September 12, 2015
Federal judge finds unconstitutional Missouri's operation of its sex-offender civil commitment program
As reported in this local piece, headlined "U.S. judge rules handling of state's sexual predator program is unconstitutional," a federal judge issued late friday a significant ruling concerning Missouri's sex offender laws. Here are the details:
In an awaited ruling from the federal bench, U.S. District Judge Audrey G. Fleissig ruled late Friday afternoon that Missouri’s sexually violent predator law is constitutional, but not how it’s applied. The judge wrote that there is a “pervasive sense of hopelessness” at the Department of Mental Health’s Sex Offender Rehabilitation and Treatment Services, or SORTS program, because patients aren’t being properly released.
With help from the state attorney general’s office, SORTS is indefinitely committing about 200 people to treatment in the belief that they might reoffend. The program has been praised and criticized since it began in 1999. Before the trial started in April, nobody had completed treatment and been allowed to live outside of secure SORTS facilities in Fulton or Farmington. They entered the program after completing prison sentences for sex crimes.
“The overwhelming evidence at trial — much of which came from Defendants’ own experts — did establish that the SORTS civil commitment program suffers from systemic failures regarding risk assessment and release that have resulted in the continued confinement of individuals who no longer meet the criteria for commitment, in violation of the Due Process Clause,” Fleissig wrote in her ruling.
“The Constitution,” the judge added, “does not allow (Missouri officials) to impose lifetime detention on individuals who have completed their prison sentences and who no longer pose a danger to the public, no matter how heinous their past conduct.” Those issues will be addressed soon in the remedy portion of the trial. A hearing will be held Sept. 29.
“I can’t believe it, man,” said John Van Orden, 55, who lived in the Springfield, Mo., area before being committed to SORTS in 2005. “It’s hard to describe after all that we have been through here. Finally, we get some light at the end of the tunnel.” The class-action lawsuit began in 2009.
Eric Selig, a lead attorney for the plaintiffs, said Friday: “We hope to work with the attorney general’s office and the Department of Mental Health to fix the program and start releasing the people who have successfully completed treatment, which is what the statute is all about.”...
Gov. Jay Nixon, a Democrat, has supported the program as a needed public safety tool. He has said judges weigh annual reports to determine when patients deserve to be released. And the Legislature, now Republican-controlled, adds a layer of oversight, scrutinizing the program’s budget. Plaintiffs’ attorneys attempted to punch holes in these positions and others during the eight-day federal bench trial that ended here April 30.
The judge agreed. In her ruling, she said the state of Missouri has not:
- Performed annual reviews in accordance with the Sexually Violent Predator Act.
- Properly implemented any program to ensure the least restrictive environment.
- Implemented release procedures, including director authorization for releases, in the manner required by the law.
At the center of the case in Missouri — and other states struggling with similar laws — was the question of whether SORTS facilities genuinely rehabilitate sex offenders, or are merely an extra layer of punishment outside of the prison system. In June, a federal judge in Minnesota ruled that indefinitely committing sex offenders is unconstitutional.
While the Missouri Attorney General’s Office argued at trial that progress is being made in treatment, plaintiffs’ attorneys harped on the fact that no patient had been released back into society. They used the state’s own witness to point out a sense of hopelessness among staff and patients, who already have completed prison sentences before being detained indefinitely for treatment.
Plaintiffs’ attorneys sifted through hundreds of thousands of pages of the program’s documents, including a memo from the former chief of operations who wrote in 2009 that 16 patients could be moved to the St. Louis Psychiatric Rehabilitation Center, a less restrictive facility at 5300 Arsenal Street. In the memo, Alan Blake wrote that the top five of those 16 patients could be moved “today” and “easily” pass a test that shows they can live close to neighbors without harm. “The rest may need greater support/treatment, but don’t represent a risk to the community in terms of compliance and appreciation of their situation,” Blake added. “The setting would likely enhance their treatment and provide motivation.” The memo went on to say that a few of the patients would even make good employees or peer counselors at the St. Louis rehab center.
