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August 15, 2015

"The Circuit Split on Johnson Retroactivity"

The title of this post is the headline of this effective new Casetext analysis of the intricate lower-court legal story already emerging in the wake of the Supreme Court's big Johnson Armed Career Criminal Act ruling declaring the residual clause of ACCA void for vagueness.  Authored by Leah Litman, the full piece merits a full read, and here is how it gets started:

In Johnson v. United States, the Supreme Court held that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague.  Defendants therefore can no longer be sentenced under the residual clause to a 15-year mandatory minimum term of imprisonment.  But what about defendants who have already been sentenced under ACCA’s residual clause?  I predicted in April, before Johnson was decided, that determining who can be resentenced in light of Johnson would be fraught with difficulties.  The courts of appeals have begun to sort through this question, and I’ll highlight one such case in this post.

In In re Rivero, the Eleventh Circuit purported to decide an important question that affects who can be resentenced in light of Johnson — namely, whether the Supreme Court has made Johnson retroactive.  Generally, new rules of constitutional law do not apply to convictions that have become final.  But certain “retroactive” rules apply to convictions that have become final; prisoners can raise claims that are based on retroactive rules in post-conviction review — review that occurs after a defendant’s conviction has become final.  If a prisoner has already filed one petition for post-conviction review, he may file a second or successive petition for post-conviction review only if the Supreme Court has made a rule retroactive (as opposed to a court of appeals or district court doing so).

I said that the Eleventh Circuit “purported” to decide whether the Supreme Court has made Johnson retroactive because the Eleventh Circuit’s decision is a bit quirky.  Most importantly, the defendant wasn’t actually sentenced under ACCA — he was sentenced under an analogous provision of the Sentencing Guidelines (the “career-offender Guideline”).  But the Eleventh Circuit “assumed” that Johnson applied to the career-offender Guideline and that the career-offender Guideline was therefore unconstitutional. Working off that assumption, the Eleventh Circuit went out of its way to disagree with the Seventh Circuit on whether the Supreme Court has made Johnson retroactive.

Rivero has thus created a potentially unnecessary circuit split, as well as some uncertainty about who can be resentenced in light of Johnson.  I’ll offer some thoughts on how narrowly or broadly Rivero can be read. (Spoiler: I think it should be read pretty narrowly.)

Some prior related posts:

August 15, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (0)

August 14, 2015

In Ohio, "State prisons chief calls for softened hearts"

The quote in the title of this post is the headline of this local AP story about notable recent comments from the Director of Ohio's Department of Rehabilitation and Correction. Here are the details:

Ohio’s prisons chief is calling for more compassion toward wrongdoers as he continues a push to reduce the state’s inmate population.  Too often an “us vs. them” mentality gets in the way of instituting programs to prevent people from going to prison and to keep former inmates from returning, corrections director Gary Mohr told a legislative prison-inspection committee on Thursday in remarks that at times were closer to a sermon than a speech.

“Our hearts need to be softened to some degree,” said Mohr, director of the Department of Rehabilitation and Correction.  “We have to think about the sense of forgiveness.” When Mohr started his prisons career 41 years ago, Ohio had 8,300 inmates in seven prisons, including 291 female inmates.  The total now is holding steady at about 50,000 in 27 prisons, including 4,200 female prisoners.

The state’s incarceration rate was 5.3 per 100,000 citizens, compared with 68.1 today, said Mohr in a 40-minute speech to the bipartisan Correctional Institution Inspection Committee.  Mohr is also dissatisfied that 1 in 4 state employees now work in adult corrections.

Society’s tough-on-crime attitude doesn’t match statistics showing violent crime at historic lows, he added.  But Mohr also sees signs of optimism as commitments from the state’s biggest counties drop thanks to the growth of community alternatives in urban areas.  The next challenge is extending such programs to the 82 counties where commitments have increased.  The state is taking advantage of programs seeking to better integrate prisoners into society, as well, Mohr said. And the expansion of Medicaid will help inmates as they re-enter communities.

Among other issues Mohr said:

• 8,400 Ohio inmates spend less than a year in prison, a short period of time likely better served in communities in some form.

• 1 in 4 inmates is a probation violator, a trend that needs to be reversed by giving judges more discretion when ex-offenders make mistakes.

• The high population of some Ohio prisons raises security concerns.

Under Gov. John Kasich, the state has made efforts to slow the inmate population by easing penalties on first-time offenders, providing some early-release opportunities and boosting community-based options.  At the same time, the state’s painkiller- and heroin-addiction epidemic has led to a rash of thefts, burglaries and other crimes that have increased prosecutions.

August 14, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

August 13, 2015

Fourth Circuit reverses district court's conclusion that Eighth Amendment precluded mandatory LWOP for piracy

Thanks to a helpful reader, I saw that the Fourth Circuit today handed down a panel decision in US v. Said, No. 14-4420 (4th Cir. Aug. 13, 2015) (available here), which reverses a district court's prior ruling that the Eighth Amendment precluded the imposition of mandatory LWOP federal sentences on defendants convicted of piracy.  The main opinion in Said ends its Eighth Amendment analysis this way:

Victims of piracy are robbed of their vessels, kidnapped, held hostage, and even tortured and murdered, while pirates are often able to find safe refuge in the territorial waters off Somalia and collect multi-milliondollar ransom payments.  In these circumstances, we agree with the government “that Congress could with reason conclude [that piracy] calls for the strong medicine of a life sentence for those who are apprehended.” See Br. of Appellant 39.

