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January 17, 2015

"If crime is falling, why aren’t prisons shrinking?"

Cbpp_statesThe title of this post is the headline of this notable Boston Globe commentary. Here are some excerpts:

The prison population in Massachusetts has tripled in size since 1980. That’s faster than the state economy has grown and even faster than the rise in obesity. Massachusetts is hardly alone in this. Prison populations have mushroomed all across the United States, occasionally reaching rates far higher than anything seen here.  But while many states are now experimenting with approaches that ease criminal penalties, Massachusetts has taken few steps in this direction.
How many people are in prison? About 165 of every 100,000 people in Massachusetts are currently serving prison sentences of a year or longer. That number used to be a lot lower. In the late 1970s, just 50 of every 100,000 people were in state prisons.  You can find this same upward trend most everywhere in the United States; across the country, roughly 430 of every 100,000 people are in state prisons.
 Why has the prison population grown so rapidly? Initially, the growth in prison populations was a response to the surge in crime that shook American cities in the ’60s and ’70s. Faced with eruptions of violence, states everywhere began to put more people in prison and to increase the length of prison sentences.
Despite the fact that crime rates have declined dramatically since the early 1990s, those policing techniques and sentencing laws stayed in place. As a result, the prison population remains elevated....
Liberal and conservative states alike have begun to reassess the efficacy of their incarceration policies.  Partly, that’s about the strain on state budgets — building and maintaining prisons has proved extremely costly. But it’s also because of new research showing that it’s possible to loosen criminal penalties and reduce crime at the same time.
Over the last few years, the states that made the biggest reductions to their prison populations, including New Jersey and Connecticut, have also seen some of the biggest drops in crime.
Since 2008, 29 states have seen both lower crime rates and smaller prison populations. “Justice reinvestment” is the term being used to describe this effort, and what it involves is a careful cost-benefit analysis to see how states can simultaneously keep people out of prison, reduce crime, and save money. Among other things, states are experimenting with:
Looser drug laws. Over a dozen states, from California to Maine, have stopped sending people to prison for possessing small amounts of marijuana. And even with more serious drugs, it can be more effective — and cheaper — to help people get treatment. Texas has invested millions of dollars in treatment programs for drug offenders.
Electronic monitoring. Only recently has it become possible to effectively monitor people without putting them in prison. For those awaiting trial or struggling to keep up with the conditions of their parole, an ankle monitor can be a relatively inexpensive alternative to confinement. New Jersey is one of the states making use of this technology.
Therapy. Some forms of cognitive-behavioral therapy have been shown to keep one-time criminals from becoming two-time criminals, which is good for the public and good for state budgets. Dozens of different states have experimented with these therapies.
What reforms are being tried in Massachusetts? Given that the prison population in Massachusetts is far smaller than elsewhere in the United States, there’s less urgency around issues of reform.  Still, Massachusetts devotes about 3 percent of its budget — over $1 billion each year — to corrections. That’s twice what we spend on early education and roughly the same amount that we devote to higher education....
During his time in office, Governor Patrick had said he hoped this new information would revitalize the state’s sentencing commission, but it’s a big step from data-gathering to policy-making.  For now, other states seem to be taking the lead in the effort to find targeted reforms that can safely reverse the decades-long increase in prison populations.

January 17, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1) | TrackBack

SCOTUS takes up a few small criminal justice case along with big marriage questions

As highlighted by this Lyle Denniston post at SCOTUSblog, yesterday's big Supreme Court news was its decision to finally grant cert to consider the legal and constitutional status of same sex marriage.  But this same post also notes that SCOTUS also granted review on four other cases, three of which have criminal justice elements:

In addition to the same-sex marriage cases, the Court agreed on Friday to hear four other new cases, all of which are also expected to be argued in April.  Here, in summary, are the issues in those other cases:

In Mata v. Holder, the Court will be ruling on the authority of federal appeals courts to delay a deadline for a non-citizen to seek reopening of a deportation case with a claim that his lawyer was ineffective.

In Horne v. U.S. Department of Agriculture, the Court agreed to decide whether an unconstitutional seizure of part of a California raisin crop occurs when the federal government requires the private grower to take it off the market to help keep raisin prices up....

In McFadden v. United States, the issue is whether federal prosecutors must prove that an individual accused of distributing a substance actually knew that the material was a substitute for (an “analogue” of) an illegal narcotic drug.

In Kingsley v. Hendrickson, the Court will clarify when the police use of force against an individual who is being held awaiting a criminal trial is unconstitutionally excessive.

January 17, 2015 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (9) | TrackBack

January 16, 2015

AG Holder announces notable new limits on civil forfeitures to fund local police

As reported in this Washington Post article, headlined "Holder limits seized-asset sharing process that split billions with local, state police," the out-going Attorney General today announce a notable new policy that ought to take some of the economic incentives out of some drug war enforcement activities. Here are the basics:

Attorney General Eric H. Holder Jr. on Friday barred local and state police from using federal law to seize cash, cars and other property without proving that a crime occurred. Holder’s action represents the most sweeping check on police power to confiscate personal property since the seizures began three decades ago as part of the war on drugs.

Since 2008, thousands of local and state police agencies have made more than 55,000 seizures of cash and property worth $3 billion under a civil asset forfeiture program at the Justice Department called Equitable Sharing. The program has enabled local and state police to make seizures and then have them “adopted” by federal agencies, which share in the proceeds. The program allowed police departments and drug task forces to keep up to 80 percent of the proceeds of the adopted seizures, with the rest going to federal agencies.

“With this new policy, effective immediately, the Justice Department is taking an important step to prohibit federal agency adoptions of state and local seizures, except for public safety reasons,” Holder said in a statement. Holder’s decision allows some limited exceptions, including illegal firearms, ammunition, explosives and property associated with child pornography, a small fraction of the total. This would eliminate virtually all cash and vehicle seizures made by local and state police from the program.

While police can continue to make seizures under their own state laws, the federal program was easy to use and required most of the proceeds from the seizures to go to local and state police departments. Many states require seized proceeds to go into the general fund. A Justice official, who spoke on the condition of anonymity in order to discuss the attorney general’s motivation, said Holder “also believes that the new policy will eliminate any possibility that the adoption process might unintentionally incentivize unnecessary stops and seizures.”