Testimony in the federal case showed that those details — ones that seemed to show favorable patient progress — weren’t included in the annual reports to courts that make the ultimate decision about release. With the addition of 20 SORTS patients a year and nobody being released, plaintiffs’ attorneys pressed the issue of reforming the program and developing a fast track to a nursing home for elderly and infirm patients. At least 17 patients have died in the program, including one who was well into his 80s.
The full 60-page trial court ruling in this matter can be accessed at this link.
September 12, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11)
The title of this post is the title of this intriguing new paper by Cortney Lollar now available via SSRN. Here is the abstract:
Criminal restitution is a core component of punishment. In its current form, this remedy rarely serves restitution’s traditional aim of disgorging a defendant’s ill-gotten gains. Instead, courts use this monetary award not only to compensate crime victims for intangible losses, but also to punish the defendant for the moral blameworthiness of her criminal action. Because the remedy does not fit into the definition of what most consider “restitution,” this Article advocates for the adoption of a new, additional designation for this prototypically punitive remedy: punitive compensation.
Unlike restitution, courts measure punitive compensation by a victim’s losses, not a defendant’s unlawful gains. Punitive compensation acknowledges the critical element of moral blameworthiness present in the current remedy. Given this component of moral blameworthiness, this Article concludes the jury should determine how much compensation to impose on a particular criminal defendant.
The jury is the preferable fact-finder both because jurors represent the conscience of the community, and because the Sixth Amendment jury trial right compels this result. Nevertheless, many scholars and legislators remain reluctant to permit juries to determine the financial award in a particular criminal case. Courts and lawmakers share a common misperception that juries make arbitrary, erratic, and irrational decisions, especially in the context of deciding criminal punishments and punitive damages, both of which overlap conceptually with punitive compensation.
In debunking this narrative, this Article relies on empirical studies comparing judge and jury decision-making and concludes that juries are the more fitting fact-finder to determine the amount of punitive compensation to impose in a given case. Although anchoring biases, difficulties in predicting the duration and degree of a crime victim’s future emotional response, and poorly written jury instructions challenge juries, each of these impediments can be counteracted through thoughtful and conscientious systemic responses.
September 12, 2015 in Blakely Commentary and News, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)
September 11, 2015
Is Arkansas about to jump back seriously into execution business?
The question in the title of this post is prompted by this recent local article from the Natural State, headlined "Dates to die set for 8 inmates: State resuming executions; first two scheduled for Oct. 21." Here are the details:
After nearly a decade since an Arkansas inmate was put to death, Gov. Asa Hutchinson on Wednesday announced the execution dates for eight. Barring intervention from a court, the state will first mete out capital punishment, by lethal injection, to convicted murderers Bruce Ward and Don Davis. They have the earliest of the execution dates, Oct. 21.
Hutchinson said he expects the execution dates to be challenged in court, but he thinks the eight offenders have gotten "finality" in their cases and have exhausted all of their standard appeals.
Hutchinson spokesman J.R. Davis said the governor is "fulfilling" a duty of his office by setting the dates. "It's not something he takes lightly at all," J.R. Davis said. "But these crimes were heinous, and they were sentenced to death because of these crimes. He will carry those out."
Jeff Rosenzweig, an attorney for the eight men, said he will seek a court injunction to delay the executions. He noted that a lawsuit filed in June seeking disclosure of the source of the drugs used in executions is still pending. Act 1096, which was passed during this year's legislative session, prohibits the Arkansas Department of Correction from disclosing the source of the execution drugs, but Rosenzweig said his clients have a right to know who made the drugs. "There are some very serious issues, starting with the fact that the state wants to hide what drugs they're using or where they got them from. They want to hide that," Rosenzweig said. Divulging that information "tells us if it's a legitimate supplier or some fly-by-night operation. If it's a fly-by-night operation, it's torture."...
A combination of legal challenges and a lack of availability of lethal-injection drugs has halted executions in Arkansas for nearly a decade. The state's last execution was that of Eric Nance in November 2005. Nance was convicted of the 1993 murder of 18-year-old Julie Heath of Malvern. He was put to death using a three-drug cocktail of phenobarbital, potassium chloride and a paralytic agent.
