhetoric so often matters more than policy fixes, I fear justice delayed and justice denied will remain the Keystone capital characteristic.
"From power tools to helicopters: Amazing prison escapes"
The title of this post is the headline of this new CNN piece which provides a little history and perspective in the wake of the remarkable New York prison escape this week by two convicted murderers. Here is how the piece sets up a discussion of other notable prison breaks, as well as my "favorite" from the CNN list:
Most recently, two convicted killers used power tools to break out of a prison in New York state. The inmates cut open a steel wall and worked their way through a labyrinth of pipes and shafts before escaping through a manhole. But theirs isn't the only astonishing escape. Here are four other bizarre prison breaks:...
Choi Gab-bok had a lot of time to kill during his 23 years behind bars. So the convicted robber got really good at yoga -- a skill that helped him slip away from a police station jail in Daegu, South Korea.
One night in 2012, Choi waited for officers to fall asleep before squeezing out of his cell door's rectangular food slot, the Korean Yonhap News Agency said. To put things in perspective, Choi was about 5 feet, 5 inches tall and weighed 115 pounds. The food tray slot was about 18 inches wide and 6 inches tall.
Choi rubbed a skin ointment on himself to help glide between the bars more easily. It worked, and he wiggled his way to freedom. But six days later, Choi was caught -- and put in a cell with a much smaller food slot.
Michigan teen, guilty of misdemeanor after encounter with girl claiming to be 17, facing extreme sex offender restrictions
This lengthy local story, headlined "'Old-fashioned scarlet letter': Elkhart 19-year-old fights sex offender status after encounter with Michigan teen," reviews a notable case highlighting problems with overly broad sex offender registry laws. The piece is subheadlined "During his five years of probation, he can’t have a smart phone or any other device that connects to the Internet, and he can’t live anywhere with Internet access," and here are excerpts:
As Zach Anderson sits in the Berrien County Jail in St. Joseph, Mich., his parents worry. And plead. And fight.
The young man from Elkhart, 19, pleaded guilty in Berrien County, Mich., Trial Court in March to a misdemeanor count of criminal sexual conduct for having sex — consensual sex — on Dec. 19, 2014, with a Niles, Mich., teen. She said she was 17, and met him in person after a whirlwind courtship in cyberspace that started with a meeting via the social app Hot or Not.
It turns out she was only 14, though, two years under the age of consent in Michigan. And now, Anderson finds himself sitting out a 90-day jail sentence, with another five years probation and, of particular concern to his parents, 25 years on Michigan’s sex offender registry. Worse yet, Les and Amanda Anderson, who run a small Elkhart media and printing company, fear their son could face a lifetime on Indiana’s sex offender registry on returning to the Elkhart area after his jail sentence is up.
“Here’s the thing: This mistake should not haunt him the rest of his life,” Les Anderson says from the family home in east Elkhart. That’s where his son — a 2014 Concord High School grad and Ivy Tech Community College student until his jailing — lived before Judge Dennis Wiley handed down the sentence on April 27.
In light of Zach Anderson’s age and clean criminal record, Wiley could have offered him leniency under Michigan’s Holmes Youthful Training Act, as his lawyer sought in sentencing. The Niles girl and her mom — whom the Elkhart Truth won’t name because the teen is a victim — even asked for leniency, asked that the case be dropped altogether.
“What do I say? I feel that nothing should happen to Zach,” the girl said at the first of his two sentencing hearings April 13, accompanied by her mother. “I, I mean I, I don’t know. I just ... if you feel like something should, I feel like the lowest thing possible.”
Her mom followed her daughter at the hearing. “I don’t want him to be a sex offender because he really is not and I know that there’s an age difference and I realize that (name deleted) was inappropriate that night, we didn’t know,” the mother said. She continued: “I’m very sorry and I hope you’ll really consider the fact of just dropping the case. I can’t say anything more than that. I hope you really will for all of our families.”
Wiley didn’t drop the case and ultimately denied Zach Anderson HYTA status, told him he’s “darn lucky” he got the deal he did. HYTA, geared to first-time offenders ages 17 to 21, allows eligible participants to expunge criminal convictions on complying with sentencing conditions, thus avoiding the stigma of a criminal record as they enter their adult years.