Holder’s decision follows a Washington Post investigation published in September that found that police have made cash seizures worth almost $2.5 billion from motorists and others without search warrants or indictments since the terrorist attacks of Sept. 11, 2001.

January 16, 2015 in Criminal Sentences Alternatives, Drug Offense Sentencing, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (23) | TrackBack

LawProf and federal judge propose special evidence rules for penalty phase of capital cases

This new article available via SSRN, titled "The Proposed Capital Penalty Phase Rules of Evidence," reflects a notable capital punishment reform proposal put together by Professor David McCord and District Judge Mark W. Bennett. Here is the abstract:

No person or organization has ever proposed model rules of evidence for the unique penalty phase of a death penalty trial.  Now a law professor skilled in the scholarship of both death penalty jurisprudence and evidence, and a federal judge with extensive federal death penalty experience, do just that.

This work transcends the hodge-podge of evidentiary approaches taken by the various state jurisdictions and federal law.  The result is the Proposed CAPITAL PENALTY PHASE RULES OF EVIDENCE — clear and uniform rules to govern the wide-ranging evidentiary issues that arise in the penalty phase of capital trials.  Death penalty trials, long criticized for the arbitrariness of their results, will greatly benefit from these Rules.

January 16, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (0) | TrackBack

January 15, 2015

Political scientist highlights how Ted Kennedy and Joe Biden helped produce modern mass incarcertation

Murakawa2014I first spotlighted in this prior post the fascinating new book by Princeton Professor Naomi Murakawa titled The First Civil Right: How Liberals Built Prison in America.  I now see that The Marshall Project has published this great piece by Dana Goldstein with a brief overview of the book and a potent Q&A with its author.  Here is how the piece starts and some of my favorite excerpts:

Are liberals as responsible for the prison boom as conservatives?

That’s the thesis of a new book, The First Civil Right: How Liberals Built Prison America.  It has begun to attract reviews and debate from across the political spectrum.  Princeton political scientist Naomi Murakawa seeks to upend assumptions about the politics of crime and punishment.  She argues that conservatives, playing the politics of racial animus, helped quadruple the incarceration rate, but they were not alone.  Rather, she points to “liberal law and order” ideas first expressed by Harry Truman, Lyndon B. Johnson, and even the NAACP.  These liberals believed that federalizing crime policy would “professionalize” the justice system and prevent racial bias.  But in fact, federal funding and federal oversight of courts, sentencing, and policing helped build what Murakawa calls a “carceral state” that disproportionately punishes people of color.

Murakawa and I talked about her book and its implications for criminal justice reform today, especially the #BlackLivesMatter movement and the Obama administration’s policing reforms....

Q: Your book aims to expose the liberal roots of the prison boom.  But Democrats did not create the Willie Horton ad.  It was Richard Nixon who expanded the drug war by claiming that drug use was “the common denominator” that explained lawlessness among hippies, inner-city blacks, and antiwar protestors.  Is it important to distinguish between the different motives of conservatives and liberals?

A: I think it’s important to stay focused on outcomes in terms of how they affect people’s day-to-day lives. I do discount stated intentions quite a lot.  I do this in part because I have a feeling that for those being sentenced under punitive sentencing guidelines it doesn’t make a difference to them that Sen. Ted Kennedy was liberal and overall had a good voting record.  It doesn’t make the brutality of living in a cage any less violent.

Kennedy promulgated this idea of sentencing guidelines.  It was his baby.  He ushered it through the Senate at first as guidelines that were rigid but would have been somewhat anti-carceral.  They became guidelines that were rigid and more carceral.  And Reagan signed this legislation, in 1984. Kennedy had the rest of his life to say, “The sentencing guidelines have had a terrible impact. This is not what I meant.”  Not once did he introduce legislation to reform the guidelines.  Not once did he apologize or try to change it.  When I look at that kind of history, that’s where I feel like it’s fair to hold liberals responsible.

Q: Joe Biden played an interesting role in what you call Democrats “upping the ante” to outbid conservatives on being tough on crime.  Can you talk about Biden’s history?

A:  He was really pivotal in leading the Senate in worsening all of the provisions of Clinton's 1994 Omnibus Crime Act, which expanded the death penalty and created new mandatory minimum sentences.  Biden was truly a leader and worked very closely and very happily with conservative senators just to bid up and up and up.  There’s a tendency now to talk about Joe Biden as the sort of affable if inappropriate uncle, as loudmouth and silly.  But he’s actually done really deeply disturbing, dangerous reforms that have made the criminal justice system more lethal and just bigger.

That 1994 act is overwhelmingly, incredibly punitive.  One of the ways Biden brokered it was by making it such a huge bill that it had something for everyone.  It provided political coverage for everyone who wanted to vote for it.  There were certain liberal members who might have been opposed to mandatory minimums, but they were also getting the Violence Against Women Act.  The Congressional Black Caucus opposed the death penalty expansions, but the bill also did include some modest money for rehabilitation programs. Everyone got goodies through the criminal justice system.

Prior related post:

January 15, 2015 in Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (10) | TrackBack

"Are Pardons Becoming More Politically Acceptable?"

The question in the title of this post is the headline of this new Governing article. The piece has the subheadline, "Gubernatorial pardons have been in decline since the 1980s, but that appears to be changing as views evolve on rehabilitation and drug offenses." And here are excerpts:

Last Friday, on his last full business day in office, Illinois Gov. Pat Quinn pardoned 232 ex-offenders. That same day, in neighboring Indiana, Gov. Mike Pence issued three pardons -- the first during his two years in office.

Which governor’s actions were standard? Until recently, it would have been easy to pick Pence. For decades now, governors have been sparing with pardons, not wanting to be perceived as lenient and worrying about the political risks that can come with pardoning people who go on to commit further crimes.

But gubernatorial pardons may be about ready to start making a comeback. As part of the broader rethinking of criminal justice strategies, in which concerns about rehabilitation, exonerations and expungement of records have become part of the mix, more governors seem willing to embrace their historic role of offering clemency to those who have earned it.

