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July 18, 2015

"Prosecutors Rally Against Sentencing Reform, Say Build More Prisons"

The title of this post is the headline of this notable new piece in U.S. News & World Report. Here are excerpts:

Nervous federal prosecutors attempted to rally opposition Friday to criminal sentencing reform in response to President Barack Obama’s week of issuing commutations and making pro-reform speeches....

“The federal criminal justice system is not broken,” Steve Cook, the association's president, said at a lightly attended event in the nation's capital. “What a huge mistake it would be,” he said, to change sentencing laws.

Cook predicted the crime rate would rise and prosecutors would lose a tool to extract information if laws were made more lenient. He also denounced reform proponents for saying nonviolent offenders are being ensnared by tough Clinton-era drug laws. “They have misled the public every time they say, 'We’re talking about nonviolent drug offenders,'” he said. “Drug trafficking is inherently violent. … If you’re not willing to engage in violence [then] you will be out of the business quickly, or worse.”

Cook said the small number of inmates whose sentences have been shortened by Obama – the president has issued 76 drug crime commutations total, 46 of them this week – shows there’s not much of a problem with people serving unreasonably long sentences.

Rather than focus on reducing sentences, he said, the government should consider building more prison facilities. “Do I think it would be a good investment to build more [prisons]? Yeah, no question about it!” he said....

Molly Gill, government affairs counsel at the advocacy group Families Against Mandatory Minimums, says Cook’s assertion the crime rate would rise after sentencing reform is a “demonstrably false claim and a shameful scare tactic.” In Michigan, New York and other states, she says, crime rates did not spike after mandatory minimums were repealed....

Cook, who was joined by two other federal prosecutors, made much of his speech Friday about societal ills associated with drug addiction, from babies going through withdrawal to people stealing from their families and dying from overdoses and car accidents. “There’s a pyramid of individuals who are affected by [drug dealers],” he said. “Many view [drug trafficking] as more serious than murder.”

He declined to say if state-legal recreational marijuana businesses and regulators in Colorado and Washington state should face marijuana-related mandatory minimums for breaking federal law.

Cook’s colleagues did not speak at the news conference. He described the event as the first of its kind by the group, which claims to represent 1,500 assistant U.S. attorneys, about 30 percent of the total.

Former President Bill Clinton, one of the leaders responsible for establishing inflexible penalties, this week said doing so led to the imprisonment of a lot of "minor actors for way too long." The association views his reversal as “misinformed,” Cook said: “We think he was right before.”

July 18, 2015 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10)

Is Prez Obama truly "close" to opposing the death penalty?

The question in the title of this of this post is prompted by this recent Washington Post Wonkblog posting, which gets started this way:

A long-time associate and mentor to President Obama says the president is "close" to opposing the death penalty but not quite there yet -- and needs to be pushed to do it.

"He's not there yet, but he's close, and needs some help," said Charles J. Ogletree, Jr., a law professor at Harvard University and prominent death penalty opponent who taught the president and First Lady Michelle Obama when both were students there. The legal scholar said he was planning on meeting with his former student next month and would confront him about the issue then.

As Obama has increasingly confronted racial disparities in the criminal justice system and in American society in in his second term -- including on Tuesday before the National Association for the Advancement of Colored People -- Obama has committed to doing more to address these issues in his final year-and-a-half. This week alone, he commuted the sentences of more than 40 low-level offenders, and is visiting a prison in Oklahoma today, becoming the first president to visit a federal penitentiary.

Obama, who has said he supports executions in some circumstances but raised concerns about the application of capital punishment, has not yet focused in this new push on racial disparities in capital trials -- the most serious cases before any criminal court. Now, just as he publicly changed his opinions on other major social issues in which public opinion changed, like gay marriage, some have wondered whether the president will change his perspective. As the charts below show, support for the death penalty, for decades strong in the United States, has been declining in recent years, just as support for gay marriage has increased.

Ogletree predicted that the president will eventually have no choice but to oppose the death penalty, confronted with the data on racial disparities in capital punishment, as well as on the costs of litigating capital cases and on the number of defendants who are eventually exonerated. "Even if he doesn't change his mind in the next year and a half, I think the public's point of view is going to influence him," Ogletree said. "As a citizen, he can have an enormous amount of influence."

July 18, 2015 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (3)

July 17, 2015

Gov Christie joins growing chorus of GOP leaders urging reform of "broken" criminal justice system

Download (15)As highlighted by this Politico report, headlined "Chris Christie calls for ‘fresh approach’ to criminal justice," the only GOP presidential candidate with a long history as a federal prosecutor has now joined the ever-growing group of mainstream Republican voices advocating for significant criminal justice reform. Here are the basics of what the New Jersey Governor has to say on this front:

Chris Christie, decrying the large number of Americans in prison, on Thursday said it’s time to fix what he called “a broken criminal justice system.”

“Today, our prisons contain more people than any other nation in the world – 25 percent of the world’s prisoners,” the New Jersey governor and 2016 presidential candidate said in a speech in Camden, New Jersey. “I believe in American exceptionalism, but that’s not an achievement I think any of us want.”

Christie’s call for action came almost at the same time as President Barack Obama’s tour of a federal prison in El Reno, Oklahoma on Thursday as part of his administration’s push for criminal justice reform.

In recent months, a series of deaths of unarmed black men by white law enforcement officers, and resulting riots, has sparked a national discussion about racial tensions, policing, and the U.S. prison system. It’s given a boost to a rare bipartisan push on justice reform, especially mandatory minimum sentences that disproportionately affect minority communities.

On Thursday, Christie talked about the importance of getting violent criminals off the streets, but he said harsh prison sentences don’t solve everything. “Peace on our streets is more than just the absence of violence. Justice isn’t something we can jail our way to. Justice is something we have to build in our communities,” Christie said.

He also framed his argument in terms of conservative values. “I happen to be pro-life, and I believe very strongly in the sanctity of life,” Christie said. “But I believe that if you’re going to be pro-life, then you ought to care about life beyond the womb. An unborn child is life. But life is also that 16 year-old addict lying on the floor of the county lockup.”

Specifically, Christie pointed to his own record in New Jersey as a path forward. He said New Jersey’s drug court program works, calling it a policy that keeps people out of prison and saves money. He said if he becomes president he will replicate it on the national level.

“Drug court is about making every one of our citizens long-term productive members of society again – because we should want that for everyone,” Christie said. He said that first time offenders of non-violent crimes should get treatment and non-custodial sentencing options. He also said that when people are put behind bars there needs to be a plan for rehabilitation for when they get out.

I am particularly intrigued to hear a GOP Presidential candidate with a long history as a federal prosecutor (and whose campaign slogan is "telling it like it is") now calling our criminal justice system broken. Another long-time former federal prosecutor, Bill Otis, has frequently taken to Crime & Consequences to complain when former Attorney General Eric Holder said our current system is broken. And in a comment dialogue following his latest posting in this arena, Bill seemed to suggest that some establishment Republicans may only be pretending that they share such a view in order to get campaign dollars from the Koch brothers. But given Gov. Christie's personal background and campaign themes, I would be really surprised if he would now be saying the system is broken if he did not really believe it.

July 17, 2015 in Campaign 2016 and sentencing issues, Drug Offense Sentencing, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

You be the federal judge: should tax cheating former rep Michael Grimm go to prison?

As previewed by this AP article, headlined "Ex-NY Congressman Grimm Faces Sentencing in Tax Case," a high-profile white-collar defendant is due to be sentenced in federal court today. Here are the basics about the case to enable answering the question posed in the title of this post:

Lawyers for former U.S. Rep. Michael Grimm have asked a judge to spare him a prison term at his sentencing, while prosecutors argue he deserves at least 2 years behind bars for tax evasion. The sentencing Friday in federal court in Brooklyn before U.S. District Judge Pamela Chen follows Grimm's guilty plea late last year to aiding in filing a false tax return — a charge that stemmed from an investigation into the Staten Island Republican's campaign financing.

Prosecutors say the tax fraud began in 2007 after Grimm retired from the FBI and began investing in a Manhattan eatery called Healthalicious.  An indictment accused him of underreporting more than $1 million in wages and receipts to evade payroll, income and sales taxes, in part by paying immigrant workers, some of them in the country illegally, in cash.

Grimm, 45, won re-election in November while fighting the charges, but later resigned. In court papers asking for a sentence of probation, defense lawyers called Grimm's offense "an aberration in an otherwise remarkable life in selfless service of his country," including a stint in the Marine Corps.  They also argued that losing his career in Congress was punishment enough.

Grimm "is tremendously remorseful over his offense," they wrote.  "He understands that his tax violation is not something to be taken lightly, and he is anguished over his wrongdoing and will live with the shame of it the rest of his life."

Prosecutors countered by telling the judge Grimm's record of "falsely minimizing his criminal conduct and impugning anyone who questions him is indicative of an individual who has not come to terms with his own crimes."  The government papers cite a news conference last year outside the courthouse where Grimm called the case "a political witch hunt."  The papers also refer to an episode in which Grimm threatened to throw a local cable TV news reporter off the balcony of the capitol for asking about the campaign financing inquiry.

If there was a formal sentencing enhancement for acting like a pompous ass, I might expect Grimm to be heading to the federal pen. But I would guess that Grimm's ultimate willingness to plead guilty and resign from Congress will help him secure a nonprison punishment in this case.

UPDATE: This local article details that I was wrong in my guess that Grimm would not be sentenced to prison; as the headline explains, "Michael Grimm gets 8 months in prison at sentencing."