The criminal sexual conduct conviction and having to put his name on the list of sex offenders could have dramatic and far-reaching implications for Anderson, his dad says. Lost job and educational opportunities. Social stigmatization. Discrimination. Accordingly, the Andersons will fight the sentencing in court. They plan to argue for HYTA status based on what they and their backers believe to be discrepancies in the sentencing process.
“That is our goal: to get him off the list and be able to function as a normal person in society, be able to live his life like any other person. Because at the end of the day, this is the old-fashioned scarlet letter,” Les Anderson says. He went on: “My son, he’s not a danger to anybody. He’s not dangerous to society. … He’s not going to hurt a little girl. That’s not going to happen.” Even under HYTA guidelines, Zach Anderson would face punishment and repercussions. “It’s not a cake walk. There’s still classes and counseling and restrictions that go along with that. ... That is just much more reasonable than the extreme that he got,” says Amanda Anderson....
Per Hot or Not rules, those ages 13 to 17 are kept separate from users 18 and older. However, in creating a Hot or Not account, the 14-year-old Niles girl identified herself as 18 or over, John Gardiner, Zach Anderson’s first attorney, said in sentencing. After connecting on Hot or Not, the two texted back and forth and, along the way, the girl told Zach Anderson she was 17. He asked her for pictures “of intimate body parts,” Jerry Vigansky, an assistant Berrien County prosecutor, said at sentencing.
Two days after the initial contact, on Dec. 19, they met, according to the girl’s account to the Berrien County Sheriff’s Department responding officer, or R/O, who interviewed her. Authorities got involved, ultimately resulting in the criminal charges, after the girl’s mother called for help the evening of Dec. 19, wondering where her daughter was as she met with Zach Anderson. She worried the girl would miss a dose of medicine....
Call their social app-enabled rendezvous a cautionary tale of the times, one of the consequences of the high-tech, always-connected, Internet-everywhere age we live in. That’s how Wiley, the judge, seemed to view it, as did Vigansky, the prosecuting attorney, and even Gardiner, Zach Anderson’s original lawyer....
Vigansky said there had been “a little rash” of encounters in Berrien County of late like the one between Zach Anderson and the 14-year-old girl. There had been two of them, anyway. He took a dim view, sarcastically alluding to “this great website called Hot or Not.”
“You went online, to use a fisherman’s expression, trolling for women, to meet and have sex with,” scolded Wiley. “That seems to be part of our culture now. Meet, hook up, have sex, sayonara. Totally inappropriate behavior. There is no excuse for this.”...
Per Wiley’s sentence, Zach Anderson faces a long list of restrictions during the five years of probation. He can’t have a computer, except for schooling. Can’t have a smart phone or any other device that connects to the Internet. Can’t live anywhere with Internet access. Can’t have an account with Facebook or any other online social network.
He can’t have contact with anyone 17 or younger, his siblings excepted. Can’t live within 1,000 feet of a school. He faces a daily 8 p.m. to 6 a.m. home curfew. He’s to continue his studies, in consultation with his field agent, but can’t take any computer or computer science classes, which had been the planned focus of his Ivy Tech education. “This is what got him in trouble in the first place,” the judge said in sentencing.
To Les Anderson, the restrictions are extreme, the requirement to get on the sexual offender registry unnecessary. “Instead of trying to rehabilitate people, they set them up to fail because there are so many restrictions on them,” he said. That’s why he, his wife and the rest of the family are fighting. They’ve hired Grabel to investigate the legal recourses potentially at Zach Anderson’s disposal, especially to ease the registry requirement. They’ve created a Facebook page, “Justice 4 Zach Anderson, Elkhart.” They seek donations to help offset legal and other costs, $30,900 and counting. They’re selling yellow “Justice 4 Zach” T-shirts.
“Anybody that’s got common sense looks at this and they’re just blown away,” says Les Anderson. “It comes back to the punishment does not fit the crime. Regardless of how you feel about this, the punishment is way too harsh.”