Quinn offered 43 additional offenders clemency during his last minutes in office on Monday, bringing his career total well above 1,000. Virginia Gov. Terry McAuliffe issued nearly 50 pardons during his first year in office, while California’s Jerry Brown gave out more than 100 on Christmas Eve.

Those sorts of numbers still stand out. The number of gubernatorial pardons has dropped dramatically in recent decades, according to legal experts. Plenty of governors these days only offer a few pardons a year, if that many. But governors offering a regular flow of pardons are no longer the outliers that they would have been just a few years ago. "I do have a sense that people like Quinn represent the future," said P.S. Ruckman Jr., a political scientist at Rock Valley College in Illinois and editor of the Power Pardon blog. "There is kind of a different mindset."

One telltale sign of that, Ruckman points out, is that some new governors, including Larry Hogan of Maryland and Bruce Rauner of Illinois, talked during the campaign last year about the importance of taking the pardon power seriously in office. "That wouldn’t have happened in the 1980s,” Ruckman said....

States that have either independent pardoning boards or entities whose recommendations are necessary for a governor to issue a pardon, such as Connecticut and Georgia, have been more active on the clemency front than governors acting alone. A number of those states routinely grant upwards of 200 pardons per year.

Still, governors from both parties, such as Democrat Andrew Cuomo of New York and Republican Scott Walker of Wisconsin have offered either few or no pardons. There’s still a “political fear quotient” involved in pardoning someone who might go on to commit a heinous crime, noted former Maryland Gov. Bob Ehrlich. "Unfortunately, we only talk about pardon policy when something goes wrong," said Mark Osler, a law professor at the University of St. Thomas in Minnesota.

That’s why governors need to be careful, Ehrlich said, putting regular review processes in place and not bunching up all their decisions at holidays or as they leave office. That's the approach outgoing Arkansas Gov. Mike Beebe has taken, reviewing applications on a monthly basis throughout his tenure. Ehrlich has made pardons something of a personal cause, speaking frequently about the responsibility governors have regarding clemency. He runs a program to delineate best practices at Catholic University and offers advice to incoming governors....

“One thing that will be interesting to watch is that President Obama” -- who has issued the fewest pardons of any president since Dwight Eisenhower -- “has a clemency project that may or may not result in hundreds of sentences being commuted,” said Osler. “Maybe that will embolden some of these more liberal governors as well.”

January 15, 2015 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Over dissent of four Justices, SCOTUS lets Oklahoma execution go forward (... and Florida executes around the same time)

As reported in this USA Today article, a "sharply divided Supreme Court refused Thursday to block the execution of an Oklahoma inmate over concerns about a drug protocol that has caused problems in the past."  Here is more:

The court's five conservative justices denied the request for a stay of execution without comment.  But the four liberal justices issued an eight-page dissent in which they questioned whether the drug protocol.

"The questions before us are especially important now, given states' increasing reliance on new and scientifically untested methods of execution," Justice Sonia Sotomayor wrote. "Petitioners have committed horrific crimes and should be punished.  But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death.  I hope that our failure to act today does not portend our unwillingness to consider these questions."

Warner's execution was to come within hours of another in Florida, where Johnny Shane Kormondy, 42, was awaiting death for killing a man during a 1993 home invasion. Both executions were to use the same combination of three drugs.

Lawyers for Warner and three other convicts set for execution in Oklahoma over the next seven weeks had sought the Supreme Court's intervention after two lower federal courts refused their pleas.

Justice Sotomayor's eight-page dissent, which was joined by Justices Ginsburg, Breyer and Kagan, is available at this link and it ends with these two paragraphs:

I am deeply troubled by this evidence suggesting that midazolam cannot constitutionally be used as the first drug in a three-drug lethal injection protocol.  It is true that we give deference to the district courts.  But at some point we must question their findings of fact, unless we are to abdicate our role of ensuring that no clear error has been committed.  We should review such findings with added care when what is at issue is the risk of the needless infliction of severe pain.  Here, given the evidence before the District Court, I struggle to see how its decision to credit the testimony of a single purported expert can be supported given the substantial body of conflicting empirical and anecdotal evidence.

I believe that we should have granted petitioners’ application for stay. The questions before us are especially important now, given States’ increasing reliance on new and scientifically untested methods of execution.  Petitioners have committed horrific crimes, and should be punished.  But the Eighth Amendment guarantees that no one should be subjected to an execution that causes searing, unnecessary pain before death.  I hope that our failure to act today does not portend our unwillingness to consider these questions.

Not long after this decision was handed down, Oklahoma finally was able to carry out the death sentence imposed on Charles Warner for him murder of his girlfriend's 11-month-old daughter way back in 1997.  This AP report suggests that this Oklahoma execution, as well as another one taking place at roughly the same time in Florida with the same combination of drugs, were completed "without incident."  Consequently, I hope Justice Sotomayor feels at least some relief that these two murderers, roughly two decades after they killed, apparently were seemingly not "subjected to an execution that causes searing, unnecessary pain before death."

UPDATE:  This CBS News story suggests that I may have been too quick to assume that the Oklahoma execution was without incident.  Here is what the CBS News story reports about what unfolding in Oklahoma:

The execution lasted 18 minutes.

"Before I give my final statement, I'll tell you they poked me five times. It hurt. It feels like acid," Warner said before the execution began. He added, "I'm not a monster. I didn't do everything they said I did."

After the first drug was administered, Warner said, "My body is on fire." But he showed no obvious signs of distress. Witnesses said they saw slight twitching in Warner's neck about three minutes after the lethal injection began. The twitching lasted about seven minutes until he stopped breathing.