We are satisfied that “the relationship between the gravity of [the defendants’] offenses and the severity of [their proposed] punishment fails to create the threshold inference of gross disproportionality that is required” to satisfy prong one of the Eighth Amendment analysis.  See Cobler, 748 F.3d at 580.  Thus, without moving to prong two, we rule that the district court erred in invalidating § 1651’s mandatory life sentence as to these defendants and is obliged to impose such sentences on remand.

Judge Davis wrote an intriguing little concurring opinion urging Congress to no longer mandate LWOP sentences in all piracy cases because "not all piracy offenses are equal in severity, in heinousness, and in the dire consequences visited on innocent seafarers."  In so doing, Judge Davis dropped this notable footnote:

Indeed, in this case, Mr. Ibrahim, who was “the group’s leader” and who “led the new mission,” ante at 7, would seem to have earned a life sentence.  But he avoided that fate through the magic of “substantial assistance” and the fiction of “acceptance of responsibility,” the coins of the federal prosecutorial realm.  The inference is unavoidable that it is not really those who participate in piracy who receive a life sentence upon conviction (as we imagine Congress might believe), but rather those who are convicted after electing to go to trial.

August 13, 2015 in Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (10)

Connecticut Supreme Court follows legislature's prospective DP repeal with retrospective state consitutional abolition

The Connecticut Supreme Court today finally resolved, via a split vote, what is to become of the other capital murderers on te state's death row in the aftermath of the legislative repeal of death penalty back in 2012. Here is the lengthy paragraph that starts the lengthy marjority opinion in Connecticut v. Santiago, No. SC 17413 (Conn. Aug 13, 2015) (available here):

Although the death penalty has been a fixture of Connecticut’s criminal law since early colonial times, public opinion concerning it has long been divided.  In 2009, growing opposition to capital punishment led the legislature to enact Public Acts 2009, No. 09-107 (P.A. 09-107), which would have repealed the death penalty for all crimes committed on or after the date of enactment but retained the death penalty for capital felonies committed prior to that date.  Then Governor M. Jodi Rell vetoed P.A. 09-107, however, and it did not become law.  Three years later, in 2012, the legislature passed a materially identical act that prospectively repealed the death penalty; see Public Acts 2012, No. 12-5 (P.A. 12-5); and, this time, Governor Dannel P. Malloy signed it into law.  During the public hearings on both P.A. 09-107 and P.A. 12-5, supporters argued that the proposed legislation represented a measured and lawful approach to the issue.  Others raised serious concerns, however, as to whether, following a prospective only repeal, the imposition of the death penalty would violate the state constitutional prohibition against cruel and unusual punishment.  Perhaps most notably, Chief State’s Attorney Kevin T. Kane, who serves as this state’s chief law enforcement officer and represents the state in the present case, testified before the legislature that such a statute could not pass constitutional muster.  Additionally, the Division of Criminal Justice submitted written testimony, in which it advised the legislature that a prospective only repeal would be a "fiction" and that, "[i]n reality, it would effectively abolish the death penalty for anyone who has not yet been executed because it would be untenable as a matter of constitutional law . . . . [A]ny death penalty that has been imposed and not carried out would effectively be nullified."  In the present appeal, the defendant, Eduardo Santiago, raises similar claims, contending that, following the decision by the elected branches to abolish capital punishment for all crimes committed on or after April 25, 2012, it would be unconstitutionally cruel and unusual to execute offenders who committed capital crimes before that date.  Upon careful consideration ofthe defendant’s claims in light ofthe governing constitutional principles and Connecticut’s unique historical and legal landscape, we are persuaded that, following its prospective abolition, this state’s death penalty no longer comports with contemporary standards of decency and no longer serves any legitimate penological purpose.  For these reasons, execution of those offenders who committed capital felonies prior to April 25, 2012, would violate the state constitutional prohibition against cruel and unusual punishment.

Over at Crime & Consequences, Kent has this post in reaction to the Santiago ruling titled "A Broken Promise In Connecticut."

August 13, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (23)

What can and should voters know about the criminal justice impact of marijuana prohibition as they consider repeal?

I will be off-line for most of the rest of the day in order to have a meeting with a retired Ohio judge (and perhaps some others) to discuss the question that is the title of this post.  The question has become especially salient for Ohio voters today: as detailed in this post at MLP&R, as of yesterday it became official that, in less than 90 days,  Ohio voters will be deciding whether to legalize marijuana in the Buckeye State for recreational and medical use.

I have spent a fair bit of time trying to rigorously assess, for Ohio and other jurisdictions, just how to measure and describe the "criminal justice footprint" of modern marijuana prohibition and how that footprint can be impacted by marijuana reform.  But while I am off-line today, I would be grateful to hear from readers just what they would be eager to know, as a voter considering a reform proposal, about how the criminal justice might change (or not change) due to repeal of marijuana prohibition in a jurisdiction.