June 9, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (13)
June 8, 2015
"America's Largest Mental Hospital Is a Jail"
The title of this post is the headline of this new Atlantic article which carries this subheadline: "At Cook County, where a third of those incarcerated suffer from psychological disorders, officials are looking for ways to treat inmates less like prisoners and more like patients." Here is an excerpt from the piece:
At Cook County Jail, an estimated one in three inmates has some form of mental illness. At least 400,000 inmates currently behind bars in the United States suffer from some type of mental illness—a population larger than the cities of Cleveland, New Orleans, or St. Louis—according to the National Alliance on Mental Illness. NAMI estimates that between 25 and 40 percent of all mentally ill Americans will be jailed or incarcerated at some point in their lives.
“This is typically what I see everyday,” said Elli Petacque-Montgomery, a psychologist and the deputy director of mental health policy for the sheriff’s department. She showed me a medical intake form filled with blue pen scribbles. Small boxes listed possible illnesses: manic depression, bipolar disorder, ADHD, schizophrenia, and so on. The forms are designed to help jail officials identify which inmates have mental illnesses as early as possible. Details from four new inmates could fit on a single sheet. She showed me a completed one. “Of those four,” she said, pointing to the descriptors, “I have three mentally ill people.”...
What sort of crimes had these people been arrested for? One kid on the list had a tendency toward aggression, but officials emphasized that the overwhelming majority were “crimes of survival” such as retail theft (to find food or supplies) or breaking and entering (to find a place to sleep). For those with mental illness, charges of drug possession can often indicate attempts at self-medication. “Even the drugs of choice will connect to what the mental illness is,” Petacque-Montgomery told me. People with severe depression might use cocaine “to lift their mood.” Those who hear voices and have schizophrenia or bipolar disorder often turn to heroin to regulate their sleep. Marijuana use “is just constant for kids with ADD and depression,” she notes. “I’ll ask, ‘Can you eat or sleep without this?’ and they’ll say no.’”
Chicagoans with mental illness end up in jail through a chain of small decisions by different local officials. Police officers can choose to take a mentally ill person home, to the hospital, to a shelter—or to jail. Prosecutors can choose whether or not to not bring charges. Judges can choose to set higher or lower bail amounts, thereby determining whether poorer defendants can avoid pre-trial detention and keep their jobs and housing. But once a person reaches the jail, the local sheriff can’t simply decline to take them into custody.
Can any significant federal prison sentence truly be "reasonable" for any of the Kettle Falls Five marijuana defendants?
The question in the title of this post is a serious question I have in light of the remarkable federal marijuana prosecution that reaches sentencing in Washington state later this week. The case involves the so-called "Kettle Falls Five," a group of medical marijuana patients subject (somewhat mysteriously) to aggressive federal criminal prosecution. Regular readers may recall prior posts about the case; this new lengthy Jacob Sullum Forbes piece, headlined "In A State Where Marijuana Is Legal, Three Patients Await Sentencing For Growing Their Own Medicine," provides this review and update:
During their trial at the federal courthouse in Spokane last March, Rhonda Firestack-Harvey and her two fellow defendants—her son, Rolland Gregg, and his wife, Michelle Gregg—were not allowed to explain why they were openly growing marijuana on a plot in rural northeastern Washington marked by a big green cross that was visible from the air. According to a pretrial ruling, it was irrelevant that they were using marijuana for medical purposes, as permitted by state law, since federal law recognizes no legitimate use for the plant. But now that Firestack-Harvey and the Greggs have been convicted, they are free to talk about their motivation, and it might even make a difference when they are sentenced next Thursday.
Federal drug agents raided the marijuana garden, which was located outside Firestack-Harvey’s home near Kettle Falls, in 2012. In addition to the three defendants who are scheduled to be sentenced next week, the U.S. Attorney’s Office for the Eastern District of Washington charged Firestack-Harvey’s husband, Larry Harvey, and a family friend, Jason Zucker. Dubbed the Kettle Falls Five, all had doctor’s letters recommending marijuana for treatment of various conditions, including gout, anorexia, rheumatoid arthritis, degenerative disc disease, and chronic pain from a broken back. Last February prosecutors dropped the charges against Harvey because he has terminal cancer. Zucker, who had a prior marijuana conviction, pleaded guilty just before the trial and agreed to testify against the other defendants in exchange for a 16-month sentence, which was much shorter than the 15-year term he could have received in light of his criminal history....