January 15, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (5) | TrackBack

Notable new posts in the new year from the Collateral Consequences Resource Center

As regular readers know now, I am making a abit of noting here notable posts from the Collateral Consequences Resource Center because the topics covered there are so interesting and get so little attention in the mainstream media (or many other places in the blogoshere).  Here are a bunch of new posts from CCRC that caught my eye from the first few weeks of 2015:

January 15, 2015 in Collateral consequences | Permalink | Comments (0) | TrackBack

Fifth Circuit reverses computer filter lifetime supervised release condition for sex offender

A Fifth Circuit panel yesterday handed down an intriguing little ruling in US v. Fernandez, No. 14-30151 (5th Cir. Jan. 14, 2015) (available here), reversing a notable condition of supervised release. Here is how the ruling starts and ends:

In 2013, Fernando Fernandez was convicted, pursuant to his guilty plea, of failing to register as a sex offender, in violation of 18 U.S.C. § 2250(a). He challenges a life-term special condition of supervised release, requiring him to “install [computer] filtering software . . . block[ing]/monitor[ing] access to sexually oriented websites” for “any computer he possesses or uses”. At issue is whether the court abused its discretion by imposing the software-installation special condition in the light of, inter alia, Fernandez’ neither using a computer nor the Internet in committing either his current offense (failing to register as a sex offender) or his underlying sex offense (sexual assault of a child)....

In the light of the facts at hand, the district court abused its discretion in imposing the software-installation special condition provision at issue, when, inter alia, neither his failure-to-register offense nor his criminal history has any connection to computer use or the Internet. Similar to Tang, the special condition imposed in this instance is related neither to the nature and circumstances of Fernandez’ offense (failing to register as a sex offender) nor his criminal history and characteristics.

Along that line, the district court’s reason for justifying the special condition is not sufficiently tied to the facts. As noted, for justifying its imposition, the court stated: “‘Failure to register’ means he’s a sex offender in the past. Ease of access through the Internet”. In the absence of evidence to the contrary, the court’s general concerns about recidivism or that Fernandez would use a computer to perpetrate future sex-crimes are insufficient to justify the imposition of an otherwise unrelated software-installation special condition.

January 15, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (12) | TrackBack

"Should the Medium Affect the Message? Legal and Ethical Implications of Prosecutors Reading Inmate-Attorney Email"

The title of this post is the title of this timely student note by Brandon Parker Ruben now available via SSRN. Here is the abstract:

The attorney-client privilege protects confidential, legal communications between a party and her attorney from being used against her.  It is among American jurisprudence’s most sacrosanct evidentiary principles.  Unsurprisingly, federal prosecutors cannot eavesdrop on inmate-attorney visits or phone calls, or read inmate-attorney mail.  Courts are currently divided, however, on whether or not the government can be prevented from reading inmate-attorney emails.

This Note explores the incipient body of case law that addresses whether federal prosecutors can read inmates’ legal email.  As courts have unanimously held, the Bureau of Prison’s email monitoring policy destroys the emails’ privilege, thus allowing prosecutors to lawfully read them.  Accordingly, despite misgivings about the practice’s propriety, four courts have ruled that there is no legal basis to prevent it.  Two courts, however, pursuant to no clear authority, have prevented prosecutors from reading defendants’ legal email, even while acknowledging the practice’s legality.

This Note argues that prosecutors should be prevented from reading defendants’ legal email, because doing so unjustifiably degrades the adversary system, and that there are legal bases to so prevent them.  It asserts that BOP’s email monitoring policy unconstitutionally restricts inmates’ Sixth Amendment right of access to counsel, a challenge prisoners’ rights advocates have yet to bring.  In cases where BOP’s email monitoring policy is not at issue, or where a court seeks to avoid a constitutional decision, this Note concludes, federal courts should prevent prosecutors from reading inmates’ legal email by exercising their congressionally delegated authority under the McDade Amendment to enforce state ethics rules.  Specifically, courts should apply Rule of Professional Conduct 8.4(d), which prohibits attorneys from engaging in conduct prejudicial to the administration of justice. 

January 15, 2015 in Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (3) | TrackBack

Oklahoma geared up to restart its machinery of death nine months after ugly execution

As reported in this Politico article, headlined "Oklahoma prepares to use controversial execution drug," a notable state is about to get back into the execution business. Here is how the article starts:

The state of Oklahoma plans to perform its first execution this week since a botched procedure last April, using a variation of the same three-drug cocktail that left an inmate writhing in pain for nearly 30 minutes before he died.

Thursday’s scheduled execution of Charles Warner, who is on death row for the rape and murder of an 11-month-old, is the first of four that was stayed following last year’s incident but that are now set to take place over the next two months.

Lawyers for all four inmates filed a last-ditch appeal with the Supreme Court on Wednesday but, if it is denied, Warner and the three others will be given different quantities of the same three-drug regimen, including the sedative that failed to induce unconsciousness and contributed to the visible agony of the man executed last April, Clayton Lockett.

That sedative, midazolam, is at the center of the appeal effort, as attorneys for Warner and the other three inmates argue that the drug does not sufficiently knock out the person receiving it.

January 15, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1) | TrackBack

January 14, 2015

"In a Safer Age, U.S. Rethinks Its ‘Tough on Crime’ System"

The title of this post is the headline of this lengthy front-page New York Times article discussing modern criminal justice realities that should already be known by regular readers of this blog.  Here are a couple snippets from the effective piece:

Democrats and Republicans alike are rethinking the vast, costly infrastructure of crime control and incarceration that was born of the earlier crime wave. “The judicial system has been a critical element in keeping violent criminals off the street,” said Senator Richard J. Durbin, Democrat of Illinois, who is co­sponsor of a bill to reduce some federal drug sentences. “But now we’re stepping back, and I think it’s about time, to ask whether the dramatic increase in incarceration was warranted.”

Senator Charles E. Grassley, Republican of Iowa and the new chairman of the Senate Judiciary Committee, has opposed broad reductions in sentences. But he still agreed, in an interview, that “there are a lot of ideas — prison reform, policing, sentencing — being discussed now that wouldn’t be if we hadn’t had this drop in the crime statistics.”...

Along with uncertainty about the sources of lower crime are contentious debates about what should come next.  How far can incarceration be reduced without endangering safety? Where is the proper line between aggressive, preventive policing and intrusive measures that alienate the law­abiding?