August 13, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

Split Eleventh Circuit panel splits from Seventh Circuit approach on Johnson retroactivity

I had an inkling it might not take too long for lower courts to become divided on what the Supreme Court's big Johnson Armed Career Criminal Act ruling, which declared the residual clause of ACCA was void for vagueness, could and should mean for long-ago imposed sentences.  And, sure enough, less than seven weeks after the Johnson ruling, we already have a big circuit split.

As detailed in this post last week, the Seventh Circuit in Price v. US, No. 15-2527 (7th Cir. Aug. 4, 2015) (available here), decided that a defendant serving an ACCA-influenced sentence of 20+ years imposed way back in 2006 could bring a new, successor 2255 motion based on the Johnson ruling.  But, now as flagged effective via this post at the "Southern District of Florida" blog, a divided three-judge panel of the the Eleventh Circuit had a different take on this issue in In re Rivero, No. 15-13089 (11th Cir. Aug. 12, 2015) (available here). Here is a key passage from the marjority opinion in Rivero:

We acknowledge that one of our sister circuits has held that Johnson applies retroactively to decisions on collateral review, but we are unpersuaded by that decision. See Price v. United States, No. 15-2427 (7th Cir. Aug. 4, 2015).  In Price, the Seventh Circuit explained that “[t]here is no escaping the logical conclusion that the [Supreme] Court itself has made Johnson categorically retroactive to cases on collateral review” because “[a] defendant who was sentenced under the residual clause necessarily bears a significant risk of facing a punishment that the law cannot impose upon him.”  Id. at *7.  We disagree.  We can “escap[e] th[at] logical conclusion” because Congress could impose the punishment in Johnson if Congress did so with specific, not vague, language.

Our dissenting colleague assumes that the new rule announced in Johnson also applies to the residual clause of the career offender enhancement in the Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(2), but that assumption makes clear that precedents of the Supreme Court do not “necessarily dictate,” In re Anderson, 396 F.3d at 1339 (internal quotation marks and citation omitted), that Rivero may file his second or successive motion to vacate, set aside, or correct his sentence.  See Dissenting Op. at 15 n.2.  The Supreme Court has never held that the Sentencing Guidelines are subject to a vagueness challenge. And four of our sister circuits have held that the Sentencing Guidelines — whether mandatory or advisory — cannot be unconstitutionally vague because they “do not establish the illegality of any conduct” and are “designed to assist and limit the discretion of the sentencing judge.” United States v. Tichenor, 683 F.3d 358, 363–66, 365 n.3 (7th Cir. 2012); see also United States v. Smith, 73 F.3d 1414, 1418 (6th Cir. 1996); United States v. Pearson, 910 F.2d 221, 223 (5th Cir. 1990); United States v. Wivell, 893 F.2d 156, 159–160 (8th Cir. 1990).  But the absence of Supreme Court precedent provides an alternative ground for why we must deny Rivero’s application for leave to file a second or successive motion.

Especially because the Justice Department appears to be supporting Johnson retroactivity, I suspect we may end up with more circuits lining up behind Price than behind Rivero in the weeks ahead. But whatever transpires in other lower courts, it is now already clear that SCOTUS is going to need to take up Johnson's application before too long.

Some prior related posts:

August 13, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (3)

New juve research suggests punishment certainty matters over severity to achieve deterence

This recent posting via the Juvenile Justice Information Exchange, titled "Report: Certainty, Not Severity, Key in Deterring Juvenile Crime," spotlights recent research on juvenile punishment's impact. Here are excerpts:

Researchers first reported several years ago that a major longitudinal study of serious adolescent offenders showed the severity of their punishments had little effect on their recidivism rates. Digging into the data, the researchers also found that teenagers who commit serious crimes do respond to the threat or risk of sanctions, though not in a one-size-fits-all way.

In a new report released by the federal Office of Juvenile Justice and Delinquency Prevention [available here], researchers say the findings point to the need to devote resources to change risk perceptions, rather than prisons.

The report, “Studying Deterrence Among High-Risk Adolescents,” is one of several OJJDP bulletins based on research from “Pathways to Desistance,” the study that followed more than 1,300 young offenders for seven years after their court involvement.

The resulting research has found no meaningful reduction in offending or arrests due to more severe punishment, such as correctional placement versus probation or longer periods of institutional placement, the researchers said. But it did find that the certainty of punishment can play a role in deterring future crimes. Among adolescents who commit serious offenses, “recidivism is tied strongly and directly to their perceptions of how certain they are that they will be arrested,” the report said.

Edward Mulvey, the principal investigator on the Pathways study, said the idea that adolescents respond to the certainty of punishment, not severity, has found an audience with some policymakers. They are asking whether states should have to justify why the criminal justice system should hold an adolescent offender for a long time....

The new bulletin looks at how young offenders evaluate the risks of crime, which has a deterrence effect. Young people slightly increased their risk perceptions in response to an arrest, it found. The researchers said, though, there is no standard response to the certainty of punishment because risk perceptions vary based on individuals’ prior experiences or history of offenses and other factors.

August 13, 2015 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

August 12, 2015

Lots of great reads via The Marshall Project

I really enjoy all the work being done by The Marshall Project, and this collection of recent items from the site highlights why sentencing fans should be making regular visits there:

August 12, 2015 in Death Penalty Reforms, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"Make Them Hear You: Participatory Defense and the Struggle for Criminal Justice Reform"

The title of this post is the title of this interesting paper available via SSRN authored by Janet Moore, Marla Sandys and Raj Jayadev. Here is the abstract:

This Article introduces participatory defense as a powerful new model for improving public defense and challenging mass incarceration.  This grassroots movement empowers the key stakeholders — people who face criminal charges, their families, and their communities — to become change agents who force greater transparency, accountability, and fairness from criminal justice systems.  After introducing the model’s core principles and goals, the Article offers innovative analyses from doctrinal, theoretical and empirical perspectives.