July 17, 2015 in Offender Characteristics, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (2)

"John Boehner Says Many People In Prison 'Really Don't Need To Be There'"

The title of this post is the headline of this new Huffington Post report which highlights that a very important GOP member of Congress has expressed his support for significant federal sentencing reform.  Here are the highlights: 

House Speaker John Boehner (R-Ohio) said on Thursday that there were many people in prison "that really don't need to be there," telling reporters that he wants bipartisan legislation proposing criminal justice system reform to come to the House floor. "I've long believed that there needed to be reform of our criminal justice system," Boehner said. "Some of these people are in there under what I'll call flimsy reasons."

Boehner made the remarks while stating his support for the SAFE Justice Act, legislation introduced by Reps. Jim Sensenbrenner (R-Wis.) and Bobby Scott (D-Va.) last month that would implement a wide range of criminal justice reforms, including narrowing the use of mandatory sentences for some nonviolent drug offenders.

Among other measures, the bill would favor alternative sentences "in limited circumstances, in which the defendant is a first-time, low-level, nonviolent offender who is capable of being supervised by probation and has not been convicted of a crime of violence," or other serious offenses. The bill is currently sitting in the House Judiciary Committee.

Boehner's support is encouraging, both Sensenbrenner and Scott told The Huffington Post. “Chairman Sensenbrenner and I have been working for months to put together a bill that includes bipartisan, evidence-based, state-tested solutions to reduce crime and save money," Scott said in a statement. "I am encouraged by Speaker Boehner’s endorsement of the SAFE Justice Act and hope that his support will help us continue to build bipartisan momentum to make these changes law.”

Prior related posts:

July 17, 2015 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Previewing the penalty phase after James Holmes found guilty on all charges

This article, headlined "After the guilty verdict: What happens next in theater shooting case to decide James Holmes' fate?," provides a preview of what will define the penalty phase for the Colorado mass shooter after his conviction on multiple murder counts on Thursday. Here are the basics:

Now that the gunman has been found guilty on all 165 counts, the court is preparing to move to the part of the trial where a sentence will be determined. Prosecutors are seeking the death penalty for James Holmes, who on Thursday was found guilty of murdering 12 people, injuring 70 others and assembling incendiary booby-traps inside his Aurora apartment....

In the first portion of the penalty process, the prosecution must prove to the jury beyond a reasonable doubt that the crimes included at least one statutory aggravating factor. There are several such factors in Colorado, but these are the ones that might apply to this case:

  • The defendant committed the offense in an especially heinous, cruel, or depraved manner
  • In the commission of the offense, the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense
  • The defendant intentionally killed a child who has not yet attained twelve
  • The defendant unlawfully and intentionally, knowingly, or with universal malice manifesting extreme indifference to the value of human life generally, killed two or more persons during the commission of the same criminal episode

Based on the defense team's statements in court Thursday evening, that phase of the case is only expected to last a few hours but the jury does have to deliberate and agree to move on.

If they do move to the next phase, jurors will be asked to hear mitigating factors presented by the defense. At this point, they're likely to hear from family and friends of the convicted shooter who could testify about his life. They are also likely to present information about his mental illness. Mitigating factors under Colorado law that could be included in this case are:

  • The defendant's capacity to appreciate wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution
  • The defendant was under unusual and substantial duress, although not such duress as to constitute a defense to prosecution; or
  • The emotional state of the defendant at the time the crime was committed
  • The absence of any significant prior conviction
  • The extent of the defendant's cooperation with law enforcement officers or agencies and with the office of the prosecuting district attorney
  • The good faith, although mistaken, belief by the defendant that circumstances existed which constituted a moral justification for the defendant's conduct
  • The defendant is not a continuing threat to society
  • Any other evidence which in the court's opinion bears on the question of mitigation.

After hearing those presentations, the jury needs to deliberate again to decide if the mitigating factors outweigh the aggravating factors. If they do, the case will move to the third phase.

In that third and final phase, the jury will be asked to judge the defendant's character against his crime. They need to decide if the prosecution has proven beyond a reasonable doubt if the death penalty is the appropriate penalty.

If at any point in the process the jury decides not to move to the next phase, the gunman would be sentenced to life imprisonment without the possibility of parole.  Also, the vote must be unanimous to deliver a death sentence.

July 17, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

July 16, 2015

Prez Obama makes history, and reflects, as he visits federal prison in Oklahoma

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This New York Times article, headlined "Obama, in Oklahoma, Takes Reform Message to the Prison Cell Block," provides a report on the President's historic visit to a federal corrections institute, FCI Reno:

They opened the door to Cell 123 and President Obama stared inside.  In the space of 9 feet by 10, he saw three bunks, a toilet with no seat, a small sink, metal cabinets, a little wooden night table with a dictionary and other books, and the life he might have had.

As it turns out, there is a fine line between president and prisoner.  As Mr. Obama became the first occupant of his high office to visit a federal correctional facility, he said he could not help reflecting on what might have been.  After all, as a young man, he had smoked marijuana and tried cocaine. But he did not end up with a prison term, let alone one lasting decades. “There but for the grace of God,” Mr. Obama said after his tour. “And that is something we all have to think about.” ...

Mr. Obama came here to showcase a bid to overhaul America’s criminal justice system in a way none of his predecessors have tried to do, at least not in modern times. Where other presidents worked to make life harder for criminals, Mr. Obama wants to make their conditions better.

With 18 months left in office, he has embarked on a new effort to reduce sentences for nonviolent offenders; to make it easier for former convicts to re-enter society; and to revamp prison life by easing overcrowding, cracking down on inmate rape and limiting solitary confinement.

What was once politically unthinkable has become a bipartisan venture.  Mr. Obama is making common cause with Republicans and Democrats who have come to the conclusion that the United States has given excessive sentences to too many nonviolent offenders, at an enormous moral and financial cost to the country.  This week, Mr. Obama commuted the sentences of 46 such prisoners and gave a speech calling for legislation to overhaul the criminal justice system by the end of the year.

He came to the El Reno Federal Correctional Institution on Thursday to get a firsthand look at what he is focused on.  Accompanied by aides, correctional officials and a phalanx of Secret Service agents, he crossed through multiple layers of metal gates and fences topped by concertina wire to tour the prison and talk with some of the nonviolent drug offenders he says should not be serving such long sentences.

The prison was locked down for his visit.  He was brought to Cell Block B, which had been emptied for the occasion.  Only security personnel were outside on the carefully trimmed grass yards.  The only inmates Mr. Obama saw were six nonviolent drug offenders who were selected to have a conversation with him recorded by the news organization Vice for a documentary on the criminal justice system that will air on HBO in the fall.

But those six made an impression.  “When they describe their youth and their childhood, these are young people who made mistakes that aren’t that different from the mistakes I made and the mistakes that a lot of you guys made,” Mr. Obama told reporters afterward.  “The difference is, they did not have the kind of support structures, the second chances, the resources that would allow them to survive those mistakes.”

He added that “we have a tendency sometimes to take for granted or think it’s normal” that so many young people have been locked up for drug crimes. “It’s not normal,” he said.  “It’s not what happens in other countries. What is normal is teenagers doing stupid things.  What is normal is young people who make mistakes.” If they had the same advantages he and others have had, Mr. Obama added, they “could be thriving in the way we are.”

Still, he made a distinction between nonviolent drug offenders like those he was introduced to here and other criminals guilty of crimes like murder, rape and assault. “There are people who need to be in prison,” Mr. Obama said. “I don’t have tolerance for violent criminals; many of them may have made mistakes, but we need to keep our communities safe.”

More than 2.2 million Americans are behind bars, and one study found that the size of the state and federal prison population is seven times what it was 40 years ago. Although the United States makes up less than 5 percent of the world’s population, it has more than 20 percent of its prison population. This has disproportionately affected young Hispanic and African-American men. And many more have been released but have convictions on their records that make it hard to find jobs or to vote.

In visiting El Reno, Mr. Obama got a look at a medium-security prison with a minimum-security satellite camp, housing a total of 1,300 inmates. He said the facility was an “outstanding institution” with job training, drug counseling and other programs, but had suffered from overcrowding. As many as three inmates have been kept in each of the tiny cells he saw.

“Three full-grown men in a 9-by-10 cell,” Mr. Obama said with a tone of astonishment. Lately, the situation has improved enough to get it down to two per cell. But, he said, “overcrowding like that is something that has to be addressed.”

Advocates said no president had ever highlighted the conditions of prisoners in such a fulsome way. “They’re out of sight and out of mind,” Cornell William Brooks, the president of the N.A.A.C.P., said in an interview. “To have a president say by his actions, by his speech, by his example, ‘You’re in sight and in mind of the American public and of this democracy,’ it’s critically important.”

But the president is not the only one these days. Republicans like Senators John Cornyn of Texas, Rand Paul of Kentucky, Charles E. Grassley of Iowa and Mike Lee of Utah have been working with their Democratic counterparts to develop legislation addressing such concerns.

Though I am not really expecting it, I would love for this kind of presidential visit to a prison to become a regular habit and something of a tradition. As President Obama stressed in his recent speech to the NAACP, most of the persons behind bars "are also Americans" and all presidents should be committed to serving all Americans, even those who are incarcerated.

July 16, 2015 in Criminal justice in the Obama Administration, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Lots of justified attention for Judge Alex Kozinski's new article, "Criminal Law 2.0"

Ninth Circuit Judge Alex Kozinski can gather the attention of lawyers and law professors for lots of reasons.  He is doing so these days because of his authorship of this provocative preface to the Georgetown Law Journal's 44th Annual Review of Criminal Procedure.