The rise in incarceration has been even more striking than the decline in crime, leading to growing agreement on both the right and the left that it has gone too far.  From the early 1970s to 2009, mainly because of changes in sentencing, the share of American residents in state or federal prison multiplied fourfold, reaching 1.5 million on any given day, with hundreds of thousands more held in local jails, although the rate has tapered off somewhat since 2009.

The social and economic costs are now the subject of intense study.  Some conservatives such as William G. Otis, a former federal prosecutor and adjunct professor of law at Georgetown University, argue that while many factors account for falling crime, harsher justice surely played a significant role. “When people are incarcerated they are not out on the street to ransack your home or sell drugs to your high school kid,” he said.

But many criminologists say the impact has been limited.  “The policy decisions to make long sentences longer and to impose mandatory minimums have had minimal effect on crime,” said Mr. Travis, of John Jay College. “The research on this is quite clear.”

Higher imprisonment might explain from 10 percent to, at most, 25 percent of the crime drop since the early 1990s, said Richard Rosenfeld, a criminologist at the University of Missouri ­St. Louis.  But it brought diminishing returns, he said, as those committing less severe crimes also received lengthy sentences.  

Many states, led by Republicans as well as by Democrats, have acted to reduce sentences for low­level and nonviolent crimes and to improve drug and other treatment services, while still bringing down crime rates.

January 14, 2015 in National and State Crime Data, Scope of Imprisonment | Permalink | Comments (1) | TrackBack

With interesting 6-3 split, SCOTUS gives habeas petitioner a little win on appeal

The Supreme Court this morning handed down a notable habeas procedure opinion today in Jennings v. Stevens, No. 13-7211 (S. Ct. Jan. 14, 2015) (available here). Here is the start and conclusion of the majority opinion by Justice Scalia:

Petitioner Robert Mitchell Jennings was sentenced to death for capital murder. He applied for federal habeas corpus relief on three theories of ineffective assistance of counsel, prevailing on two. The State appealed, and Jennings defended his writ on all three theories. We consider whether Jennings was permitted to pursue the theory that the District Court had rejected without taking a crossappeal or obtaining a certificate of appealability....

Because Jennings’ Spisak theory would neither have enlarged his rights nor diminished the State’s rights under the District Court’s judgment, he was required neither to take a cross-appeal nor to obtain a certificate of appealability. We reverse the judgment of the Fifth Circuit and remand the case for consideration of Jennings’ Spisak claim.

Justice Thomas, joined by Justices Kennedy and Alito, authored a dissenting opinion that starts this way:

The Court holds today that a prisoner who obtains an order for his release unless the State grants him a new sentencing proceeding may, as an appellee, raise any alternative argument rejected below that could have resulted in a similar order. In doing so, the majority mistakenly equates a judgment granting a conditional-release order with an ordinary civil judgment. I respectfully dissent.

Off the top of my head, I cannot think of another recent criminal case with this particular combination of Justices in the majority and in the dissent. Except for those involved in complicated habeas proceedings, the line up of the Justices is arguably the most notable aspect of this ruling.

January 14, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5) | TrackBack

January 13, 2015

"Georgia executes Vietnam veteran who killed a sheriff's deputy"

The title of this post is the headline of this extended CNN report on the first execution in the United States in 2015.  Here are the details:

Andrew Brannan, a decorated Vietnam War veteran convicted of murdering a 22-year-old sheriff's deputy in 1998, was executed Tuesday, said Gwendolyn Hogan, spokeswoman for the Georgia Department of Corrections.  Earlier in the day, the Georgia Supreme Court joined the state's parole board in declining to stop the execution....

Hogan said the court ordered execution was carried out at 8:33 pm ET.  She said a final statement was given, expressing remorse to the family of the slain deputy.

The state's high court had also denied Brannan's request for an appeal on the basis that it is unconstitutional to execute a person with his medical conditions and combat history.... Attorneys for the 66-year-old Brannan had hoped his sentence would be found unconstitutional.

His defense attorneys claim Brannan, who served in Vietnam in the early 1970s, was suffering from post-traumatic stress and bipolar disorder at the time of the shooting and was off his medication. In a petition filed Monday with Butts County Superior Court, Brannan's attorneys requested his life be spared because "executing American combat veterans whose service-related mental impairments played a role in subsequent violent conduct violates the Eighth and Fourteenth Amendments to the United States Constitution and analogous provisions of the Georgia Constitution."...

The killing of Laurens County Deputy Kyle Dinkheller was captured on the deputy's dash camera just outside Dublin, Georgia.... Brannan is seen in the video confronting Dinkheller after being pulled over for driving almost 100 mph in his pickup.

Brannan appears to be confrontational from the start, acting irrational as the deputy tells him to keep his hands out of his pocket.  He then mocks the deputy and at one point seems to dance around yelling, "Shoot me," at Dinkheller.  Brannan then yells that he is a Vietnam veteran.  He lunges at the deputy before he runs back to his truck, grabs a rifle and begins to shoot.

The video goes on to show a heated gunbattle as both men hide behind their vehicles for cover.  Bullets appear to pierce the windshield of the deputy's car.  Brannan's car door window shatters above his head.  In the video, Dinkheller and Brannan are shot and wounded in the battle.  Brannan advances on the deputy, and off camera, you hear the deputy scream before Brannan repeatedly shoots him and then flees the scene.  Dinkheller died, leaving behind a wife and child....

During the trial, attorney Kammer says the defense presented evidence that Brannan suffered from PTSD but claims that crucial testimony from a Veterans Affairs doctor treating him was never heard. His sentence was appealed, and a judge ordered a new sentencing trial, but that was later overturned by the Georgia Supreme Court.

Dinkheller's father, Kirk Dinkheller, posted on his Facebook page this month that "January 12, 2015 it will be 17 years since my son Kyle was murdered in the line of duty and on January 13, 2015 his killer will finally be held accountable.  Nothing will ever bring my son back, but finally some justice for the one who took him from his children and his family."