In the end, after hearing testimony for five days and deliberating for one, the jurors acquitted the defendants of almost all the charges against them, which could have sent them to prison for 10 years or more. “They all saw what was going on,” Telfeyan says. “They understood what the facts were, and they came back with a verdict exactly consistent with what actually happened, which was just a family growing medical marijuana for their own personal use.”
The jury rejected allegations that the defendants distributed marijuana and conspired to do so, that they grew more than 100 plants (the cutoff for a five-year mandatory minimum) over the course of two years, that they used firearms (the Harveys’ hunting guns) in connection with a drug crime (another five-year mandatory minimum), and that Firestack-Harvey maintained a place (i.e., the home she shared with her husband) for the purpose of manufacturing and distributing marijuana. The one remaining charge — cultivation of more than 50 but fewer than 100 plants — does not carry a mandatory minimum penalty, which gives Rice broad discretion when he sentences Firestack-Harvey and the Greggs next Thursday. He can even consider the reason they were growing marijuana.
“But for state-sanctioned medical prescriptions authorizing each member of the family to grow 15 marijuana plants, this family would not be before the Court today,” the defense says in a sentencing memo filed last week [available here]. “Due to the exemplary contributions each family member has made to this society, their lack of criminal records, and the unique role state-sanctioned medical authorizations played in this case, Defendants respectfully seek a probationary sentence with no incarceration.”
The federal probation office recommended sentences of 15 to 21 months, while the prosecution is seeking 41 to 51 months [gov sentencing memo here], based mainly on allegations that were rejected by the jury, including cultivation in 2011 as well as 2012. To give you a sense of how realistic the government’s assumptions are, it estimates that each plant grown in 2011 produced more than a kilogram of marijuana. As the defense notes, that figure “flies in the face of both empirical reality and legal precedent,” since “numerous courts have recognized that a marijuana plant cannot yield anywhere near 1 kilogram of usable marijuana.” At one point in its sentencing memo, the prosecution even claims the defendants somehow managed to produce “1000 kilograms per plant.” I assume that’s a typo, but who knows? The government also thinks the 2012 harvest should be measured by the weight of the plants, including leaves, stems, water, and clinging dirt.
The prosecution’s insistence that Firestack-Harvey and the Greggs deserve to spend at least three and a half years in prison is puzzling, as is its willingness to posit super-productive, science fictional marijuana plants in service of that goal. But this case has been a puzzle from the beginning.
I assume that this federal prosecution started because federal authorities thought the defendants here were doing a whole lot more than what the feds were able to prove in court. For that reason, I can sort of understand why the feds started this prosecution way back in early 2012. But now, three years later, with the defendants acquitted on most charges (and now with lots of persons selling lots of recreational marijuana within the state), I have a very hard time understanding just how the feds can think a lengthy prison sentence is "not greater than necessary" for these defendants in light of the nature and circumstances of the offense and the history and characteristics of these defendants.
I have in the excerpt above links to the parties' sentencing briefs, and I sincerely seek input on the question in the title of this post in light of some of the arguments made thereing. Notably, the government's sentencing memo is only focused on dickering over the applicable guideline range; it does not appear to make any formal arguments for a signficant prison sentence in light of all the 3553(a) sentencing factos that judges now must consider after Booker. So I suppose it is still possible that even the government will, come the actual sentencing later this week, acknowledge that this remarkable case does not justify any significant federal prison sentence for any of the defendants with no criminal history. But if the government seeks a prison term, and if the judge imposes a prison term, I would be ready and eager to argue on appeal for these defendants that such a punishment cannot possibly be reasonable in light of all the sentencing commands Congress put into 3553(a).