As of Wednesday, a Department of Correction spokesman said, there were 26 other inmates on death row.
The eight executions will occur in pairs, J.R. Davis said, because "it's more efficient to do two on one date." He and Judd Deere, a spokesman for Arkansas Attorney General Leslie Rutledge, said all eight have exhausted their appeals....
The eight men whose execution dates are now set are challenging in Pulaski County Circuit Court the legitimacy of the state's death-penalty laws.
In 2013, then-Arkansas Attorney General Dustin McDaniel's office reached a settlement with the men, promising to disclose the source of the drugs that would be used in their executions. Act 1096 barred the release of that information, so Rosenzweig and other attorneys sued.
Rosenzweig conceded that several similar challenges have failed in federal courts across the country but said none of those challenges involved a pre-existing agreement between the prisoners and the state to share that information. Rosenzweig argues that his clients have a right to make sure the execution drugs come from a reputable source so that the risk of pain during the executions can be minimized. "We have a situation that the other states didn't have ... it's very different from us wandering into the court and saying 'Tell me this!' We're dealing with a commitment, a contract, an agreement made by the state," Rosenzweig said. "This has ramifications far beyond executions."
Until recently, state officials had difficulties obtaining lethal-injection drugs. In 2011, the state handed over its supply of the execution drug sodium thiopental to federal drug agents after the state's prison department got the drug from a wholesaler operating out of a driving school in London. In June, the state obtained potassium chloride, vecuronium bromide and midazolam at a cost of $24,226.40.
Midazolam's effectiveness as a sedative in executions has been questioned after some botched executions, including that of Clayton Lockett, who struggled and convulsed for 43 minutes during his April 2014 execution in Oklahoma. In June, the U.S. Supreme Court, rejected claims that Oklahoma's use of midazolam violated death-row inmates' Eighth Amendment rights, and ruled that midazolam could continue to be used in executions.
On Aug. 6, the Arkansas Department of Correction formalized its policies and procedures for carrying out executions. On Sept. 1, Rutledge asked that the governor schedule the executions.
"Dignity and the Eighth Amendment: A New Approach to Challenging Solitary Confinement "
The title of this post is the headline of this notable new Issue Brief authored by Laura Rovner released today by the American Constitution Society for Law and Policy. Here are excerpts from the start of the brief (with footnotes omitted:
Solitary confinement irreparably harms people. For those who have endured long-term isolation, it is not an overstatement to describe it as a living death: “Time descends in your cell like the lid of a coffin in which you lie and watch it as it slowly closes over you. When you neither move nor think in your cell, you are awash in pure nothingness. . . . Solitary confinement in prison can alter the ontological makeup of a stone.” U.S. Supreme Court Justice Samuel Miller, who was a physician as well as a lawyer, recognized the harms of solitary confinement as far back as 1890....
[I]t was more than a century ago, as Justice Kennedy recently reminded us, that the Supreme Court first recognized the harm solitary confinement causes and nearly declared it unconstitutional. Yet, despite this unequivocal condemnation of solitary confinement by the nation’s highest court, over the course of the century that followed — and especially the last three decades — most states and the federal government have significantly increased their use of penal isolation. Today, conservative estimates place the number of people in solitary confinement at over 100,000. And they are there largely with the blessing of the federal courts.
While the Eighth Amendment’s prohibition against cruel and unusual punishment appears to provide mechanisms to challenge the use of long-term solitary confinement, the way the federal courts have interpreted the amendment in the past two decades has rendered judicial review virtually meaningless, resulting in an unprecedented number of people being held in conditions of extreme solitary confinement. Part I of this Issue Brief examines the nature of solitary confinement and how it developed in the U.S. Part II discusses (in broad outlines) the current jurisprudence of Eighth Amendment solitary confinement litigation. Finally, Part III offers some reasons for optimism going forward and one promising path to achieving meaningful reforms through constitutional challenges to the practice.