Some related posts:

January 13, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (17) | TrackBack

Senator Grassley queries DOJ concerning its work with Clemency Project 2014

Josh Gerstein has this notable new piece up at Politico headlined "Grassley questions Obama commutation drive," about a notable new inquiry directed to Attorney General Holder concerning the Obama Administration's (quirky?) efforts to ramp up its clemency activities. Here are excerpts:

New Senate Judiciary Committee Chairman Sen. Chuck Grassley is questioning the arrangements surrounding President Barack Obama's drive to shorten the sentences of some drug convicts.

In a letter sent Tuesday to Attorney General Eric Holder, the Iowa Republican asks for information about the relationship between the Justice Department and "Clemency Project 2014" — a consortium of outside groups formed in response to calls from administration officials to help federal prisoners prepare applications for the clemency effort.

"I am unaware of any time in history in which the Department of Justice has delegated any of these core attributes of presidential power to private parties beholden to no one, and who have their own agendas that may not coincide with the President's," Grassley wrote in the letter (posted here). "When private parties are wrongly given the ability to exercise any role in that public trust, then both the fairness of the pardon process and the appearance of its fairness are jeopardized."

Grassley's letter draws in large part on a POLITICO story last week which said that the new effort is struggling with more than 25,000 requests from inmates and that lawyers involved in the project have suggested applicants which route their clemency petitions through the project will stand a better or faster chance of favorable action than those who submit applications independently. The project—run by the American Civil Liberties Union, the American Bar Association, Families Against Mandatory Minimums and the National Association of Criminal Defense Lawyers— is also screening applications and weeding out those it considers unmeritorious under criteria the Justice Department set forth last April.

"Please tell me what formal arrangements exist between the Department and the Clemency Project 2014 to coordinate the processing of pardon applications, including what direction Clemency Project lawyers are given, what actions they take for the Department, and, how, if at all, Department of Justice lawyers consider the work product provided by these organizations or follow their recommendations," Grassley wrote. The senator also asks if anyone in the Justice Department is aware of statements suggesting those who submit applications through the project will have "superior access to the Department's pardon process."...

Grassley's letter refers to "pardon applicants," but the petitions prisoners are submitting are actually requests for commutations — a form of executive clemency that serves to shorten a prisoner's sentence.

The president can grant a commutation to anyone for virtually any reason. However, such applications are traditionally routed through the Justice Department's Office of the Pardon Attorney, which prepares recommendations and sends them to the department's No. 2 official, who forwards them to the White House.

The new commutation drive the Justice Department announced last year is aimed largely at paring back the sentences of convicts sent to prison for long terms relating to trafficking in crack cocaine. Those prisoners tend to be disproportionately minority as compared to those convicted of handling powdered cocaine. A law Obama signed in 2010 reduced that disparity for defendants sentenced after that time, but it was not retroactive.

The full Grassley letter is quite interesting, and not just because it gives some grief to Obama Administration about how it appears to be approaching its latest clemency push.  The letter asked a host of hard questions about what exactly DOJ and Clemency Project 2014 are up to, while also asserting in a final paragraph that "[j]ustice in the award of presidential pardons requires a transparent, fair process." And, unsurprisingly, the letter does not mention the sad reality that presidential clemency actions of the last two presidents have involved nothing resembling a "transparent, fair process."    

Among other notable aspects of this letter, Senator Grassley's obvious interest in these matter suggests that clemency issues are likely to be raised in some way during the upcoming confirmation hearings for AG Holder's replacement.  

January 13, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1) | TrackBack

Brief account of what proposed fraud guideline changes might amount to

This new Reuters article, headlined "U.S. panel proposes changes to white-collar prison sentences," provides a reasonable summary of the likely import and impact of the guideline reform proposes announced by the US Sentencing Commission late last week (discussed here). Here are excerpts:

Some executives and others convicted of stock fraud could face shorter prison terms under a U.S. commission's proposal to change how white-collar criminals are sentenced. The U.S. Sentencing Commission on Friday released proposals to amend advisory federal guidelines that would shift the emphasis in calculating a sentence for frauds on the market to financial gains instead of investor losses.

The proposal follows years of criticism by defense lawyers and some judges who say that the guidelines focus too much on financial losses caused by fraud, leading in certain cases to sentences that are too harsh. Judges have discretion to impose any sentence, but are required to consider the guidelines.

In stock fraud cases, losses can be in the hundreds of millions of dollars, contributing to an advisory sentence of life in prison. Under the commission's proposal, judges in these cases would consider the gains from a fraud, a number defense lawyers say would often be considerably smaller.

The Sentencing Commission has scheduled a March 12 hearing on the proposals. The panel has until May 1 to submit any amendments to Congress. If Congress does not act by Nov. 1, the changes become law....

The commission has proposed setting a threshold sentencing level for gains, ensuring punishment in cases where profits are minimal. Depending on what floor is set, there is a "very good chance a number of cases would result in lower guideline sentencing ranges," said David Debold, a lawyer at Gibson, Dunn & Crutcher who heads up an advisory group to the commission.

Defense lawyers cautioned that the proposed changes would not always result in a lower sentencing range. Some frauds like penny stock manipulation, for example, could involve significant gains to defendants and might still lead to lengthy sentences. Other proposals would affect the weight given to factors such as the harm to victims and the sophistication of a fraud.

Some defense lawyers say the proposals overall do not sufficiently emphasize a defendant's culpability and leaves loss as a driving factor for the bulk of fraud cases involving identity theft, mortgage fraud and healthcare fraud. "These changes don't go nearly as far as we would have liked," James Felman, a Florida lawyer and member of an American Bar Association task force advocating changes to the guidelines.

U.S. District Judge Patti Saris, the commission's chair, said in a statement that the panel did not consider "the guideline to be broken for most forms of fraud," but that its review had identified "some problem areas where changes may be necessary." 