The piece is a must-read for everyone interested in criminal justice and criminal justice reform, and bloggers at Above the Law and at The Volokh Conspiracy are doing us the favor of highlighting especially interesting passages. Here are links to the bloggy Kozinski coverage so far:

12 reasons to worry about our criminal justice system, from a prominent conservative federal judge

Why Judges and Prosecutors Don’t Care If They’re Right

Kozinski On Juries, Sentencing, and Justice

Judge Kozinski on juries

July 16, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Highlighting significant disparities in DUI homicide sentences in Florida

The Miami Herald has this interesting new article highlighting big differences in sentences handed out in Florida when a drunk driver kills.  The piece is headlined "A Florida DUI death conviction means prison — but for how long varies widely," and here are excerpts:

At 20, Kayla Mendoza tweeted “2 drunk 2 care” before killing two young women in a drunk-driving crash. She tearfully admitted guilt, but, faced with angry relatives of the dead, a Broward judge slammed her with a 24-year prison term.

Days later, a longtime alcoholic named Antonio Lawrence, 57, faced a Miami-Dade judge for plowing into a Liberty City restaurant while driving drunk, killing two church elders. Relatives offered earnest forgiveness. Lawrence got 10 years.

Downstairs on the very same day, in a courtroom with zero television news cameras, Edna Jean-Pierre, 27, took responsibility for killing one person in a DUI crash, then killing another in a hit-and-run crash — while out on bail in the first case. A Miami-Dade judge, Dennis Murphy, sentenced her to four years in prison....

There is a four-year mandatory minimum for a DUI manslaughter conviction in Florida, but as these recent cases show, prison terms vary widely from cases to case and, a Miami Herald data analysis shows, from county to county.

In over 400 fatality cases resolved in Florida since 2012, the statewide average sentence for DUI manslaughter is just under 10 years behind bars, according to a Herald analysis of prison records. Miami-Dade by far had the most cases in that time span, 66, and among the lightest average sentences with convicts serving an average of just over 6 years in prison. In Broward’s 27 cases, defendants in that time span are serving just under 10 years. “Broward has both a reputation and a reality of being harsher than Miami-Dade,” said Miami defense attorney David Weinstein....

Legal experts say the the reasons for the disparity in sentences are complex. Outcomes are swayed by a host of factors: the strength of evidence, the skill of defense attorneys, circumstances of a crash, a defendant’s criminal history, media glare and the desires of a victim’s loved ones. “Victims drive to a good degree what the sentence outcome will be,” said Miami attorney Rick Freedman. “Victims who are not active, not engaged with the state attorney’s office, are going to see a lower number in the sentencing.”...

The four-year minimum mandatory term is a recent addition to the law, added in 2007 over concerns about judges being too soft on drunk drivers who kill. Known as the “Adam Arnold Act,” the law was named after a Key West teen who died in a crash in 1996, a case in which the driver got only three years of probation.

Drivers convicted in fatal hit-and-run crashes — whether alcohol is detected or not — now also face a minimum of four years in prison. Lawmakers in 2014 passed the law, named after Miami cyclist Aaron Cohen, whose death spurred outrage after a Key Biscayne man got only two years behind bars for killing Cohen in the hit-and-run wreck.

Drunk drivers who kill rarely escape at least some prison time, and prosecutors can waive the minimum four years mandatory — like in a highly criticized 2009 case in Miami Beach involving a pro football player. Donte’ Stallworth, who played for five NFL teams, got 30 days in jail and a lengthy probation for killing a pedestrian crossing the MacArthur Causeway. For prosecutors, there was no guarantee of victory at trial — the victim, Mario Reyes, was not in a crosswalk that dark morning. The decision to support the lighter sentence hinged on Reyes’ relatives, who pushed for the deal and also received an undisclosed settlement from Stallworth.

Forgiveness from families can make a difference. In Lawrence’s case, he met with families of the two church elders killed in the crash, became heavily involved helping recovering alcoholics and even surrendered to jail early before pleading guilty. Miami-Dade Circuit Judge Diane Ward gave him 10 years, by no means a slap on the wrist, but much less than the 34 years he faced had he been convicted at trial.

“You’re dealing with people who are not criminals, not people who went to harm others,” said Assistant State Attorney David I. Gilbert, who oversees traffic homicide cases. “They are average citizens who have made a very serious mistake. Different judges deal with different cases in different ways.” The emotional reaction of relatives also can clash, with some urging leniency and others calling for heavy punishment, Gilbert said.

July 16, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (7)

"From a First Arrest to a Life Sentence"

Sharanda-1mThe title of this post is the headline of this new Washington Post article, which carries the subheadline "Clemency is the only way out for the thousands of nonviolent drug offenders serving life terms in federal prison." Here are excerpts from the start of the lengthy piece, as well as some details of the profiled LWOP defendant's case:

Sharanda Jones — prisoner 33177-077 — struggled to describe the moment in 1999 when a federal judge sentenced her to life in prison after her conviction on a single cocaine offense.  She was a first-time, nonviolent offender.

“I was numb,” Jones said in an interview at the Carswell women’s prison here. “I was thinking about my baby.  I thought it can’t be real life in prison.” Jones, who will turn 48 next week, is one of tens of thousands of inmates who received harsh mandatory minimum sentences for drug offenses during the crack-cocaine epidemic, and whose cases are drawing new attention....

Because of her role as a middle woman between a cocaine buyer and supplier, Jones was accused of being part of a “drug conspiracy” and should have known that the powder would be converted to crack — triggering a greater penalty.

Her sentence was then made even more severe with a punishment tool introduced at the height of the drug war that allowed judges in certain cases to “enhance” sentences — or make them longer.  Jones was hit with a barrage of “enhancements.”

Her license for a concealed weapon amounted to carrying a gun “in furtherance of a drug conspiracy.”  Enhancement.

When she was convicted on one count of seven, prosecutors said her testimony in her defense had been false and therefore an “obstruction of justice.”  Enhancement.

Although she was neither the supplier nor the buyer, prosecutors described her as a leader in a drug ring.  Enhancement.

By the end, Jones’s sentencing had so many that the federal judge had only one punishment option.  With no possibility of parole in the federal system, she was, in effect, sentenced to die in prison.

Jones almost certainly would not receive such a sentence today.  Federal sentencing guidelines in similar drug cases have changed, in particular to end disparities in how the courts treat crack cocaine vs. powder cocaine.  And, following a 2005 Supreme Court decision, judges have much greater discretion when they mete out punishment.  In the past decade, they gave lower sentences by an average of one-third the guideline range, according to the U.S. Sentencing Commission.

But a lingering legacy of the crack epidemic are inmates such as Jones.  About 100,000 federal inmates — or nearly half — are serving time for drug offenses, among them thousands of nonviolent offenders sentenced to life without the possibility of parole, according to the American Civil Liberties Union.  Most are poor, and four in five are African American or Hispanic.

In the spring of 2014, then-Attorney General Eric H. Holder Jr. — who had called mandatory minimum sentences “draconian” — started an initiative to grant clemency to certain nonviolent drug offenders in federal prison.  They had to have served at least 10 years of their sentence, have no significant criminal history, and no connection to gangs, cartels or organized crime.  They must have demonstrated good conduct in prison.  And they also must be inmates who probably would have received a “substantially lower sentence” if convicted of the same offense today.

Jones applied. It has been a halting process, however.  Only 89 prisoners of the more than 35,000 who have filed applications have been freed.  They include 46 inmates who were granted clemency on Monday by Obama.  Jones wasn’t among them....

On Aug. 26, 1999 — after days of testimony about drug deals by people nicknamed “Weasel,” “Spider,” “Baby Jack” and “Kilo,” and a dramatic moment when Jones’s quadriplegic mother was wheeled into the courtroom — the jury acquitted Jones of all six charges of possession with intent to distribute crack cocaine and aiding and abetting.  But they found her guilty of one count of conspiracy to distribute crack cocaine.

Although no drugs were ever found, U.S. District Judge Jorge Solis determined that Jones was responsible for the distribution of 30 kilograms of cocaine.  He arrived at that number based on the testimony of the co-conspirators — the couple who received sentences of seven and eight years, and the Houston dealer, who got 19.5 years.  All have since been released.

The judge determined that Jones knew or should have known that the powder was going to be “rocked up” — or converted to crack.  Using a government formula, the prosecutor said that the 30 kilograms of powder was equal to 13.39 kilograms of crack cocaine.  He then added 10.528 kilograms of crack cocaine that the prosecutors said had been distributed in Terrell and was linked to Jones’s brother.  (The U.S. Court of Appeals for the 5th Circuit affirmed the conviction, but said there was “barely” any evidence of Jones’s connection to the crack distributed in Terrell.)

The judge’s calculation made Jones accountable for 23.92 kilograms of crack.  That, added to the gun and obstruction enhancements, as well as Jones’s role as an “organizer,” sealed her sentence under federal rules that assign numbers to offenses and enhancements.  The final number — 46 — dictated the sentence, leaving the judge no discretion.

“Under the guidelines, that sets a life sentence, mandatory life sentence,” Solis said at a hearing in November 1999.  “So, Ms. Jones, it will be the judgment of the court that you be sentenced to the custody of the U.S. Bureau of Prisons for a term of life imprisonment.” Solis declined to be interviewed. Said McMurrey: “In light of the law and the guidelines and what the court heard during the trial, I know Judge Solis followed the law. He’s a very fair man.”

The sentencing scheme that sent Jones to prison has been widely denounced by lawmakers from both political parties.  And sentences have been greatly reduced for drug offenses. But the differing approaches over time have led to striking disparities.

One illustration: The Justice Department announced last month that one of Colombia’s most notorious drug traffickers and a senior paramilitary leader will serve about 15 years in prison for leading an international drug trafficking conspiracy that imported more than 100,000 kilograms of cocaine into the United States.

The jurors who found Jones guilty were never told about the life sentence, which came months after the trial.  Several of them, when contacted by The Washington Post, were dismayed. “Life in prison? My God, that is too harsh,” said James J. Siwinski, a retired worker for a glass company.  “That is too severe.  There’s people killing people and getting less time than that.  She wasn’t an angel.  But enough is enough already.”