DOJ files amicus brief in PA Supreme Court supporting prosepctive "constructive denial of counsel claims"
As reported in this press release, the US "Department of Justice has filed an amicus curiae brief in the Supreme Court of Pennsylvania in Adam Kuren, et al. v. Luzerne County, et al.," a case concerning local county's public defense structure. Here is more about the case and the filing via the press release:
The class action asserts that the public defense system in Luzerne County, Pennsylvania, is so underfunded and poorly staffed that the attorneys appointed to represent indigent adults accused of committing criminal acts are attorneys in name only. The department’s brief focuses solely on the question of whether indigent defendants can bring a civil claim alleging a constructive denial of counsel under the Sixth Amendment to the United States Constitution. This brief represents the department’s first filing to address constructive denial of counsel in a state’s highest court.
“For too many public defenders, crushing caseloads and scarce resources make it impossible to adequately represent clients who need and deserve assistance in legal matters,” said Attorney General Loretta E. Lynch. “The Constitution of the United States guarantees adequate counsel for indigent defendants, and the Department of Justice is committed to ensuring that right is met.”
“This brief recognizes the importance of the right to counsel as fundamental to a fair criminal justice process,” said Principal Deputy Assistant Attorney General Vanita Gupta, head of the Civil Rights Division. “The Civil Rights Division will continue to ensure that this essential right is protected.”...
In Kuren, the plaintiffs allege that their Sixth Amendment right to counsel has been violated by the failure of the county to provide adequate resources to the Luzerne County Office of the Public Defender (OPD). According to the plaintiffs, due to the overwhelming volume of work, OPD lawyers are unable to engage in many of the basic functions of representation, including conferring with clients in a meaningful way prior to critical stages of their legal proceedings, reviewing client files, conducting discovery, engaging in motion practice, conducting factual investigations or devoting the time necessary to prepare for hearings, trials and appeals. The plaintiffs claim that the conditions are systemic and so egregious that although a lawyer may technically be appointed to represent them, they will be constructively denied their right to counsel.
In its amicus brief, the department asserts that, “the Sixth Amendment right to counsel requires more than the mere appointment of a member of the bar.” Additionally, the amicus brief goes on to explain that the right of indigent criminal defendants to an attorney may be violated by the government’s “actual denial of counsel or by a constructive denial of counsel.” A civil action to remedy such violations is viable when traditional markers of representation such as “timely and confidential consultation with clients, appropriate investigation, and meaningful adversarial testing of the prosecution’s case” are systemically absent or compromised and when substantial structural limitations “such as a severe lack of resources, unreasonably high workloads, or critical understaffing of public defender offices” result in such absence or limited representation.
This notable DOJ amicus brief is available at this link.
September 10, 2015
Is Donald Trump's bluster hurting the cause of federal sentencing reform?
The question in the title of this post is prompted by this notable lengthy new TPM piece sent to me by a helpful reader and headlined "How Donald Trump Threatens To Blow Up Bipartisan Criminal Justice Reform." Here are excerpts:
A long-awaited, hard-fought criminal justice reform push is coming to Washington this fall, with lawmakers of both parties making progress on legislation to curb mass incarceration. But after spending years convincing lawmakers that tackling the issue of mass incarceration would not make America more dangerous or put their political careers in jeopardy, advocates are now watching with growing dread as the GOP primary veers back toward the usual tough on crime rhetoric.
Just a few months ago, reformers were celebrating that most of the 2016 GOP pack had signaled that, at least in theory, they supported retooling America's justice system. But, as has been the case with so many other sensitive issues, the entrance of Donald Trump has changed the dynamic. Now instead of talking about criminal justice reform, the GOP primary contenders are warning of a supposed nationwide crime spike, touting the mandatory-minimums in "Kate’s Law," and lobbing “soft on crime" accusations.
“I’m concerned about the impact on the push for justice reform because we’re expecting a bill at some point this month,” Jason Pye, director of Justice Reform at the conservative FreedomWorks, told TPM. “I’m concerned about the impact of the rhetoric on that.”