Prior related posts:
- Family of medical marijuana patients in Washington turn down plea and set up notable federal trial
- New York Times op-ed laments Kettle Falls 5 federal marijuana prosecution
- Three of "Kettle Falls Five" convicted on least serious federal marijuana charges in Washington
June 8, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)
SCOTUS grants cert on a federal case concerning restraining assets for hiring defense counsel and denies cert in notable gun case
The Supreme Court started its work this morning with this order list that include a grant of certiorari in one federal criminal case, Luis v. US. This SCOTUSblog page provides this account of the issue the case presents:
Whether the pretrial restraint of a criminal defendant's legitimate, untainted assets (those not traceable to a criminal offense) needed to retain counsel of choice violates the Fifth and Sixth Amendments.
In addition, at the end of the orders list, the Justices denied cert in a gun case from San Francisco, which prompted a lengthy dissent by Justice Thomas (joined by Justice Scalia). Here is how that dissent begins:
“Self-defense is a basic right” and “the central component” of the Second Amendment’s guarantee of an individual’s right to keep and bear arms. McDonald v. Chicago, 561 U. S. 742, 767 (2010) (emphasis deleted). Less than a decade ago, we explained that an ordinance requiring firearms in the home to be kept inoperable, without an exception for self-defense, conflicted with the Second Amendment because it “ma[de] it impossible for citizens to use [their firearms] for the core lawful purpose of selfdefense.” District of Columbia v. Heller, 554 U. S. 570, 630 (2008). Despite the clarity with which we described the Second Amendment’s core protection for the right of self-defense, lower courts, including the ones here, have failed to protect it. Because Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document, I would have granted this petition.
As I have noted in lots of prior posts in the wake of the Heller and McDonald rulings, if it is really true that "Second Amendment rights are no less protected by our Constitution than other rights enumerated in that document," a lot of laws criminalizing and severely punishing mere gun possession by those with a distant criminal past might be constitutionally suspect. But this dissent from Justice Thomas, which garnered only one additional Justice, confirms my belief that the majority of the Supreme Court does not really agree that the Second Amendment works just like most other rights protected by the Constitution.
Extended profile of judge strugging with extended mandatory minimum federal drug sentences
The Washington Post has this lengthy article discussing the sentencing struggles of US District Judge Mark Bennett. The piece is headlined "Against his better judgment: In the meth corridor of Iowa, a federal judge comes face to face with the reality of congressionally mandated sentencing." Here are excerpts from the first part of the piece:
U.S. District Judge Mark Bennett entered and everyone stood. He sat and then they sat. “Another hard one,” he said, and the room fell silent. He was one of 670 federal district judges in the United States, appointed for life by a president and confirmed by the Senate, and he had taken an oath to “administer justice” in each case he heard. Now he read the sentencing documents at his bench and punched numbers into an oversize calculator. When he finally looked up, he raised his hands together in the air as if his wrists were handcuffed, and then he repeated the conclusion that had come to define so much about his career.
“My hands are tied on your sentence,” he said. “I’m sorry. This isn’t up to me.”
How many times had he issued judgments that were not his own? How often had he apologized to defendants who had come to apologize to him? For more than two decades as a federal judge, Bennett had often viewed his job as less about presiding than abiding by dozens of mandatory minimum sentences established by Congress in the late 1980s for federal offenses. Those mandatory penalties, many of which require at least a decade in prison for drug offenses, took discretion away from judges and fueled an unprecedented rise in prison populations, from 24,000 federal inmates in 1980 to more than 208,000 last year. Half of those inmates are nonviolent drug offenders. Federal prisons are overcrowded by 37 percent. The Justice Department recently called mass imprisonment a “budgetary nightmare” and a “growing and historic crisis.”
Politicians as disparate as President Obama and Sen. Rand Paul (R-Ky.) are pushing new legislation in Congress to weaken mandatory minimums, but neither has persuaded Sen. Charles E. Grassley (R-Iowa), who chairs the Senate Judiciary Committee that is responsible for holding initial votes on sentencing laws. Even as Obama has begun granting clemency to a small number of drug offenders, calling their sentences “outdated,” Grassley continues to credit strict sentencing with helping reduce violent crime by half in the past 25 years, and he has denounced the new proposals in a succession of speeches to Congress. “Mandatory minimum sentences play a vital role,” he told Congress again last month.