First, the Article connects participatory defense with the crisis-ridden history of the constitutional right to counsel, including that doctrine’s roots in the Due Process right to be heard.  Second, the Article frames participatory defense within a new theory of criminal justice that emphasizes equality in the generation and administration of law. Finally, core principles of participatory defense are applied in cutting-edge empirical research that amplifies the voices of the key stakeholders in system assessment and offers new support for reform litigation and policy advocacy. 

August 12, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

New Hampshire enacts novel law requiring defendant's presence in courtroom for victim impact statements

As reported in this Reuters piece, headlined "New Hampshire to make criminals face victims' families at sentencing," one ugly sentencing case has lead the Granite State to enact a novel sentencing procedure law. Here are the details:

New Hampshire Governor Maggie Hassan on Tuesday signed a law that requires convicted criminals to appear in court at sentencing when victims’ families and friends are given the opportunity to express their pain. The law, believed to be the first of its kind in the United States, was proposed after a man convicted last year of murdering a 19-year-old college student asked not to attend his sentencing, saying he didn't want to hear the victim's family “yell and whine and bitch and moan.”

In the end, convicted murderer Seth Mazzaglia, 33, dropped the request and attended the sentencing, where family members of his victim, Elizabeth "Lizzy" Marriott, expressed profound grief and anger toward him.

Her father, Bob Marriott, was among several relatives of crime victims who backed the bill. At the bill-signing ceremony, Hassan praised Marriott “for speaking up on behalf of his daughter Lizzy, for his family, and for all families impacted by crime.”...

The signing comes almost a year to the day after Mazzaglia was sentenced to life in prison without parole for first degree murder involving sexual assault, among other crimes. He was accused of having his girlfriend lure Marriott to their apartment so he could have sex with her. Prosecutors alleged Mazzaglia strangled Marriott after she rejected his sexual advances and then raped her lifeless body.

The key text of this new law, which can be found here, provides that the "defendant shall personally appear in court when the victim or victim's next of kin addresses the judge, unless excused by the court." The final phrase of this provision, which allows the court to excuse the defendant, confirms my instinct that this new sentencing law is much more about symbolism than substance. That said, especially because the symbolism of the sentencing process is often quite important to crime vicitms, this novel law strikes me as a beneficial way to give victims that much more respect in a sentencing process that sometimes forgets about their various concerns.

August 12, 2015 in Procedure and Proof at Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0)

August 11, 2015

"Does Plea Bargaining Add to Criminal Court Caseloads?"

The question in the title of this post is the title of this new commentary by LawProf Darryl Brown at Casetext.  Here are excerpts:

Crime rates have been declining for twenty years, and more recently the caseloads in many state and federal courts have been declining as well, although somewhat more modestly. Yet as courts got a little breathing room, the rate of guilty pleas has not declined. Instead, in the federal system and some states, guilty pleas increased—usually from an already-high rate (as a share of total convictions) of 90 or 95 percent.  To legal scholars who have examined plea bargaining for decades, this was not a surprise.  Studies of courts in the 1970s found that plea bargaining did not decline even when caseloads for a local court system sharply fell, leaving prosecutors and judges with proportionately more time to handle the rest.  Federal plea bargaining, it now seems clear, increased as prosecutors gained more bargaining leverage from mandatory sentencing laws and federal guidelines that greatly restricted judges’ sentencing discretion.

Plea bargaining, in short, is not simply of function of crime rates and the criminal caseloads that result from them. It depends many things: whether the parties want to reach a deal, strength of the evidence, and — far from least — how much bargaining leverage the law gives to prosecutors. To say merely that “plea bargaining is essential” begs the real question.  It doesn’t answer whether all plea bargains we now achieve — 95 percent in federal courts — are compelled by caseloads and strapped budgets.  Plea bargaining may be essential, but how many — or what percentage of — cases must be resolved by guilty pleas rather than trials?...

Discretionary decisions play out differently when courts and prosecutors can handle more cases thanks to the efficiency of plea bargaining.  If it doesn’t “cost” as much to charge and convict, it is more tempting to do so.  Police know courts can process some additional petty offenses, and prosecutors know that they can handle more as well.  This doesn’t have to be a conscious recognition in every officials’ mind ... [but] plea bargaining helps to create a new set of norms or baselines — about how many cases prosecutors and judges ought to handle, about which defendants ought to plead guilty, and perhaps about which events deserve to be charged as crimes.  Cases with evidence so weak that a trial conviction is highly uncertain now look worth the effort because, with hard-ball right plea bargaining, they can be turned into convictions.  After years of achieving 95 percent of convictions through guilty pleas, a court system that suddenly had trials in 15 percent of cases would look like it is doing something wrong.  The defendants who insisted on those additional trials would seem like ones whose cases didn’t “deserve” a trial and, consequently, that merit a harsher sentence because they had one.