July 16, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment | Permalink | Comments (0)

New talk of abolishing the death penalty in Ohio spurred by pro-life conservative

As reported in this local piece, headlined "Renewed Effort Underway To Abolish Ohio's Death Penalty," talk of death penalty abolition is afoot again in the Buckeye State. Here are the details:

One state lawmaker is finding new allies in her fight to get rid of the death penalty. State Rep. Nickie Antonio has been down this road before. The Democratic lawmaker from Lakewood has tried several times to pass a bill that would eliminate the death penalty. “The state of Ohio needs to take the compassionate pragmatic and economically prudent step to abolish capital punishment,” Antonio said.

But while Antonio’s bill has stalled every session, this time she has picked up some support  — from freshman legislator Niraj Antani, a Republican from Miamisburg.  He says capital punishment is too expensive and represents the epitome of big government.  “To me there can be no bigger government with no bigger power than the right to execute its own citizens,” said Antani.

Antani is alarmed that about a dozen people on death row in Ohio have had their sentences commuted or exonerated. He calls on his fellow pro-life conservatives to side with him in getting rid of the death penalty. “I believe that — just the chance that an innocent individual could be put to death is reason enough to repeal it,” Antani added.

But other Republicans disagree. State Rep. John Becker who represents a portion of Clermont County says there are criminals such as mass murderers and serial killers who deserve execution. “So part of it is the inability to rehabilitate and part of it is simply punishment and it would be reserved for the most heinous of crimes,” said Becker.

There’s another issue at play when it comes to capital punishment in Ohio. The state has delayed executions until next year due to questions over the drugs used for lethal injections. Last year, death row inmate Dennis McGuire took an unusually long time to die during his execution and was reportedly seen struggling for air.

The U.S. Supreme Court has ruled that it’s okay for states to use certain combinations of drugs, but Ohio must still find suppliers and manufacturers. And Ohio Department of Rehabilitation and Corrections Director Gary Mohr has said the state is having problems getting those drugs because international companies don’t want to sell them for lethal injections and pharmacists don’t want to create them for executions.

Antonio and Antani use this as a reason to steer clear of executions but State Rep. John Becker makes a different argument and says it doesn’t have to be death by injection. “Frankly I like the idea of giving people choices they can have death by firing squad—death by hanging—death by guillotine," Becker said. "I’m not really sure I care how they die and they can choose their own method for all I care.”

Becker and other death penalty supporters have used another argument is support of capital punishment. They say prosecutors can use the threat of execution as a bargaining chip for plea deals.

July 16, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

July 15, 2015

Fascinating new drug guideline resentencing opinion from Judge Jack Weinstein

Judge Jack Weinstein is a justifiably legendary federal judge (whom, I must note, will be turning 94 in a few weeks).  Among the reasons Judge Weinstein is justifiably legendary is his ability to author remarkable (and remarkable long) opinions on an array of federal legal subjects.  Today I learned of his latest such opinion in in US v. Alli-Balogun, 92–CR–1108 (E.D.N.Y July 15, 2015) (available for download below).  Here is how the opinion starts:

The case is a remarkable one.  Though the drug case was nasty, the long-term imprisonment, by today’s standards, was excessive.  Defendant has served 273 months in prison while his wife and children established high status employment in banking and medicine.  See Hr’g Tr., July 15, 2015. Throughout his incarceration, he has maintained close contact with his family. Id. This resentence provides an opportunity to rectify, in modest degree, an unnecessarily harsh sentence imposed in crueler times.

Download Weinstein § 3582(c)(2) OPINION on RESENTENCING

The next 70+ pages goes on to discuss (and break a little new ground) the defendant's motion for a reduction of sentence under 18 U.S.C. § 3582(c)(2) and his challenge to his his conviction under 28 U.S.C. § 2255. (For the record, the defendant bats .500 in his efforts.)

July 15, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Politico article suggests real federal sentencing reform poised to become a reality

Almost exactly two years ago, in this July 2013 post reflecting frustration hearing lots of federal sentencing reform talk and relatively little major sentencing reform action, I speculated that the GOP gaining control of the US Senate along with the House might actually make the enactment of some significant federal sentencing reform more likely before the end of the Obama era.  Thus today, thanks to this Politico article reporting on where developments in the GOP-controlled Congress stand, has me feeling a bit clairvoyant:

As President Barack Obama on Tuesday evening called on Congress to take up criminal justice reform, a bipartisan group on Capitol Hill was putting the final touches on a sentencing overhaul deal to be announced as soon as next week. Their message to the president: You’re preaching to the choir. Story Continued Below

“We’ve actually been working on it for quite a while,” said Senate Majority Whip John Cornyn (R-Texas), one of the key negotiators of a package being hashed by members of the Senate Judiciary Committee. “You may see some legislation here in the next week or so. This is active. … [W]e’re close.”...

Right now, the prospects for such legislation seem good, given that lawmakers from both parties have been wrangling with a reform bill for months. Tuesday, for example, the House Oversight Committee became at least the third congressional panel to highlight problems in the justice system, inviting two governors, a handful of senators, House members and experts to discuss a path forward for reducing the number of inmates in federal prisons.

Hours later, the House officially formed the Congressional Criminal Justice and Public Safety Caucus, which will include justice reform supporters. And across the Capitol, Cornyn joined Sens. Mike Lee (R-Utah), Cory Booker (D-N.J.) and Sheldon Whitehouse (D-R.I) for a public dialogue that emphasized the importance of reform.

The biggest announcement is just around the corner: Senate Judiciary Chairman Chuck Grassley (R-Iowa) told POLITICO on Tuesday that his panel is close to announcing a deal on the bipartisan package his panel has been working on for months. Only about four outstanding issues remain, he said, predicting the package will be unveiled before August recess.

July 15, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

GOP House members request AG Lynch to provide accounting of Prez Obama's commutations

As reported via this official press release, it would appear that some GOP House members, seemingly concerned with how President Obama is now using his clemency powers, have decided to question Attorney General Loretta Lynch about what her boss is doing.  Here is what the press release explains (along with the full-text of letter, which is also available at this link): 

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and 18 Republican Members of the House Judiciary Committee today pressed for answers about the Obama Administration’s unprecedented clemency program for certain federal drug offenders in a letter to Attorney General Loretta Lynch.

Although the Justice Department’s own manual states that commutation of sentence is “an extraordinary remedy that is rarely granted,” the Obama Administration last year announced a clemency program for certain federal drug offenders and asked the defense bar to recruit candidates for executive clemency.  To date, 89 federal offenders have received sentence commutations, with the vast majority of those commutations going to federal drug offenders.

Here some key language from the letter, which I find curious and questionable in a variety of respects (especially the language I have emphasized below):

As Members of the Judiciary Committee, which oversees the Department of Justice, including the functions performed by the Office of the Pardon Attorney, we are deeply concerned that the President continues to use his pardon power to benefit specific classes of offenders, or for political purposes. No one disputes that the President possesses the constitutional authority to grant pardons and commutations. However, as the Department’s own U.S. Attorney’s Manual states, commutation of sentence is “an extraordinary remedy that is rarely granted.”

Additionally, the fact that the Department’s clemency initiative is focused solely on federal drug offenders continues this Administration’s plainly unconstitutional practice of picking and choosing which laws to enforce and which to change. This is not, as the Founders intended, an exercise of the power to provide for “exceptions in favour of unfortunate guilt,” but instead the use of the pardon power to benefit an entire class of offenders who were duly convicted in a court of law – not to mention a blatant usurpation of the lawmaking authority of the Legislative branch.

The parts of the letter I have stressed strike me as curious and suspect because they seem to have little legal or factual foundation (though they track quite closely to comments made a day earlier by Bill Otis at Crime & Consequences):

1.  Legally, there is no clear constitutional or other legal restriction on the President deciding, if he so chooses, to use his "pardon power to benefit specific classes of offenders, or for political purposes."  Indeed, the constitutional history of the pardon power, buttressed by comments in the Federalist Papers (see No. 74 and this Heritage memorandum), suggests that broad clemency power was preserved by the Framers in part to enable the Prez to be able to use this power to benefit specific classes of offenders, or for political purposes, when desired.  To this end, Pardon historian P.S. Ruckman rightly calls out this portion of the letter for "a very special kind of stupidity and ignorance."

2.  Factually, the current Obama clemency/commutation initiative, extending so far to just reduce the extreme prison sentence of 89 of roughly 100,000 current federal drug prisoners, in absolutely no way involves "picking and choosing which laws to enforce and which to change" nor does it somehow amount to a "blatant usurpation of the lawmaking authority of the Legislative branch."   Perhaps these assertion would make some sense if the President did in fact really grant full pardons to 100% (or even 75% or even 51%) of all federal drug prisoners/offenders and thereby wiped out entirely the convictions and sentences of truly an "entire class of offenders who were duly convicted in a court of law." But, so far, President Obama has merely shortened the extreme prison sentences of significantly less than .1% of current federal drug prisoners.

I could go on, but I will stop here by highlighting that this letter shows ways in which the current polarization of DC and the extreme disaffinity of the GOP for the current Prez necessarily impedes on the ability for folks inside the Beltway to move forward effectively with sound, sober and sensible sentence reforms.  Signing this suspect letter are a number of House GOP members who have recently spoken in favor of significant federal sentencing reform to reduce undue reliance on excessive terms of incarceration for federal drug offenders. But when Prez Obama actually does something in service to all the reform talk in Washington, his political opponents (perhaps spurred on by Bill Otis and others who oppose any and all criminal justice reforms) cannot resist the political instinct to complain.