Prior related post:

January 13, 2015 in Federal Sentencing Guidelines, Offense Characteristics, White-collar sentencing, Who Sentences? | Permalink | Comments (2) | TrackBack

SCOTUS unanimously rejects defense effort to limit reach of sentence enhancement in federal robbery statute

The US Supreme Court this morning handed down an impressively short unanimous opinion in Whitfield v. US, No. 13-9026 (S. Ct. Jan. 13, 2015) (available here), which swiftly rejects a bank robber's attempt to limit the reach of a provision of the statute with which he was convicted.  Here is the start of the opinion by Justice Scalia for the Court, as well as a few passages that my most interest sentencing fans:

Federal law establishes enhanced penalties for anyone who “forces any person to accompany him” in the course of committing or fleeing from a bank robbery. 18 U. S. C. §2113(e).  We consider whether this provision applies when a bank robber forces someone to move with him over a short distance....

In an attempt to support his position that “accompany” should be read to mean “accompany over a substantial distance,” Whitfield observes that a forced-accompaniment conviction carries severe penalties: a mandatory minimum sentence of 10 years, and a maximum sentence of life imprisonment.  In 1934, a forced-accompaniment conviction could even be punished with death.  Act of May 18, 1934, ch. 304, §3, 48 Stat. 783. The severity of these sentences, Whitfield says, militates against interpreting subsection (e) to capture forced accompaniment occurring over a small distance.

But it does not seem to us that the danger of a forced accompaniment varies with the distance traversed.  Consider, for example, a hostage-taker’s movement of one of his victims a short distance to a window, where she would be exposed to police fire; or his use of the victim as a human shield as he approaches the door.  And even if we thought otherwise, we would have no authority to add a limitation the statute plainly does not contain.  The Congress that wrote this provision may well have had most prominently in mind John Dillinger’s driving off with hostages, but it enacted a provision which goes well beyond that.  It is simply not in accord with English usage to give “accompany” a meaning that covers only large distances.

January 13, 2015 in Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3) | TrackBack

January 12, 2015

"Disgust, Dehumanization, and the Courts’ Response to Sex Offender Legislation"

A helpful reader alerted me to a notable article by Alexandra Stupple appearing in the Fall 2014 issue of National Lawyers Guild Review which has a title that also serves as the title of this post. The relative short article (which starts on page 8 of this pdf link) has the following introduction and conclusion:

Sex offenders have been subject to unprecedented restrictions and punishment.  The government’s treatment of sex offenders is a clear example of the dangers of laws derived from and upheld because of the emotion of disgust.  Disgust has led to a dehumanization of this category of people, which has led to a stripping of their constitutional rights.  The law’s treatment of sex offenders is a clear example of why the law should eschew employing the emotion of disgust during all proceedings.  In addition, the courts’, particularly the Supreme Court’s, treatment of the other branches’ actions regarding sex offenders is illustrative of why the law needs to insist upon empirical data in support of legislation and why the courts should not always defer to the other branches’ findings....

Today, all communities rightfully think of crimes such as child rape and molestation as the grave and heinous acts they are; however, a panic has ensued which has led to a squandering of public resources, the dehumanization of a swath of people, and the denigration of the Constitution.  For the protection of everyone’s constitutional rights, a conscious commitment by all lawmakers to use empirical data in their fact-finding and decision-making is required, even if done while feeling and expressing emotions like anger and contempt.  This may be the only way evidence-based practices and policies that actually protect the public from sexually violent persons will be born.

January 12, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (14) | TrackBack

United States v. Booker is exactly 10 years old today, and...

apparently I am the only one to highlight (or perhaps even realize) that today marks a huge milestone in the history of the federal sentencing system and provides a unique moment for extended reflection on what a decade of advisory guidelines has wrought.

Given that sentencing jurisprudence never gets much respect from the usual constitutional law gurus, I suppose I am not all that surprised that the folks at SCOTUSblog or The Volokh Conspiracy  are not running some kind of "Booker at 10" commentary symposium.  But I suppose I was secretly hoping that maybe the US Sentencing Commission or the federal public defenders or the US Department of Justice or some of the bigger federal sentencing reform advocacy groups would have something notable on their websites about this milestone.

In an effort to fill this notable void, in some coming posts I may try to do some armchair data analyses and comment broadly on what I think a decade of advisory guidelines has wrought.  But for now I just wanted to link here to the full 124-page Booker opinion, note that this Booker anniversary is dog that is not barking, and encourage reader commentary about what the lack of attention might mean.

UPDATE:  A helpful reader reminded me that I should here note and praise that the Hastings Law Journal, as detailed here, is hosting a terrific symposium next month titled "Federal Sentencing Reform, Ten Years After United States v. Booker." I feel bad I did not flag this before, as I am one of the scheduled speakers on the second of these four planned panels:

January 12, 2015 in Booker and Fanfan Commentary, Who Sentences? | Permalink | Comments (6) | TrackBack

County budget woes forces a official jail break in Ohio

Jail12-01A helpful reader altered me to this remarkable local story from Ohio, headlined "Summit County releases 72 inmates from jail," which highlights the extreme measures some officials feel they have to take when budget pressures and prisoner overcrowding reaches a breaking point.  Here are the details that explain this picture:

Summit County closed a wing of its jail Sunday for financial and safety reasons and began releasing inmates.  Seventy-two people — some with low-level felony charges and most nonviolent — filed out of the correctional facility shortly after noon.

They were greeted in the parking lot by family and social agencies, and then headed either to shelters, alternative sentencing programs or home.

“For the safety of everyone in this facility, not only the staff but the inmates as well, we’re doing what we have to do due to the financial situation of this county,” Sheriff Steve Barry said.  Barry, whose career began with the sheriff’s office in 1979, could not recall another time when the county released a large number of inmates for budgetary reasons.

The sheriff had announced the release plan last month, saying he doesn’t have enough deputies to safely oversee the jail.  The county already has cut recreation time and programming for inmates because of staffing.

In late 2013, a national jail expert recommended that the county hire at least 50 more workers or close a portion of the facility.  Then last fall, county voters rejected a sales tax increase that would have funneled most of the money to jail operations.  The facility, on East Crosier Street in Akron, can hold 671 inmates, but will be reduced to 522.  “I don’t want these people out,” Barry said. “I got no choice.”

Asked what the county would do in the future, the sheriff responded: “That’s a very good question” and acknowledged he doesn’t know what the solution is.  The release Sunday was complicated by the fact that the jail received about 50 new inmates over the last two days, Barry said.  That meant some people charged with assaults, domestic violence and other crimes not expected to be let go were set free.