But back in Grassley’s home state, in Iowa’s busiest federal court, the judge who has handed down so many of those sentences has concluded something else about the legacy of his work. “Unjust and ineffective,” he wrote in one sentencing opinion. “Gut-wrenching,” he wrote in another. “Prisons filled, families divided, communities devastated,” he wrote in a third.
And now it was another Tuesday in Sioux City — five hearings listed on his docket, five more nonviolent offenders whose cases involved mandatory minimums of anywhere from five to 20 years without the possibility of release. Here in the methamphetamine corridor of middle America, Bennett averaged seven times as many cases each year as a federal judge in New York City or Washington. He had sentenced two convicted murderers to death and several drug cartel bosses to life in prison, but many of his defendants were addicts who had become middling dealers, people who sometimes sounded to him less like perpetrators than victims in the case reports now piled high on his bench. “History of family addiction.” “Mild mental retardation.” “PTSD after suffering multiple rapes.” “Victim of sexual abuse.” “Temporarily homeless.” “Heavy user since age 14.”
Bennett tried to forget the details of each case as soon as he issued a sentence. “You either drain the bathtub, or the guilt and sadness just overwhelms you,” he said once, in his chambers, but what he couldn’t forget was the total, more than 1,100 nonviolent offenders and counting to whom he had given mandatory minimum sentences he often considered unjust. That meant more than $200 million in taxpayer money he thought had been misspent. It meant a generation of rural Iowa drug addicts he had institutionalized. So he had begun traveling to dozens of prisons across the country to visit people he had sentenced, answering their legal questions and accompanying them to drug treatment classes, because if he couldn’t always fulfill his intention of justice from the bench, then at least he could offer empathy. He could look at defendants during their sentencing hearings and give them the dignity of saying exactly what he thought.
“Congress has tied my hands,” he told one defendant now. “We are just going to be warehousing you,” he told another. “I have to uphold the law whether I agree with it or not,” he said a few minutes later.
"Does failed execution attempt mean Ohio prisoner can avoid death penalty?"
The question in the title of this post is both the headline of this Columbus Dispatch article and the notable novel constitutional question facing the Ohio Supreme Court this week. Here is the backstory:
Ohio’s unusual pending death-penalty case, involving an inmate the state already tried but failed to execute, will be argued on Tuesday before the Ohio Supreme Court. Attorneys for Romell Broom contend that the state would be guilty of unconstitutional double jeopardy if it tries to execute him a second time. They said in a court filing that the state’s contention that their client didn’t suffer physically during a botched execution on Sept. 15, 2009, “ignores the unnecessary psychological suffering Broom endured during two hours of lawless chaos."
Representatives for Attorney General Mike DeWine counter that what happened on Sept. 15, 2009, wasn’t a failed execution but a breakdown in the lethal-injection process, and a new execution should proceed. They argue that the U.S. Constitution doesn’t promise that executions will be pain-free and that what happened to Broom wasn’t unconstitutional “cruel and usual punishment.”
The attempted execution of Broom, 59, on Sept. 15, 2009, was called off by Gov. Ted Strickland after a prison medical team spent two tense hours unsuccessfully trying to attach IV lines for lethal injection. The execution was rescheduled but never took place because Broom’s public defender attorneys filed numerous appeals.
Broom was convicted and sentenced to death for abducting, raping and stabbing to death 14-year-old Tryna Middleton of Cleveland as she walked home from a football game on Sept. 21, 1984. All evidence in the case, including DNA test results, showed Broom was the girl’s killer.
Thus, the failed execution, and not Broom’s guilt or innocence, will be the focus of oral arguments at 9 a.m. on Tuesday before the Ohio Supreme Court. Broom’s case is unique in Ohio’s modern capital-punishment history, being one of only two known cases nationally in which an execution was halted after it began. The other one was Willie Francis, a 17-year-old killer who died on the second try in Louisiana’s electric chair on May 9, 1947, having survived a botched execution a year earlier.