Trump may not solely be to blame for the shift in tone. But in interviews with TPM before his entrance in to the race, justice reform advocates expressed cautious optimism that the GOP field had more or less coalesced around curbing mass incarceration, and they believed it was unlikely to become a flashpoint in the primary.
Trump may have conflated the issue, they now contend, by linking illegal immigration and violent crime, thus prompting many of his rivals to take harder lines, too. Coupled with warnings of a summer crime spike, the campaign trail has taken a turn back to the ‘90s, with candidates falling into old patterns of invoking crime fears to rile their constituencies.
“For the most part these candidates aren’t talking about these issues right now, it’s largely focused one person and we know who that person is, for better or for worse,” said Pye of FreedomWorks, the major DC advocacy outfit with Tea Party roots that plays an important role in pushing criminal justice reform from the right....
Last week, Trump released an ad attacking former Gov. Jeb Bush that critics said echoed the notorious Willie Horton ad that Bush's father used against Michael Dukakis in the 1988 presidential race. The ad flashes the mugshots of undocumented immigrants charged or convicted of murder over Jeb Bush's infamous immigration is an "act of love" comments, and ends with placards saying "Love? Forget Love. It's Time Get Tough!" Bush's spokesperson responded by calling Trump a "soft on crime liberal."
“They look like tweedledum and tweedle dumber in terms of this very retro style of exploiting these old arguments,” liberal justice reform leader Van Jones said in an interview with TPM last week, referring to the Trump and Bush spat.
Meanwhile, conservatives have taken a harsh line on Black Lives Matter, a movement that includes calls for overhauling law enforcement and justice policies. Led by Fox News, conservatives have accused the protest movement, without basis, of inciting violence against police officers. Trump accused Black Lives Matter this week of "looking for trouble” and suggested they were being "catered to" by Democrats.
The rhetoric has spread beyond Trump, which is of particular concern to criminal justice reform advocates. A few high-profile police deaths have prompted candidates like Sen. Ted Cruz (R-TX) and Wisconsin Gov. Scott Walker (R) to blame the Obama administration for, as Walker put it, “a tendency to use law enforcement as a scapegoat.” New Jersey Gov. Chris Christie (R) has called for the return of stop and frisk, vowed to crack down on marijuana legalization, and blamed “liberal-leaning mayors and cities” and their “lax criminal justice policies” for the stabbing death of a former intern in Washington, D.C.
“There are two things that are troubling,” said Inimai Chettiar, director of Justice at the Brennan Center. “One, that people are saying that there is a crime wave now and they’re implying that crime is going to be going up as a permanent trajectory -- which is wrong -- and that second people are blaming criminal justice policies and particularly policing policies for this.”...
Already, balancing the various concerns of those interest groups was a delicate dance for lawmakers hammering out federal legislation. But heated campaign claims -- be it about Black Lives Matter, undocumented immigrants or police fatalities -- isn’t helping to smooth over tensions....
Nevertheless, Senate advocates for reform insist legislative progress can be made despite the campaign trail rhetoric. “There’s been heated rhetoric for decades around justice reform,” said Ben Marter, a spokesman for Sen. Dick Durbin (D-IL), who is involved in crafting the anticipated compromise bill. “But the senators negotiating this legislation have put their partisan differences aside to negotiate a solution in good faith.”
Likewise, advocates are hopeful the most ardent justice reformers in the GOP field will resist relying on such language. “I would get worried if suddenly other candidates less desperate and flailing than Governor Bush started jumping on that bandwagon,” Jones said.
But the proposal known as Kate’s Law shows how easily legislative progress can be undercut by the kind of the knee-jerk reactions to sensationalized tragedies that contributed to the creation of mass incarceration policies in the first place. The legislation, inspired by Steinle's murder, would impose mandatory sentencing minimums on undocumented immigrants who return to U.S. after being deported and, according to Families Against Mandatory Minimums, would add nearly 60,000 people to the federal prison population.