All of these things are hard to measure.  Empirical researchers have not yet demonstrated that plea bargaining actually drives up the number of cases in criminal courts.  It may be the kind of phenomena that simply can’t be reliably measured. But ... recall that criminal caseloads continue to increase long after crime began to decline in the early 1990s.  More tellingly, Professor John Pfaff has found that evidence that, in many states, prosecutors file charges a higher percentage of cases they receive from police than they did twenty or thirty years ago.  That is, they use their discretion less often to decline to prosecute.  Reasons for this are unclear.  Maybe police now collectively send prosecutors case reports backed by stronger evidence.  Maybe the current generation of prosecutors has tougher-on-crime views than the previous generation did.  But we ought to be concerned that we have made plea bargaining so common, and so efficient, that its effect has not simply been to enable the criminal justice system to process more cases without more judges and prosecutors.  There is a good chance that plea bargaining has also increased the number of criminal cases in the system.

That might be good thing if crime was increasing.  Or if we simply couldn’t afford to increase funding for prosecutors and judges at the same that we do for police and prisons.  Or if we placed no social and political value on trial by jury.  But none of that is true.  What is true is that, as we have increased the rate of guilty pleas from already high levels of 75 or 85 percent of convictions to 90 or 95 percent, the United States also created the single most punitive criminal justice system, with by far the highest incarceration rate, in modern world history.  That alone ought to be reason to worry that our exceedingly efficient system of plea bargaining has triggered “rebound effects.”

August 11, 2015 in Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)

Thanks to prior commutation, Missouri marijuana lifer now to get paroled

As reported in this Huffington Post piece, headlined "Man Who Was Serving Life In Prison For Marijuana To Be Set Free," there has been a notable development in a notable drug sentencing case in Missouri. Here are the details:

Jeff Mizanskey, a 61-year-old Missouri man who was serving life in prison for nonviolent marijuana offenses, will be set free in a matter of days, his attorney confirmed Monday to The Huffington Post. "We were notified today that he will be granted parole and be released within '10 to 25 days,'" lawyer Dan Viets said about the Missouri Department of Corrections' decision. Mizanskey had met with the parole board just last Thursday.

After two decades in prison, Mizanskey became eligible for parole in May when Missouri Gov. Jay Nixon (D) commuted his life sentence, while granting pardons to five other nonviolent offenders who had already completed their punishments. Parole was an option that Mizanskey did not have previously because he had been sentenced as a "prior and persistent drug offender" under Missouri's three strikes law, which was repealed last year.

All three of Mizanskey's offenses involved marijuana. He was given a life sentence after a conviction for attempting to sell about six pounds of pot in a 1993 police sting operation.

A Change.org petition seeking clemency for Mizanskey had received nearly 400,000 signatures. "Great news everyone... Jeff is coming home this month!" said a post Monday on the Free Jeff Mizanskey Facebook page. "We want everyone to know how greatful [sic] we are for all the support received throughout this whole ordeal."

Marijuana offenses, mainly involving simple possession, account for roughly half of all drug-related crimes. According to a recent report from the American Civil Liberties Union, 88 percent of the more than 8 million marijuana arrests between 2001 and 2010 were for possession alone. There were more arrests in the U.S. for marijuana possession in 2011 than for all violent crimes combined, according to the FBI's uniform crime report. The ACLU report also found significant racial disparities in the arrest patterns. While black and white Americans use marijuana at about the same rates, blacks were nearly four times more likely than whites to be arrested for marijuana during the years examined.

August 11, 2015 in Drug Offense Sentencing, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

"Buying Access: How Corporations Influence Decision Makers at Corrections Conferences, Trainings, and Meetings"

The title of this post is the title of this new report issued by In the Public Interest.  Here is the report's executive summary:

Private corrections companies, which contract with corrections departments and facilities to oversee and provide services to incarcerated people, make up a multibillion-dollar industry.  Every year, they devote resources to building influence with decision makers in order to find and capitalize on new business opportunities.  One key avenue of influence is through professional corrections associations, which are non-profit organizations that support corrections officials, including wardens, administrators, state Department of Corrections staff, sheriffs, and others through events, trainings, and public policy advocacy.

This report first details how companies spend millions of dollars sponsoring conferences, paying vendor fees, and providing other funding to gain access to the professional corrections associations.  This report then shows how corrections companies leverage this access in ways that can influence decision makers and benefit the companies’ bottom lines.

Considering corrections companies’ track records of providing low-quality services that harm prisoners, communities, and taxpayers, the influence they exert through professional corrections associations is cause for concern.

The research in this report is based on limited information that professional corrections associations make publicly available.  Consequently, the report’s findings constitute only a portion of the total contributions made by companies and the subsequent opportunities they receive to influence decision makers.

Private companies make contributions to professional corrections associations. In 2014, sponsors, vendors, corporate partners, and other non-individual entities contributed at least $3 million to five of the largest professional corrections associations, including the American Correctional Association, the American Jail Association, the Association of State Correctional Administrators, the Corrections Technology Association, and the National Sheriffs’ Association.

In return, corrections contractors are able to build relationships with and influence decision makers in key ways:

  • Corrections companies send executives and staff to professional corrections association conferences to meet decision makers. Many companies receive lists of attendees, allowing the corporate staff to target certain corrections officials.