July 15, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

"Fatal Re-Entry: Legal and Programmatic Opportunities to Curb Opioid Overdose Among Individuals Newly Released from Incarceration"

The title of this post is the title of this notable new article by multiple authored recently posted on SSRN.  Here is the abstract:

The United States is in the midst of a public health crisis: Every year, well over 24,000 Americans die from opioid overdose.  This staggering death toll is equivalent to a weekly jumbo jet crash. After a decade of rapid growth, overdose caused by prescription opioids and heroin now tops the accidental death rankings, beating out automobile accidents, AIDS, and other high-profile killers.  Overdose does not discriminate, cutting across all geographic, economic, and racial divides.  But some groups are especially vulnerable. This article is dedicated to one such group: individuals re-entering the community from correctional settings.  In the immediate two weeks after release, people in this group are almost 130 times more likely to die of an overdose than the general population.

It is easy to cast post-incarceration substance use — and consequent overdose — as the re-entering individual’s character weakness or a propensity towards reckless behavior. Nevertheless, modern addiction science reframes such relapse as a foreseeable consequence of the chronic nature of substance use disorders.  This scientific evidence also provides clear guidance on how most of the resulting fatalities can be prevented.  This article considers the creation of fatal overdose risk among formerly incarcerated individuals as an unacceptable collateral harm emanating from criminal justice involvement.

In order to address this largely overlooked public health problem, we explore a range of legal channels that can help persuade the state (broadly construed) to address a risk to which it substantially contributes.  We consider a number of doctrinal approaches, guided by the belief that spending time behind bars must not translate to a death sentence for so many Americans.  Whether as a part of possible legal actions or an action agenda on its own right, we present a number of programmatic interventions and policy reforms that may alleviate this crisis.  Our analysis also highlights the potential role of the Affordable Care Act (ACA) in facilitating overdose prevention before, during and post-incarceration. This agenda is especially timely given the current move by federal and state governments towards releasing large numbers of individuals incarcerated on drug-related charges to ease prison over-crowding or as a result of legal reforms, pardons, or exonerations.

In Section I, we provide an overview of the opioid overdose epidemic and the special vulnerability among criminal justice-involved individuals.  In Section II, we examine the scientific evidence on prevention measures that should be, but are currently rarely deployed to address this vulnerability.  In Section III, we explore various legal theories that could be invoked in efforts to motivate government actors to take a greater responsibility for preventing post-incarceration overdose deaths.  In Section IV, we cover additional mechanisms to motivate institutional change.  We conclude by outlining a policy and programmatic agenda for reducing the vulnerability of criminal justice-involved individuals to opioid overdose.

July 15, 2015 in Drug Offense Sentencing, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

Missouri completes first post-Glossip execution

As reported in this National Law Journal article, headlined "Supreme Court Rejects Plea to Strike Down Death Penalty," not a single US Supreme Court Justice seemed at all interested in re-considering the basic consitutionality of the death penalty as Missouri moved forward with the first US execution since the Supreme Court's Glossip ruling upheld the basic consitutionality of the death penalty.  Here are the details:

The U.S. Supreme Court on Tuesday night turned away a full-scale challenge to capital punishment in the case of a convicted murderer in Missouri set for execution at 6 p.m. Without comment or dissent, the court rejected multiple appeals from David Zink’s lawyers.  Missouri Gov. Jay Nixon also denied clemency for Zink, who was found guilty in the brutal 2001 murder of a 19-year-old woman.

Lawyers for Zink had earlier invoked U.S. Supreme Court Justice Stephen Breyer’s recent death penalty dissent in seeking a stay. Some commentators saw Zink's case as an opportunity for the full court to reexamine the constitutionality of the death penalty, as Breyer urged in the dissent.  But the court’s action late Tuesday dashed those hopes.

Zink’s execution by lethal injection was the first since the high court issued Glossip v. Gross on June 29.  In Glossip, a 5-4 majority upheld the use of a controversial drug in lethal injections.  Breyer, joined by Justice Ruth Bader Ginsburg, wrote a lengthy dissent questioning whether capital punishment, as it is now carried out, is constitutional....

Richard Sindel of Sindel, Sindel & Noble in Clayton, Missouri, another of Zink’s lawyers, said in an interview Tuesday that the legal team decided to cite Breyer’s dissent because it reflected his and Ginsburg’s long experience in dealing with the death penalty.  “They’ve been at it a long while,” Sindel said.  Unlike the late justices Thurgood Marshall and William Brennan Jr. who dissented from the death penalty “as a matter of course,” Sindel said Breyer’s dissent was “a different animal,” full of detailed analysis and detail on why capital punishment is not working.

Late Tuesday morning, Missouri Attorney General Chris Koster filed a brief with the Supreme Court urging it to reject Zink's appeal as "meritless" and procedurally flawed. Addressing the Glossip dissent, the brief stated, "A two-justice dissent does not establish a new rule of constitutional law made retroactive to cases on collateral review."...

On Monday, a federal judge considering Zink’s appeal also made short shrift of the Breyer dissent.  U.S. District Judge Beth Phillips in the Western District of Missouri wrote: “The court is not inclined to rely on the dissenting opinion in Glossip to declare the death penalty unconstitutional when the majority opinion clearly states that the death penalty is constitutional.”

July 15, 2015 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (2)

July 14, 2015

Live-blogging President Obama's big criminal justice reform speech to NAACP

After having waited a few hours for Prez Obama to finally make it to the podium at the NAACP's 106th National Convention, he is finally now, just short of 5pm ET, getting start with a widely-anticipated speech about the need for crimnal justice reform.  After sitting here waiting, I will do some live-blogging just to make the wait feel worthwhile:

Speech starts with praise for NAACP's work and then turns to problems and deficiencies facing minority youth, "our children, America's children."  But today, says Prez Obama, he wants to focus on our criminal justice system and the impact it has on minority populations and the "long history of inequity in the criminal justice system in America."

Notes that the "eyes of more Americans have been openned" to truths about America's criminal justice system.  Notes that "our incarceration rate is four times higher than China's" and that our prison poluation has quadrupled since 1980.  But "we need to be honest that ... there are some folks who need to be in jail .... murderers, predators, drug kingpins."  Not evidence that tougher sentences have contibuted to crime decline, but that it reaches a point of diminishing return.  Focus on distinguishing violent offenders from non-violent, drug offenders.

States "in far too many cases, the punishment does not fit the crime."  And we are spending $80 billion on incarceration --- an amount that would allow universal preschool or doubling the salary of all teachers.  "For what it costs in incarceration for one year, we could eliminate cost of tuition at all the public universities and colleges."  Praise for Rand Paul saying we spend too much on non-violent drug offenders with no public safety benefit.

There are cost that cannot be measured in dollars and cents, says Obama, as he turns to a discussion of racial disparities and the impact on communities of color.  This is not just anecdote, statistics bear out disparities at every stage of criminal justice processing.

"Mass incarceration makes our country worse off and we need to do something about it!"  The good news is that Republicans and Democrats agree on the need for reform, with "Van Jones and Newt Gingrich" and "NAACP and Koch Brothers" working on reforms.

Finishing speech by laying out basic principles in three areas: (1) in the community, (2) in the courtroom, and (3) in the cellblock.  

In the community: if we make investments early in our children, we save money in the future on criminal justice costs.  Investing in our community saves taxpayer money if we are consistent about it.  Stresses that we need to treat kids in community equally, remembering that "kids are different" so we do not "tag them as future criminals, but reach out to them as future citizens."

In the courtroom: we need to lower or eliminate entirely mandatory minimums for nonviolent drug offenses.  We need to invest in alternatives to prison, which can save taxpayers thousands each year.  Congress should pass a sentencing reform act this year.

In the cellblock: notes he will be first sitting Prez to visit a federal prison on Thursday, and I am going to shine a spotlight on this issue.  People in our prisons, though they have made mistakes, they are also Americans and we need to "increase the possibility they can turn their lives around."  If somebody in the midst of imprisonment recognizes the error of their ways, we have to make sure they are in a position to make the turn.  We should not be tolerating overcrowding, gang activity or rape in prison.  "These things are unacceptable!"  I have asked my attorney general to investigating to overuse of solitary confinement.  Prisons shoudl train people to find a job, not train them to be more hardened criminals.

UPDATE: The Marshall Project provides here a review of key passages from Prez Obama's NAACP speech on criminal justice reform. It sets up its review this way:

Whether or not you agree with President Obama about the need for criminal justice reform, it is undeniable that the speech he delivered in Philadelphia on Tuesday to the annual convention of the NAACP broke new ground.  Many presidents have spoken before, and some with great ardor, about law and order.  But no sitting president has ever publicly spoken at such length and in such detail as Obama now has about the persistent problems of crime and punishment in this country.

July 14, 2015 in Who Sentences? | Permalink | Comments (5)

NYU Law creates Clemency Resource Center, a "pop-up, pro-bono law office to submit petitions"

Download (1)I was very excited to learn via a press release that NYU School of Law has just "announced the launch of the Clemency Resource Center (CRC), a pop-up law office within the Center on the Administration of Criminal Law (CACL)."  Via the CACL's website, here is what this important new "pop-up law office" is all about and what it is planning to do:

The CRC will exist for one year, with the sole purpose of preparing and submitting federal clemency petitions at no cost to prisoners.  Beginning with a staff of seven attorneys, the CRC will work closely with Clemency Project 2014, an ongoing initiative designed to identify and find counsel for worthy clemency candidates, and will provide pro bono assistance to federal prisoners who likely would have received shorter sentences had they been sentenced today.

The CRC was co-founded by Rachel Barkow, Segal Family Professor of Regulatory Law and Policy at NYU Law, and Mark Osler, who holds the Robert and Marion Short Distinguished Chair in Law at the University of St. Thomas.  Erin Collins, a former public defender and acting assistant professor at NYU Law, serves as executive director.  Generously funded by Open Society Foundations, the CRC will begin work in August.

The CRC is unique in that it addresses an immediate short-term opportunity.  President Obama has clearly signaled his intent to use the constitutional tool of clemency to address over-incarceration.