Trump has made Steinle’s murder a focal point of his campaign (despite the desires of her family), and conservative media have fanned the flames. Cruz -- who has previously touted his interest in criminal justice reform -- has embraced the measure, while other candidates have also expressed support. So far, cooler heads in Congress have prevented Kate’s Law from gaining traction there. “Watching Kate’s Law unfold is like watching history repeat itself,” FAMM government affairs counsel Molly Gill told TPM, comparing it to 1986 drug overdose by college basketball star Len Bias that led to federal mandatory drug sentencing. “We’ve come a long way in the last 30 years in our understand of crime and recidivism and using evidence-based approaches. But a lot of times we’re still legislating like that never happened."
For years, criminal justice reformers have labored to convince politicians that dismantling ‘80s and ‘90s era crime legislation -- through cutbacks on mandatory minimums or softening of drug laws -- will not making them look “soft on crime.” The best proof they had was the success of a number of state lawmakers -- especially in red states -- in curbing mass incarceration without facing political consequences. They have also had to do this working within a tenuous coalition balancing competing priorities. “With consensus around criminal justice reform from both sides of the aisle that hasn’t been seen for a generation, it would be a shame for presidential candidates to undermine this by exploiting negative imagery and stereotypes for mere political gain,” said Janai Nelson, associate director-counsel of the NAACP Legal Defense and Educational Fund, in a statement to TPM.
Prez Obama makes a new (and a renewed) nomination to the US Sentencing Commission
Late yesterday, as detailed in this official press release, "President Obama nominated Judge Richard Franklin Boulware II and Judge Charles R. Breyer to serve on the United States Sentencing Commission." Hard-core sentencing fans know that Judge Breyer has been serving on the USSC since 2013, so his nomination is really just a reappointment, but Judge Boulware brings new blood to this commission, and here is his bio from the White House Press release:
Judge Richard Franklin Boulware II is a United States District Judge for the District of Nevada, a position he has held since June 2014. Prior to his appointment to the bench, he worked at the Federal Public Defender’s Office in Las Vegas from 2007 to 2014, where he served as the lead attorney on complex white-collar cases from 2010 to 2014. From 2003 to 2007, he was a trial attorney at the Federal Defenders of New York. Judge Boulware began his legal career as a law clerk to the Honorable Denise Cote of the United States District Court for the Southern District of New York from 2002 to 2003. He received his J.D. in 2002 from Columbia Law School and his A.B. cum laude in 1993 from Harvard College.
In addition to being excited that Prez Obama has nominated a new judge and a former federal public defender to serving on the Commission, I am now hoping that Judge Boulware's appointment could mean future USSC conferences might get slated for Las Vegas.
Jokes aside, because the USSC has been short of commissioners during a very busy time for federal sentencing reform, I am glad Prez Obama has finally moved to fill one of the open spots on the Commission. I sincerely hope Judge Boulware secures a speedy confirmation and that Prez Obama soon nominates another commissioner as well.
Validity of Pennsylvania Gov halting of death executions considered by state Supreme Court
As reported in this new AP piece, "Pennsylvania Gov. Tom Wolf's lawyers defended his use of death row reprieves to achieve a moratorium on executions, a promise he made on the campaign trail, while prosecutors challenged its constitutionality at a hearing Thursday before the state Supreme Court." Here is more on the hearing:
The lead attorney for Wolf, whose 7-month-old strategy has angered prosecutors and energized death penalty foes, said the only legal question is whether the governor has authority to issue reprieves. "The answer is clearly 'yes,'" said H. Geoffrey Moulton Jr., a deputy in the governor's Office of General Counsel. Moulton acknowledged that Wolf cannot suspend the death penalty but said he can grant temporary reprieves without having to explain his reasons.
A top lawyer for the Philadelphia district attorney's office, which filed a court challenge days after Wolf announced his plan, said the governor is improperly using reprieves by tying them to an overdue report from a legislative task force on capital punishment. "We're waiting for something to be satisfactorily addressed that can never be addressed at all," said Hugh Burns, chief of the office's appeals unit.
"You don't know that," Justice Max Baer interjected. "We don't have the report."
All five justices quizzed the lawyers. Justices Debra Todd and J. Michael Eakin questioned whether Wolf's strategy is technically a moratorium or merely a series of individual reprieves. "He announced a moratorium, not a reprieve," Eakin said.