  • Corrections companies lead trainings and workshops at conferences. Often times, companies will directly market goods and services.

  • Corrections companies host conference events where their executives and marketing staff meet with and give speeches to corrections officials.

  • Corrections companies market their products and services at conference vendor booths to identify potential government customers and generate leads.

  • Corrections companies advertise on conference materials, such as the program books, hotel room key cards, tote bags, and take-home mugs. This marketing encourages officials to consider the companies’ products and services when making purchasing and outsourcing decisions.

August 11, 2015 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Urban Institute creates intriguing on-line "Prison Population Forecaster"

I just learned about this notable new on-line resource from the Urban Institute, which it calls "The Prison Population Forecaster." Here is how the tool is described at the site:

Roughly 2.2 million people are locked up in prison or jail; 7 million are under correctional control, which includes parole and probation; and more than $80 billion is spent on corrections every year.

Research has shown that policy changes over the past four decades have put more people in prison and kept them there longer, leading to exponential growth in the prison population even while crime has dropped to historic lows.

But despite widespread agreement that mass incarceration is a serious problem, the national conversation is light on details about what it will take to achieve meaningful and sustainable reductions. What do states actually need to do roll back their prison populations by 10 percent? 20 percent? 50 percent?

To advance the policy conversation, decisionmakers and the public need to know the impact of potential policy changes. Our Prison Population Forecaster can estimate the effect, by state, of policies that aim to reduce prison admissions and length of stay for the most common types of offenses.

The tool currently uses data from 15 states, representing nearly 40 percent of the national prison population, to forecast population trends and project the impact of changes on rates of admission or lengths of stay in prison.

Using the tool, we can see that in some states, limiting prison admissions to only new crimes and diverting parole and probation revocations will substantially reduce the number of people behind bars. Other states can stem prison growth by tackling how they address drug and property offenses. Still others may discover that modest reductions in time served for violent offenses are necessary.

This forecasting tool paves the way for a more productive conversation about the need for tailored reforms that address the unique drivers of mass incarceration in each jurisdiction.

August 11, 2015 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

August 10, 2015

"Just Facts: America’s Non-Existent 'Spike in Crime'"

The title of this post is the headline of this interesting discussion and analysis by Matthew Friedman over at The Brennan Center for Justice. I recommend a full read of the post to get all the important details (and to see how LeBron James' free-throw shooting record is incorporated into the discussion). Here is how the post starts and ends to whet appetites:

Newspapers lately have been filled with disturbing headlines about “spikes in crime.”  In March, the New York Daily News wrote, “The murder rate in New York City has spiked an alarming 20% in the first two months of the year, prompting NYPD brass to rethink strategy to curb the deadly trend.”  The Los Angeles Times reported “LAPD struggles with spike in violent crime, shootings.”  Even the BBC asked “Why has the murder rate in some US cities suddenly spiked?”

These headlines, however, conflict with statistical data showing that we are actually enjoying some of the lowest crime rates in more than half a century.  Why then do we continue to see headlines that seem to say the exact opposite?  Moreover, how is it that most Americans inaccurately believe that crime is on the rise?

Well, when we don’t read past the headlines, it is hard to see the forest for the trees.  A closer analysis of crime over time provides a less alarming and more accurate picture of crime trends than the short-term analysis headline writers often rely on....

Data shows that there is no nationwide crime wave washing over our cities. And there is no compelling evidence that one is imminent either.  New York, like many other cities around the country, is experiencing an historic ebb in most types of crime.  So readers beware, don’t take headlines at face value.  Startling headlines need not lead to dire conclusions.

August 10, 2015 in National and State Crime Data | Permalink | Comments (2)

Could USSC's proposed amendment dealing with SCOTUS Johnson ruling be made retroactive (and how many federal prisioners could then get reduced sentences)?

Readers know that I have been making much of the potential practical impact of the Supreme Court's big ruling in Johnson v. United States, 135 S. Ct. 2551 (June 26, 2015) (available here).  Johnson declared that that a key clause defining violent offenses in the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws."   I have made much of the Johnson ruling's potental impact in part because its holding is inevitably going to echo for quite some time — in some ways predictable and in some ways unpredictable — through other important parts of federal sentencing law.

Perhaps the biggest early post-Johnson federal sentencing echo emerged late last week when, as reported in this US Sentencing Commission news release, the USSC put forth "proposed changes to the existing guideline definitions of a 'crime of violence' [which are] primarily intended to make the guideline consistent with the Supreme Court’s recent decision in Johnson v. United States, __ U.S. __, 135 S. Ct. 2551 (2015)."   This recent post provides the basic details of what the USSC is proposing, and all the official details appear in this USSC document.  

I am still working through the potential import and impact of what the USSC is proposing, and the USSC itself stresses that its proposed guideline amendment is not just preliminary.  But, as the question in the title of this post suggests, the import and impact of what the USSC is proposing would be that much bigger and that much more consequential if any USSC post-Johnson amendments were to be made fully retroactive by the Commission to all federal prisoners currently serving long guideline-career-offender-based sentences.