June 7, 2015
"Expunging America's Rap Sheet in the Information Age"
The title of this post is the title of this notable new paper by Jenny Roberts now available via SSRN. Here is the abstract:
As the Wall Street Journal recently put it, “America has a rap sheet.” Today, between 70 and 100 million people in the United States have a criminal arrest or conviction record, and anyone — including employers, landlords, and data collection companies — can easily access these records on line. At the same time, collateral consequences of even the most minor offenses have increased exponentially, affecting employment, housing, parenting, and just about every other aspect of daily life. The convergence of mass criminalization, ubiquitous criminal records, and pervasive collateral consequences is a major factor in the criminal justice system’s troubling racial and economic disparities.
States are reacting to the criminal records crisis in different ways, with many focusing on expanding record sealing or expungement laws that currently range widely in the relief offered. The time has come for a well-tailored response to mass criminalization and collateral consequences in the information age. Sealing and expungement laws must be part of a multi-faceted approach to alleviating harmful consequences of a criminal record. The goal of limiting access to and use of relevant criminal records to those with a legitimate need to know is best advanced through focused legislative reform.
This Article describes why well-crafted sealing and expungement laws matter, responds to the major moral and practical arguments against such laws, and situates sealing and expungement as part of a comprehensive scheme for relief from a criminal record. Reforms might include regulating data brokers to ensure that sealed or expunged records are removed from their databases, banning employers from asking about arrests not ending in conviction or expunged convictions in the absence of a statutory mandate to do so, and offering employers who comply with such rules immunity from certain negligent hiring lawsuits.
Should a MasterChef episode include a nutraloaf/prison cooking challenge?
The question in the title of this post is prompted by this local article headlined "The best prison food you've ever/never tasted." Because I aspire to be a foodie and love watching MasterChef, and especially because I am study prison history and the subjective experiences of incarceration, I wish I could experience the notable event reported the piece. Here is what I am missing:
The old movies refer to unruly inmates' being fed a diet of bread and water as punishment. Nowadays, they're served something called nutraloaf. Nutraloaf recipes vary among the states. Usually having the consistency of a dry muffin, the dish contains elements of the basic food groups — most notably grains and beans. Consumed with water, it will keep a person alive.
Maybe so, but "it's absolutely horrible," said Chris, a worker at Eastern State Penitentiary, the historical attraction in Fairmount. "But then again, state [prison] food is absolutely horrible." Chris speaks from experience. He spent 2½ years at the State Correctional Institution at Graterford after what he described as a conviction for a nonviolent drug-related offense. He was released last year. Chris — who asked that his last name not be used — now works at the prison.
This weekend (June 6 and 7) for Eastern State's annual Prison Food Weekend, a caterer will make the nutraloafs served in state prisons in Idaho (the breakfast version), California, Illinois (the vegan option), Vermont, and Pennsylvania. Visitors will get a review card, and organizers will encourage them to rank and describe the look, smell, and taste of each.
Pennsylvania's has cooked rice, dry oatmeal and mashed garbanzo beans. It's simply bland. The Illinois version contains applesauce, tomato paste, and garlic powder. So nasty, inmates at one prison sued (unsuccessfully) to get it off the menu.
The Eastern State visitors can counter the sampling with Chris' chi chi. Chi chi is a casserole-like dish made on the sly entirely of ingredients bought from the prison commissary or vending machines. Ingredients are blended in a plastic bag, which is cooked in boiling water. Boiling water in a prison cell? "You make a stinger," Chris said, describing a crude immersion heater made from the end of an extension cord wrapped around nail clippers.
When you're locked up, food is even more comforting, Chris said. "I'm Italian," he said. "Sunday night is home cooking." Chris said new inmates can expect the older guys to treat them to a home-cooked meal. "Your first two weeks, you won't be eating much" from the cafeteria, Chris said. "You have to be starving to want to eat that."
Chi chi is as unique as the individual making it. Some are as simple as cold tuna and mayo. Others, such as one that Chris made earlier this week at the prison for a demo, contain packaged ramen noodles, cheese curls, summer sausage, pepperoni, barbecue sauce, honey, pickles, chili powder, and meatless chili. The result — utter deliciousness the ramen was softened by the chili, barbecue sauce and honey. The cheese curls provided a hint of crunch. The pepperoni and sausage gave it texture.
And if there was enough sodium in a few bites to choke a mule? "Sodium is the least of your concerns," said Chris, with a small smile.