Clemency Project 2014 aims to identify all federal inmates who seek help and meet criteria released by the US Department of Justice.  The project relies entirely on the help of pro bono attorneys to review and submit petitions.  “Too many non-violent prisoners are serving unduly harsh prison terms based on repudiated laws and policies.  That means we have quite a bit of work ahead,” said Cynthia Roseberry, project manager for Clemency Project 2014.  “This is an all-hands-on-deck situation and we welcome the support of the Clemency Resource Center.”

“The CRC isn’t a clinic, or a conventional legal aid organization, or an advocacy group. It is a factory of justice,” said Osler, a former federal prosecutor.

CACL has worked on clemency cases and reform of the pardon process since 2013 as part of the Mercy Project, an initiative that pursues commutations for federal prisoners who are serving very long sentences for typically non-violent drug crimes.

“The Clemency Resource Center is the latest step in our efforts to improve criminal justice in the United States and to help correct past miscarriages of justice,” said Barkow, faculty director for CACL.

During its year of operation, the CRC will utilize the talents of CACL student fellows as well as of CACL executive director Deborah Gramiccioni, a former federal prosecutor in New Jersey and at the US Department of Justice in Washington, DC.

I adore the notion of this new Clemency Resource Center as a "factory of justice," and I am pleased to learn that this factory is being backed by Open Society funding and will be focused on churning out (surely top-notch) federal clemency petitions for the next year. That said, I hope that everyone realizes that we desperately need many more factories of justice working on not just federal clemency petitions, but also state clemency petitions and also lots and lots of aggressive state and federal criminal justice reform litigation.

July 14, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

In praise of GOP Rep. Sensenbrenner making the moral case for sentencing reform

Download (5)Most long-time federal sentencing reform advocates likely have long shared my concern that Wisconsin GOP Representative James Sensenbrenner was a significant impediment to achieving significant federal sentencing reform.  Indeed, as noted in this prior post, as recently as two years ago, Rep. Sensenbrenner was defending federal mandatory minimum statutes on very dubious grounds.  

But now that Rep Sensenbrenner has been working for a couple years on bipartian federal criminal justice reform, he is a co-sponsor of the important SAFE Act  (details here) and today delivered this potent testimony to the GOP-controlled House to support his call for significant sentencing reform.  Here is an excerpt from the testimonty I found especially notable and important (with my emphasis added):  

Over the past three decades, America’s federal prison population has more than quadrupled — from 500,000 in 1980 to more than 2.3 million today.  Prison spending has increased by 595 percent, a staggering figure that is both irresponsible and unsustainable.

And yet, this increased spending has not yielded results.  More than 40 percent of released offenders return to prison within three years of release, and in some states, recidivism rates are closer to 60 percent. Several studies have found that, past a certain point, high incarceration rates are counterproductive and actually cause the crime rate to go up.

Especially among low risk offenders, long prison sentences increase the risk of recidivism because they sever the ties between the inmate and his family and community.  These are the ties we need to help reintegrate offenders as productive members of society.

These severed ties are also at the heart of the moral case for reform.  It’s not just the people in prison who are paying the punishment for their crimes.  Mass incarceration tears families apart and deprives children of their fathers and mothers.  It likely means a loss of job, possibly home, and any support he or she had within the community.

And that’s where we are with our sentencing policy — we’re spending more, getting less, and destroying communities in the process.  The system is broke, and it’s our job to fix it.

It is remarkable and a true sign of the modern sentencing times that this reform rhetoric, which sounds more like a passage from an opinion or article by Wisconsin District Judge Lynn Adelman, is coming from GOP Rep. Sensenbrenner. And the adjectives I have stressed in the quoted passage are, in my view, at the heart of the most compelling case for federal reforms and a broad response to modern mass incarceration: the current system is broken and counterproductive, irresponsible and unsustainable, but even beyond any data-driven, cost/benefit analysis, there is a powerful "moral case for reform" that resonates with the commitment to liberty, family, community and limited government that triggered the American Revolution.

Prior related post:

July 14, 2015 in Data on sentencing, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Highlighting why dozens of commutations barely move the mass incarceration needle

President Obama's action to commute the sentences of 46 drug offenders yesterday (basics here) merits the label historic.  But, as two recent commentaries highlight, the decision seems more compelling than it is truly consequential given the massive size of the federal criminal justice population.  Here are links to and snippets from the pieces that provide important (and somewhat depressing) context for what the Prez did yesterday:

From Margy Love at The Crime Report, "Clemency is Not the Answer":

[T]he problem of unjust sentences is simply too large to deal with through the clemency mechanism. When Lyndon Johnson commuted 200 drug sentences in the 1960s, almost everyone then in prison who deserved relief got it, thanks to the staffing efforts of the Bureau of Prisons. Today, given the massive number of people prosecuted for federal drug crimes in the past 25 years, and the fundamental rethinking of federal drug sentences now underway, potentially deserving prisoners are legion.

Between 1990 and 2007, nearly 10,000 people were sentenced to prison terms of 30 years or more for crimes involving drugs or firearms. Twice that number received sentences of at least 20 years. Trying to produce useful and reliable advice for the President about more than a token number of these individuals is too great a burden for the DOJ’s Justice Department’s tiny pardon staff. But the President cannot be expected to put his reputation on the line on the basis of anything less.

In addition to the practical problems raised by trying to force so many prisoner petitions through an administrative bottleneck onto a busy President's plate, there are institutional reasons why executive clemency is the wrong tool for dealing with systemic problems in the penal system.

From Steven Nelson at U.S. News & World Report, "Obama's 46 Commutations Barely Scratch the Surface: Thousands more may die in prison for nonviolent crimes":

Obama said 14 of the people he’s granting freedom would have otherwise died behind bars. Precise numbers are unclear, but in 2013 the American Civil Liberties Union reported at least 3,278 people were serving life without the possibility of parole for nonviolent crimes. More than 2,500 of those cases involved drug crimes.

"[T]here still remain thousands of Americans languishing in prisons serving sentences that have been repudiated by both Congress and the president," said Rep. Steve Cohen, D-Tenn., a leading supporter of drug law reform. "I hope the president continues this push for justice for all of them.”

Beth Curtis profiles 14 other people on her website LifeforPot.com who are serving life sentences for nonviolent marijuana convictions, none of whom received clemency Monday. She vetted each to ensure they had no previous convictions involving violence or other drugs. Other sources have higher estimates for marijuana-specific life sentences. The Clemency Report says there were 54 sentences of life without parole between 1996 and 2014.

“Frankly, my belief is that there is no place for life without parole for any nonviolent drug offender,” says Curtis, whose brother John Knock is serving life in prison for a marijuana dealing conviction. “It's not fiscally responsible and the sentence doesn't fit the crime.” Michael Collins, policy manager at the Drug Policy Alliance, echoed other reformers, saying he welcomes the new commutations, but “we need much more action."

Prior recent related posts:

July 14, 2015 in Clemency and Pardons, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Start of big two-day House hearings on criminal justice reform

Images (4)Though President Obama will capture most of the headlines with his emphasis on criminal justice reform in speeches and activities this week, Congress is where the reform action need to take place for there to be real, long-term hope and change.  Consequently, I will be keeping an eye on the the two days of hearings on criminal justice reform taking place before the House Committee on Oversight and Government Reform. This morning's Part I of the hearings can be followed via this webpage, and here is how the hearings are set up there:

HEARING PURPOSE:

  • To share lessons on criminal justice reform from states that have successfully implemented new policies. 
  • To hear from a diverse panel of experts regarding emerging areas of reform at both the state and federal levels, including existing and forthcoming bills before the House and Senate.
  • To broaden the conversation on criminal justice reform.

HEARING BACKGROUND:

  • Prison populations have grown precipitously over the past thirty years:
  • From 1940 to 1980: the population remained stable at about 24,000 federal prisoners.
  • 1980-1989: it more than doubled to about 58,000 prisoners.
  • 1990-1999: it more than doubled again to about 134,000 prisoners.
  • 2000-2010: it increased by another 45 percent to about 210,000 prisoners.
  • 2013: we now have more than 219,000 federal prisoners (nearly 40 percent above rated capacity).

 Spending on federal prisons has skyrocketed:

  • From 1998 to 2012, the Federal Bureau of Prisons (BOP) budget increased from $3.1 to $6.6 billion–from 15 to 24 percent of the Department of Justice (DOJ) budget. 
  • The 2013 budget request for the BOP totaled $6.9 billion, an increase of $278 million over the FY 2012 budget. 
  • The BOP is now consuming 25 percent of the DOJ budget. 

Criminal justice reform efforts typically fall into one of three categories, each of which will be discussed in the hearings:

  • “Front end” measures address how people end up in prison in the first place and the length of sentences they will receive.  Reform of mandatory minimums, for example, attempts to reduce prison populations and recidivism by allowing judges to impose shorter sentences on nonviolent offenders.
  • “Behind the wall” reforms attempt to change the operations of the prisons themselves.
  • “Back end” changes focus on the circumstances of release from prison, including serving portions of sentences in an alternative custody arrangement and rehabilitation programs.

July 14, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

July 13, 2015

"Some major U.S. religious groups differ from their members on the death penalty"

FT_15.07.13_deathPenaltyReligionsThe title of this post is the headline of this intriguing new piece via the Fact Tank blog from the Pew Research Center.  Here are excerpts:

When the Nebraska Legislature voted in May to ban the death penalty in the state – overriding the governor’s veto – supporters of the ban shared some of the credit with religious leaders who had spoken out on the issue, including several Catholic bishops. In fact, many large religious groups have taken positions in opposition to the death penalty even though that stance is sometimes at odds with the opinions of their adherents.

The Catechism of the Catholic Church says the death penalty is acceptable if it is “the only possible way of effectively defending human lives.” In recent years, however, both the U.S. Conference of Catholic Bishops and Pope Francis have spoken firmly against capital punishment.