As hard-core federal sentencing practitioners know, sorting through whether, how and for whom guidelines amendments are made retroactive can be a tough slog both legally and practically.  But because many current prisoners potentially impacted any post-Johnson guideline amendments may already be able to bring Johnson-based constitutional challenges to their existing sentences, it might actually prove more efficient and effective for all actors in the federal sentencing system for the USSC to make any of its post-Johnson guideline amendments fully retroactive — rather than to have everyone in the system await court rulings (and inevitable circuit splits?) on just what Johnson means for prisoners now serving long prison sentences based on the existing (constitutionally suspect) guideline definitions of "crime of violence."

Some prior posts on Johnson and its possible impact:

August 10, 2015 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (4)

Taking stock of what Glossip now means for executions throughout the US

Exec_year (1)The most important practical question in the wake of the Supreme Court's ruling in Glossip upholding Oklahoma's execution protocol — not only for the roughly 3000 murderers currently on death row throughout the United States, but also for all those eager to see death sentences carried out — is whether Glossip will increase the chances and speed with which the condemned get taken to a death chamber for a execution.  This new AP article, headlined "Justices Speak out About Death Penalty, but Executions Go On," speaks somewhat to this reality (while also highlighting that court challenges to death sentences are not going to decline anytime soon).  Here are excerpts:

Wherever their summer travels have taken them, Supreme Court justices probably will weigh in over the next few days on Texas' plans to execute two death row inmates in the week ahead.  If past practice is any guide, the court is much more likely to allow the lethal-injection executions to proceed than to halt them.

Opponents of the death penalty took heart when Justices Stephen Breyer and Ruth Bader Ginsburg made the case against capital punishment in late June as arbitrary, prone to mistakes and time-consuming.  Even if death penalty opponents eventually succeed, the timeline for abolition probably will be measured in years, not months.

That's because Breyer, joined by Ginsburg, was writing in dissent in a case involving death row inmates in Oklahoma, and five sitting justices, a majority of the court, believe "it is settled that capital punishment is constitutional," as Justice Samuel Alito wrote in his opinion for the court in that same case.

Texas has scheduled back-to-back executions Wednesday and Thursday for Daniel Lee Lopez and Tracy Lane Beatty.  Lopez was convicted of running over a Texas police officer with his car during a high-speed chase. Lopez' lawyer already has asked the court to stop the execution.  Beatty strangled his 62-year-old mother, then stole her car and drained her bank accounts.  He has an appeal pending in lower courts and could also end up at the Supreme Court.

The justices rarely issue last-minute reprieves to death-row inmates.  Even after Breyer's opinion calling for a re-examination of capital punishment by the Supreme Court, no justice publicly backed a Missouri inmate's plea to halt his execution to allow the court to take up the constitutionality of the death penalty.

Similarly, the three Oklahoma inmates who lost their high court case now face execution in September and October and want the justices to reconsider the decision from June in light of Breyer's dissent. The court almost never does that....

The 18 executions that have taken place so far this year have been carried out in just five states — Texas, Missouri, Georgia, Florida and Oklahoma.  Nine of those were in Texas. Twelve states with the death penalty have not had an execution in more than five years. That list includes California and Pennsylvania, which between them have more than 900 death row inmates....

Geographic disparity was among several defects Breyer and Ginsburg identified in June. Another is the length of time many inmates spend living under a sentence of death, which Breyer had previously suggested also might be a violation of the constitutional ban on cruel and unusual punishment.  Six of the 18 men who have been executed in 2015 spent at least 20 years on death row, including one who served 31 years before his execution....

Among the questions surrounding the possibility that the Supreme Court would take up the constitutionality of the death penalty is the makeup of the court itself.  With four justices in their late 70s or early 80s, the next president might have the chance to fill several vacancies and could change the court's direction.

"Obviously, the composition of the court matters greatly and the biggest unknown variable about the life of the American death penalty is the presidential election of 2016.  My expected time frame for constitutional abolition varies greatly based on the result," said Jordan Steiker, a University of Texas law professor....

Steiker said he thinks Breyer's dissent will serve as a road map for death penalty lawyers and future justices who may not feel constrained to wait before grappling with executions. "It was invigorating to those who'd like to see constitutional abolition," he said. "The arguments not new, but they had not been marshaled as effectively by a justice until this opinion."

Critically, Glossip does not preclude Eighth Amendment challenges to various execution protocols, it just makes it somewhat harder for these challenges to prevail.  In addition, states continue to face practical challenges in acquiring execution drugs and often have to deal with with state-level execution administration difficulties.  For those reasons, I am not surprised we have not yet seen a significant post-Glossip up-tick in executions.  

More broadly, unless and until a handful of recently execution-dormant states with sizeable death rows get back in the execution business — states like Alabama, Arizona, California, North Carolina, Ohio and Pennsylvania — it remains likely that more condemned murderers on death rows in the US will die of natural causes than will have their capital punishments actually carried out.

August 10, 2015 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

August 9, 2015

New York Times says: "Congress and Obama Are Too Timid on Marijuana Reform"

A little more than a year ago, as first reported here, the New York Times editorial board ran a provocative serious of editorial calling for the end of marijuana prohibition.  I had hoped that in the following weeks and months the NYTimes editorial board would become a vocal and aggressive advocate and cheerleader for state marijuana reforms and federal reform proposals, but it seems there was relatively little editorial follow-up on this front subsequently.  This new editorial, headlined "Congress and Obama Are Too Timid on Marijuana Reform," perhaps makes up for some lost time by effectively chastising federal policy-makers for falling behind on the marijuana reform front.  Here are excerpts:

Even as support for ending marijuana prohibition is building around the country, Congress and the Obama administration remain far too timid about the need for change.