No one charged with murder or rape was released, the sheriff said. It was unclear if any of the inmates were released early from a sentence or if they were all awaiting trial. Sheriff’s officials could not say Sunday.

Barry credited the jail staff for handling the background reviews of all inmates. “They have been working around the clock the last four to five days on who could go and who could not go,” Barry said. He added that authorities attempted to contact every victim of the inmates who were released.

Former inmate Antonio Spragling, 50, of Akron had been in the jail for 47 days. He was arrested last year on drug charges and violation of a protection order and is awaiting trial. “All I could do is thank God,” he said. “I’m spiritual. God is my savior. … Unfortunately I’ve been in situations like this before and there was talk of release and it never happened. I look at it as a second chance and I’m not going to let anyone down. No judge. The system. And more important, I’m not going to let myself down.”

David Kennedy of Barberton and Joseph Griffin Jr. of Akron came to the jail to pick up relatives. As they stood in the parking lot waiting, they said they wished there were more programs to help former inmates and more businesses willing to hire them. Without training and jobs, they’ll just end up back in jail, they said. “They’ve got some good people in there,” Kennedy said. “They just had a bad turn. Somebody didn’t help them out. Nobody gave them that momentum, encouraging them to do the right thing. Some of the people in there you can tell have a good heart.”

January 12, 2015 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0) | TrackBack

January 11, 2015

"An Analysis Of The Economic Costs Of Seeking The Death Penalty In Washington State"

The title of this post is the title of this lengthy new research study produced by a group of folks at Seattle University. Helpfully, this Seattle Times article, headlined "Seeking death penalty adds $1M to prosecution cost, study says," provides a summary of some of its findings:

Seattle University has released the results of a seven-month study into the costs of the death penalty in Washington state and has found a more than $1 million price break in cases where capital punishment is not sought....

Criminal-justice professor Peter Collins called the study one of the nation’s most “rigorous” examinations of the costs associated with the death penalty. Collins said he wasn’t surprised by the price difference. “I don’t know who coined this term, but this is social science supporting common sense,” he said on Tuesday. “I wasn’t surprised because there was so much anecdotal and other evidence that we’re spending money on these cases.”

In the study, Collins and three other professors reviewed 147 aggravated first-degree murder cases filed in Washington state since 1997, according to the study. They found the average cost of a death-penalty prosecution and conviction is just over $3 million. Not seeking a death-penalty prosecution and sending a person to prison for life costs the state roughly $2 million.

“What this provides is evidence of the costs of death-penalty cases, empirical evidence,” Collins said. “We went into it [the study] wanting to remain objective. This is purely about the economics; whether or not it’s worth the investment is up to the public, the voters of Washington and the people we elected.”

The study was funded by a grant from the American Civil Liberties Union of Washington Foundation. Seattle University School of Law professor Bob Boruchowitz, the former head of one of King County’s top public-defense agencies, said that “as far as I know this is the only study of its kind in the country that combines the perspective of social scientists with capital [death penalty] qualified lawyers.”...

The study’s authors point to a rise in costs in death-penalty cases. Starting this month, two of three defendants charged in King County with aggravated murder will have their death-penalty trials begin. The prosecution and defense costs in the three cases have cost King County more than $15 million, according to figures supplied by county officials....

The future of the death penalty in Washington remains unclear. Last February, Gov. Jay Inslee issued a moratorium on the death penalty while he is in office.

January 11, 2015 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (4) | TrackBack

Toledo Blade urges "No more prisons" for Ohio as it deals with overcrowding issues

This new editorial from The Toledo Blade makes the case for sentencing reform to deal with Ohio's prison overcrowding problems.  Here are excerpts:

Fueled largely by growing numbers of nonviolent, drug-addicted offenders from rural counties, Ohio’s crowded prison system is at a crossroads: The state must either increase capacity or take the far more sensible, humane, safe, and cost-effective route of finding community-based alternatives to incarceration.

Statistical profiles of the state’s incoming inmates underscore the need for change.  They show many low-level offenders with short sentences that community sanctions could handle more effectively, at a fraction of the $25,000 a year it costs to lock up each prisoner. Ohio’s prison system costs $1.5 billion a year.

Nearly 45 percent of inmates who go to prison each year in Ohio — almost 9,000 people — serve less than a year.  That’s not enough time for them to get involved in meaningful programs that would reduce their chances of returning to prison.  Expanding drug courts in Ohio would ensure that more offenders who struggle with addiction were sentenced to treatment instead of prison.

Gary Mohr, director of the Ohio Department of Rehabilitation and Correction, prudently and courageously rules out building more prisons, though he said crowding statewide could force Ohio to reopen a prison camp.... “As a state, we’re going to have to make some policy decisions,” Mr. Mohr told The Blade’s editorial page. “Are we going to invest in brick and mortar, spending $1 billion over the next 20 years to build and run another prison, or are we going to invest in people? ... I’m not going to build another prison, not with so many nonviolent people coming into the system.”

The rest of the state should listen to its prison chief. Mr. Mohr recently convened a working group of judges and state politicians to find ways to divert more low-level offenders from prison.  He said he would expand halfway houses and other community alternatives to incarceration, and support sentencing reforms that could emerge from the General Assembly this year.

Roughly 30 percent over capacity, Ohio’s prison system holds 50,382 inmates, including 4,049 women.  That’s up about 2 percent from August, 2012.  The prison population would be far higher if the recidivism rate in Ohio were not at a record low 27.1 percent, compared to nearly 50 percent nationwide.  The state could lower that rate even further by starting drug treatment, including medication-assisted treatment, before prisoners are released and continuing that treatment after they go home....

The number of offenders coming from Ohio’s six largest counties, including Lucas, is down, Mr. Mohr said. But a growing number of new prisoners from the rest of the state has more than offset decreases from major urban areas. Ohio’s goal should not be to manage its prison population. It should be to reduce that population significantly, by acting now to expand cost-effective alternatives to incarceration.

Some recent related posts:

January 11, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0) | TrackBack