They are not the only religious leaders to take this position; when it comes to the official teachings of large U.S. religious groups, opposition to the death penalty is more common than support for capital punishment. This is in contrast with public opinion: A majority of U.S. adults (56%) still favor the death penalty, although support has been dropping in recent years.

There also is a disparity between religious groups’ positions and the views of their adherents, particularly among mainline Protestants. Two-thirds of white mainline Protestants (66%) favor the death penalty, but several of the biggest mainline churches are against it. This includes the United Methodist Church, the Evangelical Lutheran Church in America, the American Baptist Churches USA, the Presbyterian Church (U.S.A.) and many others. Roughly half of U.S. Catholics (53%) – including a majority of white Catholics (63%) – also favor the death penalty, in contrast with church leaders’ stance.

Seven-in-ten white evangelical Protestants in the U.S. (71%) support the death penalty, a position held by many of their churches. Two of the largest U.S. evangelical denominations – the Southern Baptist Convention and the Lutheran Church-Missouri Synod – teach that the death penalty is acceptable. The Assemblies of God, a major Pentecostal denomination, does not have an official stance on the issue, although the church’s website cites a “common interpretation that the Old Testament sanctions capital punishment.”

The Church of Jesus Christ of Latter-day Saints (Mormon church) also does not take an official position on the death penalty. Neither does the National Baptist Convention, the largest historically black Protestant denomination, although most black Protestants (58%) oppose the death penalty (in contrast with the U.S. public overall)....

Among non-Christian faiths, teachings on the death penalty vary. The Reform and Conservative Jewish movements have advocated against the death penalty, while the Orthodox Union has called for a moratorium. Similarly, Buddhism is generally against capital punishment, although there is no official policy.

Hinduism also does not have a clear stance on the issue. In Islam, the death penalty is widely seen as acceptable (based on the Quran), and Islamic courts in countries such as Saudi Arabia and Iran routinely hand down death sentences. Some U.S. Muslim groups, however, have spoken out against the death penalty; for example, the Council on American-Islamic Relations has called for a moratorium.

Religiously unaffiliated Americans – atheists, agnostics and those who say their religion is “nothing in particular” – are split on the death penalty, with 48% in favor and 45% opposed.

July 13, 2015 in Death Penalty Reforms, Religion, Who Sentences? | Permalink | Comments (6)

Prez Obama commutes sentences for 46 federal drug prisoners (with a video message)

Neil Eggleston, Counsel to the President, has this new White House Blog posting titled "President Obama Announces 46 Commutations in Video Address: 'America Is a Nation of Second Chances'." Here is the text of the posting, with links worth following:

As a former Assistant U.S. Attorney and criminal defense attorney, I'm well acquainted with how federal sentencing practices can, in too many instances, lead nonviolent drug offenders to spend decades, if not life, in prison.  Now, don't get me wrong, many people are justly punished for causing harm and perpetuating violence in our communities.  But, in some cases, the punishment required by law far exceeded the offense.

These unduly harsh sentences are one of the reasons the President is committed to using all the tools at his disposal to remedy unfairness in our criminal justice system.  Today, he is continuing this effort by granting clemency to 46 men and women, nearly all of whom would have already served their time and returned to society if they were convicted of the exact same crime today.

In a video released today, the President underscored the responsibility and opportunity that comes with a commutation.

The President also shared his thoughts in a personal letter written to each of the 46 individuals receiving a commutation today.

In taking this step, the President has now issued nearly 90 commutations, the vast majority of them to non-violent offenders sentenced for drug crimes under outdated sentencing rules. 

While I expect the President will issue additional commutations and pardons before the end of his term, it is important to recognize that clemency alone will not fix decades of overly punitive sentencing policies.  Tune in tomorrow as the President shares additional thoughts on how, working together, we can bring greater fairness to our criminal justice system while keeping our communities safe in an address to the NAACP.

A list of the 46 lucky individuals receiving clemency today can be found here. A too quick review of the list suggests that the vast majority of those receiving clemency today were convicted of crack offenses, though I did notice a couple of marijuana offenders in the group. 

July 13, 2015 in Clemency and Pardons, Drug Offense Sentencing, New crack statute and the FSA's impact, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Prez Obama with big plans (finally!!) to prioritize criminal justice reform efforts

Images (11)Way back in 2007, then-Prez-candidate Barack Obama on the campaign trail made much of the need for nationwide (and especially federal drug sentencing) criminal justice reform in a speech to Howard Univesity (which I discussed in this 2010 law review article).  In that speech, candidate Obama promised that as President he would be "willing to brave the politics" to help engineer criminal justice reforms.  As long-time readers know from my commentary here and elsewhere, I have long been disappointed that Prez Obama has left us waiting a long time for the reality of his policy work to match the rhetoric of his first political campaign.  

But now, roughly eight years after making campaign proimises at Howard Univesity (and, tellingly, after the conclusion of every significant nation election in which Prez Obama is the most significant player), it appears that Prez Obama is finally poised to invest his political muscle and capital on crimnal justice reform.  This effective Bloomberg Politics article, headlined "Obama to Push U.S. Sentencing Change Backed by Koch Brothers," explains how and provides effective context:

The White House is preparing to seize advantage of bipartisan concern over the burgeoning U.S. prison population and push for legislation that would reduce federal sentences for nonviolent crimes.

President Barack Obama will champion sweeping reform of the criminal justice system during a speech to the NAACP annual convention on Tuesday in Philadelphia, press secretary Josh Earnest said Friday. Obama will present ideas to make the system “safer, fairer and more effective,” Earnest said.

Later in the week, Obama will become the first sitting U.S. president to visit a federal prison when he goes to a medium-security facility in El Reno, Oklahoma.  He’ll also sit for an interview with Vice News for an HBO documentary on the criminal justice system, Earnest said.

Obama came to office promising to reduce the number of Americans imprisoned for nonviolent drug offenses, and in 2010 he signed a law reducing disparities in sentences for possession of crack and powder cocaine. Some Republicans and police organizations criticized the moves as too lenient, but now a bipartisan coalition that includes Obama’s chief political antagonists, billionaires Charles and David Koch, have joined him to support relaxing federal sentencing guidelines.

Key lawmakers from both parties have been invited to the White House next week to discuss strategy. And Obama is expected to soon issue a spate of commutations for nonviolent drug offenders identified by a Justice Department program launched last year. Top officials from the department, including Deputy Attorney General Sally Yates, have recently met with members of Congress to express support for sentencing-reform legislation.

“Engagement with the president has been lacking for the past six years, but this is one topic where it has been refreshingly bipartisan,” Representative Jason Chaffetz, the Utah Republican who heads the House Oversight Committee, said in a telephone interview....

Chaffetz said he was optimistic that a package of bills would advance because of a diverse coalition of supporters lined up behind it. The president dubbed the legislation “a big sack of potatoes” in a meeting with lawmakers in February, Chaffetz said. The composition of the legislation isn’t final.

The Koch brothers, who are major Republican donors, support a bill introduced last month by Representatives Jim Sensenbrenner, a Wisconsin Republican, and Bobby Scott, a Virginia Democrat, that would encourage probation rather than imprisonment for relatively minor, nonviolent offenses and improve parole programs in order to reduce recidivism.

The Sensenbrenner-Scott bill is modeled on state efforts to reduce incarceration. While the federal prison population has grown 15 percent in the last decade, state prisons hold 4 percent fewer people, according to Sensenbrenner’s office. Thirty-two states have saved a cumulative $4.6 billion in the past five years from reduced crime and imprisonment, his office said in a report....

Representative Bob Goodlatte, the Republican chairman of the House Judiciary Committee, held a meeting in late June to listen to proposals from lawmakers in both parties. And Chaffetz, who described the Republican leadership in the House as “very optimistic and encouraging,” scheduled hearings on the issue by his committee for July 14 and 15. “I don’t normally do two days of hearings; we’re giving it that much attention,” Chaffetz said. “So it has more momentum than anybody realizes.”

There is a significant obstacle on the other side of the Capitol: Senator Chuck Grassley, the Iowa Republican who chairs his chamber’s Judiciary Committee.... But supporters of the House legislation have reason for optimism: Last month, Grassley announced he would work on a compromise in the Senate.

While Grassley has indicated a willingness to reduce penalties for some crimes, he wants to increase mandatory minimum sentences for other offenses, a Senate Republican aide said. The person requested anonymity to discuss internal deliberations. That could make sentencing changes an easier sell to tough-on-crime voters, but endanger the support of lawmakers who see mandatory minimums as bad policy. “There does appear hope for a bipartisan compromise,” Earnest said Monday. “We obviously welcome that opportunity.”

Senator Mike Lee, a Utah Republican who has long championed criminal justice reform, is leading negotiations with Grassley. He’s backed by Patrick Leahy of Vermont, the senior Democrat on Grassley’s committee, and Dick Durbin of Illinois, the second-ranking Democrat in the Senate.

The talks remain sensitive. During a Judiciary Committee hearing on Wednesday, Leahy -- admitting he already knew the answer -- asked Yates, who was testifying before the panel, to restate her support for sentencing reform. “I was born at night, but not last night,” Grassley interjected. “And I know that question was in reference to me, and I want everybody to know that we’re working hard on getting a sentencing-reform compromise that we can introduce. And if we don’t get one pretty soon, I’ll probably have my own ideas to put forward.”