Last year, residents in Alaska, Oregon and the District of Columbia voted to join Colorado and Washington State in making recreational use of marijuana legal.  Later this year, residents of Ohio are expected to vote on a ballot measure that would legalize it. Nevadans will vote on a legalization proposal next year.  And Californians could vote on several similar measures next year.

Instead of standing by as change sweeps the country, federal lawmakers should be more actively debating and changing the nation’s absurd marijuana policies, policies that have ruined millions of lives and wasted billions of dollars.  Their inaction is putting businesses and individuals in states that have legalized medical and recreational marijuana in dubious legal territory — doing something that is legal in their state but is considered a federal crime.  Many growers, retailers and dispensaries also have to operate using only cash because many banks will not serve them, citing the federal prohibition....

Congress has taken a few positive steps, like approving a provision that would prevent the Justice Department from using federal funds to keep states from carrying out their own medical marijuana laws.  And some senior Republicans, including Mr. Grassley and Senator Orrin Hatch of Utah, have expressed support for the medical use of a compound known as cannabidiol, which is found in the cannabis plant but is not psychoactive.  The Obama administration recently made it easier for scientists to study marijuana by removing a requirement that studies not funded by the federal government go through an additional review process, beyond what is required for researchers working with other drugs.

But both Congress and the White House should be doing more.  Specifically, marijuana should be removed from the Controlled Substances Act, where it is classified as a Schedule I drug like heroin and LSD, and considered to have no medical value.  Removing marijuana from the act would not make it legal everywhere, but it would make it easier for states to decide how they want to regulate it.

Even as Washington demurs, efforts to legalize marijuana continue in the states.... Direct democracy can sometimes produce good results.  But it would be far better for Congress and the president to repeal failed laws and enact sensible drug policies.

Kudos to the Times for encouraging some proactive federal work in this arena, and I have long believed that an (easy?) first step for the feds might be to create some kind of marijuana reform task force or commission (or even a drug policy reform commission) along lines akin to the Colson Corrections Task Force recently created by Congress or the 21st Century Policing Task Force recently created by the President. There is so much state reform activity going on (and so much confusions about the impact of these reforms), I think the feds could and should at this point at least try to create an neutral institution that will study and assess all the rapid developments taking place at the state level.

As long-time readers know, one way for the feds and others to keep an eye on some highlights of state-level developments is by following my Marijuana Law, Policy & Reform blog. Here are just a few recent notable posts from that space:

August 9, 2015 in Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (2)

Why aren't sentencing recommendations part of the ABA-LDF's "Joint Statement on Eliminating Bias in the Criminal Justice System"?

I just came across recently this intriguing and lengthy "Joint Statement on Eliminating Bias in the Criminal Justice System" put together and released last month by the American Bar Association and the NAACP Legal Defense and Educational Fund. The statement has a lengthy introductory discussion of concerns about racial bias in the operation of American criminal justice systems, and here is part of this intro:

Given the history of implicit and explicit racial bias and discrimination in this country, there has long been a strained relationship between the African-American community and law enforcement. But with video cameras and extensive news coverage bringing images and stories of violent encounters between (mostly white) law enforcement officers and (almost exclusively African-American and Latino) unarmed individuals into American homes, it is not surprising that the absence of criminal charges in many of these cases has caused so many people to doubt the ability of the criminal justice system to treat individuals fairly, impartially and without regard to their race.

That impression is reinforced by the statistics on race in our criminal justice system.  With approximately 5 percent of the world’s population, the United States has approximately 25 percent of the world’s jail and prison population.  Some two-thirds of those incarcerated are persons of color.  While crime rates may vary by neighborhood and class, it is difficult to believe that racial disparities in arrest, prosecution, conviction and incarceration rates are unaffected by attitudes and biases regarding race....

Given these realities, it is not only time for a careful look at what caused the current crisis, but also time to initiate an affirmative effort to eradicate implied or perceived racial bias – in all of its forms – from the criminal justice system.

The statement then goes on to list 12 detailed action items in the form of reforms viewed to be "necessary investments that are essential to strengthening public confidence in the rule of law and the legitimacy of our justice system.  Dinconcerningly, though, none of these reforms addresses directly or even indirectly reforming sentencing laws that have initially emerged from questionable (and often racialized) assumptions and that have an indisputably disproportionate impact on communities of color. Here I am thinking particularly about the enduring federal crack/powder sentencing differential and many state felon disenfranchisement laws.

In addition, missing from the urged reforms is the useful idea long promoted by Marc Mauer and The Sentencing Project: having 'Racial Impact Statements' similar to fiscal or environmental impact statements prepared for any proposed criminal justice legislation so that legislators and the public can better assess and examine possible racial effects of all proposed legal reforms.  

In the end, I guess I understand the sentencing omissions in the Joint Statement given that recent controvesial police-citizen encounters seem to have been the driving force behind the document.  Still, I find it both curious and troubling that two critical advocacy institutions, both of which have played very important roles in advocating for sentencing reform, failed to have a least one of a dozen of bias-elimination reform proposals speak directly to modern sentencing laws and practices.

August 9, 2015 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (9)