The case before the state's highest court case revolves around condemned prisoner Terrance Williams, whose scheduled March execution for the tire-iron beating death of another Philadelphia man more than 30 years ago was canceled by the first of three reprieves that Wolf's office says he has granted since February....
Wolf said he intends to continue granting reprieves until the Pennsylvania Task Force and Advisory Committee on Capital Punishment makes its recommendations and they are "satisfactorily addressed."
Some prior related posts:
- Pennsylvania Gov declares moratorium on state death penalty
- Philadelphia DA sues Pennsylvania Gov asserting execution moratorium is "lawless" and "flagrantly unconstitutional"
- Pennsylvania Supreme Court to review, slowly, Gov Wolf's execution moratorium
- Victims and law enforcement assail Gov Wolf's execution moratorium in Pennsylvania
- Pennsylvania House seizes political opportunity to complain about Gov doing something (sort of) about state's dysfunctional death penalty
- Pennsylvania Attorney General calls Governor's execution moratorium an "egregious violation" of the state constitution
Notable collective makes plans for "smart on crime" criminal code reform in Ohio
My local Columbus Dispatch has this new Ohio criminal justice reform story headlined, "Statehouse leaders push for shorter prison sentences, reducing prison population." Here are the (still a bit fuzzy) details concerning what is afoot in the Buckeye state:
Ohio officials are undertaking a sweeping reform of the state’s criminal justice code, potentially resulting in shorter prison sentences and fewer people going to prison for non-violent drug crimes.
An unusual bipartisan coalition, including top legislative leaders, tax reformer Grover Norquist, an American Civil Liberties Union official, and Piper Kerman, author of Orange is the New Black: My Year in a Women's Prison, announced plans today to overhaul Ohio’s lengthy and cumbersome criminal code top-to-bottom.
“No one is here to say today that criminals should not be punished. We are here to say that not all crimes or criminals are created equal,” Senate President Keith Faber, R-Celina, said at a Statehouse press conference. “This is not about being hard or soft on crime. It’s about being smart on crime.”
No specifics were announced. Exactly how the criminal code will be overhauled will be up to the 24-member Ohio Criminal Justice Recodification Committee appointed by the legislature. Faber said he told the committee to “swing for the fences” when it comes to big picture reform ideas. But he balked when asked about two specific areas: revising parole standards for current inmates and marijuana legalization.
The consensus of speakers was that the reform goals are reducing the prison population by incarcerating fewer non-violent drug offenders and people with mental health issues, eliminating mandatory, flat sentences, and removing barriers for ex-offenders to return to society....
Speaker after speaker criticized the burdensome incarceration rate in Ohio and the U.S., the highest in the world. “Locking people in cages is extreme and dehumanizing,” said Allison Holcomb, head of the ACLU’s national Smart Justice program. “This is the top priority for us.”
Norquist, president of the conservative Americans for Tax Reform, said he views reform from more of an economic standpoint. “We have too many people in prison and not the right people in prison,” he said. That is costing taxpayers far too much, he said.
Kerman, now living in Columbus, came to public attention as author of her real-life story that led to the Netflix series, Orange is the New Black. “I’m fairly confident I’m the only person up here with a felony,” Kerman said opening her remarks. Following her release from a Connecticut prison on a drug-related money laundering charge, she became an advocate for sentencing and parole reform. She is teaching writing to inmates at two Ohio prisons.
Faber said the recodification committee, which is chaired by Auglaize County Common Pleas Judge Fred Pepple, does not have a specific deadline for completing its work. The final recommendations must be passed by the General Assembly.
New Justice Department sound and fury about white-collar prosecutions signifying....?
The interrupted question in the title of this post is my first-cut reaction and uncertainty in response to this front-page New York Times report on new Justice Department guidance concerning white-collar prosecutions. The NYTimes piece is headlined "Justice Department Sets Sights on Wall Street Executives," and here are excerpts:
Stung by years of criticism that it has coddled Wall Street criminals, the Justice Department issued new policies on Wednesday that prioritize the prosecution of individual employees — not just their companies — and put pressure on corporations to turn over evidence against their executives.