July 13, 2015 in Clemency and Pardons, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

July 12, 2015

Seventh Circuit panel affirms as reasonable probation sentence for tax dodging Beanie Babies billionaire

Late Friday, a Seventh Circuit panel rejected the government's claim that a probation sentence given to a high-profile tax cheat was unreasonable.  The lengthy opinion in US v. Warner, No. 14 -1330 (7th Cir. July 10, 2015) (available here), gets started this way:

Defendant H. Ty Warner, the billionaire creator of Beanie Babies, evaded $5.6 million in U.S. taxes by hiding assets in a Swiss bank account.  He pled guilty to one count of tax evasion, made full restitution, and paid a $53.6 million civil penalty.  The Sentencing Guidelines provided a recommended 46- to 57-month term of imprisonment, but the district judge gave Warner a more lenient sentence: two years’ probation with community service, plus a $100,000 fine and costs.  The government claims his sentence is unreasonable because it does not include a term of incarceration.  

In a typical case, we might agree.  But this is not a typical case.  The district judge found Warner’s record of charity and benevolence “overwhelming.”  Indeed, the judge remarked that Warner’s conduct was unprecedented when viewed through the judge’s more-than-three decades on the bench.  In the district court’s opinion, this and other mitigating factors — including the uncharacteristic nature of Warner’s crime, his attempt to disclose his account, his payment of a penalty ten times the size of the tax loss, and the government’s own request for a sentence well below the guidelines range — justified leniency.  District courts enjoy broad discretion to fashion an appropriate, individualized sentence in light of the factors in 18 U.S.C. § 3553(a).  The court here did not abuse its discretion.  Rather, it fully explained and supported its decision and reached an outcome that is reasonable under the unique circumstances of this case.  We therefore affirm Warner’s sentence.

Though the panel stresses unique factors applying only in this case to support its reasonableness ruling, white-collar practitioners (especially those in the Seventh Circuit) will find a lot of broader interest and potential value in this opinion.

Prior related posts:

July 12, 2015 in Booker in the Circuits, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

The Marshall Project covers parole realities (and life without it)

The Marshall Project has a series of notable new piece about modern parole realities, and this lead one carries the headline "Life Without Parole: Inside the secretive world of parole boards, where your freedom may depend on politics and whim." Here is an excerpt:

America's prisons hold tens of thousands of people ... primarily confined not by the verdicts of a judge or a jury but by the inaction of a parole board. Michigan is one of 26 states where parole boards are vested with almost unlimited power to decide who gets out of prison when, and why.

With more than 1.5 million people behind bars, the United States has the highest incarceration rate in the world, and the financial costs are staggering. As politicians from both parties seek alternatives to mass imprisonment, the parole process has emerged as a major obstacle.

A months-long Marshall Project investigation reveals that, in many states, parole boards are so deeply cautious about releasing prisoners who could come back to haunt them that they release only a small fraction of those eligible — and almost none who have committed violent offenses, even those who pose little danger and whom a judge clearly intended to go free.

A recent revision of the Model Penal Code, an influential document written by legal scholars, declared parole boards "failed institutions."

"No one has documented an example in contemporary practice, or from any historical era, of a parole-release system that has performed reasonably well in discharging its goals," a draft of the document says....

Parole boards are vested with almost unlimited discretion to make decisions on almost any basis. Hearsay, rumor and instinct are all fair game.  In New Mexico, the law directs the board to take into account "the inmate's culture, language, values, mores, judgments, communicative ability and other unique qualities."

The boards' sensitivity to politics stems in part from the heavy presence of politicians in the ranks of board members.  At least 18 states have one or more former elected officials on the board.  In 44 states, the board is wholly appointed by the governor, and the well-paid positions can become gifts for former aides and political allies.

While some state laws require basic qualifications, these statutes are often vaguely worded, with language that is easily sidestepped. Many states have no minimum requirements at all. And unlike politicians, who are bound by open records and disclosure laws and are accountable to their constituents, parole boards often operate behind closed doors. Their decisions are largely unreviewable by courts — or anyone else.

"Not only are they closed, they're paranoid closed," said Janet Barton, the former operations manager of Missouri's parole board. "Closed to the extreme."  Few others in the criminal justice system wield so much power with so few professional requirements and so little accountability.

Here are the other pieces in the series so far:

July 12, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

What should be made of (and should we respond to) recent urban murder surge?

MurdersThe question in the title of this post is prompted by this lengthy USA Today article headlined "Several big U.S. cities see homicide rates surge." Here are excerpts:

After years of declining violent crime, several major American cities experienced a dramatic surge in homicides during the first half of this year.

Milwaukee, which last year had one of its lowest annual homicide totals in city history, recorded 84 murders so far this year, more than double the 41 it tallied at the same point last year.

Milwaukee Police Chief Edward Flynn said the mounting homicide toll in his city of 600,000 is driven by Wisconsin's "absurdly weak" gun laws – carrying a concealed weapon without a state-issued concealed carry is a misdemeanor in the Badger State — as well a subculture within the city that affirms the use of deadly violence to achieve status and growing distrust of police in some parts of the city.

Milwaukee is not alone.  The number of murders in 2015 jumped by 33% or more in Baltimore, New Orleans and St. Louis. Meanwhile, in Chicago, the nation's third-largest city, the homicide toll climbed 19% and the number of shooting incidents increased by 21% during the first half of the year.

In all the cities, the increased violence is disproportionately impacting poor and predominantly African-American and Latino neighborhoods. In parts of Milwaukee, the sound of gunfire is so commonplace that about 80% of gunshots detected by ShotSpotter sensors aren't even called into police by residents, Flynn said. "We've got folks out there living in neighborhoods, where . . . it's just part of the background noise," Flynn told USA TODAY.  "That's what we're up against."

Criminologists note that the surge in murders in many big American cities came after years of declines in violent crime in major metros throughout the United States.  Big cities saw homicides peak in the late 1980s and early 1990s as crack-cocaine wreaked havoc on many urban areas.

The homicide toll across the country — which reached a grim nadir in 1993 when more than 2,200 murders were counted in New York City — has declined in ebbs and flows for much of the last 20 years, noted Alfred Blumstein, a professor of urban systems and operations research at Carnegie Mellon University in Pittsburgh.  Several U.S. cities —  including Los Angeles, Phoenix, San Diego and Indianapolis — have experienced a decrease in the number of murders so far this year.

Blumstein said the current surge in murders in some big cities could amount to no more than a blip.  "It could be 2015 represents us hitting a plateau, and by the end of the year, nationally, we'll see that murder rates are flat or there is a slight bump up," Blumstein said.

But other experts say the surge in killings suggests that the United States may be nearing a floor in reducing its murder rate as the federal, state and local governments increasingly grapple with tighter budgets.  "Why is there a synchronicity among these cities?" said Peter Scharf, an assistant professor at the LSU School of Public Health whose research focuses on crime. "One reason may be President Obama is broke. Governors like Bobby Jindal are broke, and mayors like (New Orleans' Mitch) Landrieu are broke. You don't have the resources at any level of government to fund a proactive law enforcement."...

In New York City, there were 161 homicides in the city for the first half of 2015 vs. 145 during the first half of 2014.  Shootings in the city rose to 542, from 511 in the same period last year. New York recorded 328 homicides last year, the lowest annual murder toll for the city in more than 50 years. "It's so phenomenally low that it can hardly go in any direction but up," said Blumstein, the Carnegie Mellon analyst....

The homicide toll has risen several other major U.S. cities in the first half of the year, albeit at less dramatic pace. In Philadelphia, murders are up slightly, with the city recording 123 thus far this year compared with 117 at the same point last year. The murder rate, however, is far lower than it was in 2012, when the city had recorded a whopping 187 murders by July 7 of that year.

Dallas has tallied 68 murders so far this, up from 53 in 2014, according to police department statistics. San Antonio counted 53 homicides through June, compared with 43 last year. Minneapolis had 22 murders in the first half of 2015, compared with 15 during the same period last year.

It has often proven remarkably difficult to establish, either historically or in modern times, a strong and dependable causal connection between specific sentencing laws and practices and homicide rates. Consequently, I am not inclined to jump to any quick conclusions concerning what this murder surge might reflect or how policy makers ought to respond is sentencing term.  Indeed, for sentencing fans, the most notable part of this story may be that 2015 murders are down in the two most southern cities in California, the state that has had the most sentencing changes in recent years.

July 12, 2015 in National and State Crime Data, Offense Characteristics | Permalink | Comments (9)

DA planning to charge Boston Marathon bomber with murder under Massachusetts law

As reported in this new Reuters article, a "Massachusetts district attorney plans to bring state murder charges against Dzhokhar Tsarnaev, who has been sentenced to death in a federal trial for a deadly bomb attack on the 2013 Boston Marathon, her office said on Saturday." Here is why:

Middlesex District Attorney Marian Ryan said she would charge Tsarnaev with murdering MIT police officer Sean Collier and for other crimes in the aftermath of the marathon attacks. Ryan said a guilty verdict in Massachusetts could keep Tsarnaev in prison if he successfully appeals his federal convictions.

"When you come into Middlesex County and execute a police officer in the performance of his duties and assault other officers attempting to effect his capture, it is appropriate you should come back to Middlesex County to stand trial for that offense," Ryan said in a statement.

July 12, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

"The Economic Perspective on Sentencing"

The title of this post is the title of this article authored by Joshua Fischman recently posted on SSRN. Here is the abstact:

Although economists have been actively engaged in research on criminal sentencing, the synergies between the two fields are hardly obvious.  This Essay considers what economists have to contribute to the study of sentencing.  One common explanation — that economists’ use of rational choice modeling has applicability to the study of deterrence — does not adequately account for much of the sentencing research that economists are producing.

This Essay considers two alternative explanations.  First, empirical research in both fields is predominately observational.  Due to practical limits on controlled experimentation, economists have developed a variety of tools for making causal inferences from observational data, many of which have also proved useful in the study of criminal sentencing.  Second, both fields are policy-oriented social sciences.  Methods developed by economists for relating data to theoretical normative constructs, such as surplus and social welfare, have also proven useful in sentencing research, particularly in the study of inter judge disparity.

July 12, 2015 in Data on sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)