The new rules, issued in a memo to federal prosecutors nationwide [which can be accessed here], are the first major policy announcement by Attorney General Loretta E. Lynch since she took office in April. The memo is a tacit acknowledgment of criticism that despite securing record fines from major corporations, the Justice Department under President Obama has punished few executives involved in the housing crisis, the financial meltdown and corporate scandals.
“Corporations can only commit crimes through flesh-and-blood people,” Sally Q. Yates, the deputy attorney general and the author of the memo, said in an interview on Wednesday. “It’s only fair that the people who are responsible for committing those crimes be held accountable. The public needs to have confidence that there is one system of justice and it applies equally regardless of whether that crime occurs on a street corner or in a boardroom.” Photo
Though limited in reach, the memo could erase some barriers to prosecuting corporate employees and inject new life into these high-profile investigations. The Justice Department often targets companies themselves and turns its eyes toward individuals only after negotiating a corporate settlement. In many cases, that means the offending employees go unpunished.
The memo, a copy of which was provided to The New York Times, tells civil and criminal investigators to focus on individual employees from the beginning. In settlement negotiations, companies will not be able to obtain credit for cooperating with the government unless they identify employees and turn over evidence against them, “regardless of their position, status or seniority.” Credit for cooperation can save companies billions of dollars in fines and mean the difference between a civil settlement and a criminal charge....
But in many ways, the new rules are an exercise in public messaging, substantive in some respects but symbolic in others. Because the memo lays out guidelines, not laws, its effect will be determined largely by how Justice Department officials interpret it. And several of the points in the memo merely codify policy that is already in place.
“It’s a good memo, but it states what should have been the policy for years,” said Brandon L. Garrett, a University of Virginia law professor and the author of the book “Too Big to Jail: How Prosecutors Compromise With Corporations.” “And without more resources, how are prosecutors going to know whether companies are still burying information about their employees?”
It is also unknown whether the rules will encourage companies to turn in their executives, but Ms. Yates said the Justice Department would not allow companies to foist the blame onto low-level officials. “We’re not going to be accepting a company’s cooperation when they just offer up the vice president in charge of going to jail,” she said.
Under Attorney General Eric H. Holder Jr., the Justice Department faced repeated criticism from Congress and consumer advocates that it treated corporate executives leniently. After the 2008 financial crisis, no top Wall Street executives went to prison, highlighting a disparity in how prosecutors treat corporate leaders and typical criminals. Although prosecutors did collect billions of dollars in fines from big banks like JPMorgan Chase and Citigroup, critics dismissed those cases as hollow victories.
Justice Department officials have defended their record fighting corporate crime, saying that it can be nearly impossible to charge top executives who insulate themselves from direct involvement in wrongdoing. Ms. Yates’s memo acknowledges “substantial challenges unique to pursuing individuals for corporate misdeeds,” but it says that the difficulty in targeting high-level officials is precisely why the Justice Department needs a stronger plan for investigating them....
Ms. Yates, a career prosecutor, has established herself in the first months of her tenure as the department’s most vocal advocate for tackling white-collar crime. She foreshadowed plans for the new policy in a February speech to state attorneys general, in which she declared that “even imposing unprecedented financial penalties on the institutions whose conduct led to the financial crisis is not a substitute for holding individuals within those institutions personally accountable.”...
While the idea of white-collar investigations may conjure images of raids of corporate offices by federal agents, the reality is much different. When suspected of wrongdoing, large companies typically hire lawyers to conduct internal investigations and turn their findings over to the Justice Department. Those conclusions form the basis for settlement discussions, and they are likely to take on greater significance now that companies will be expected to name names....
Still, even if the Justice Department’s effort succeeds, it will not automatically put more executives behind bars. Mr. Garrett, the University of Virginia law professor, analyzed the cases in which corporate employees had been charged. More than half, he said, were spared jail time.
I am going to need to read the new Yates memo a few times before I will have any sense of whether and how this new guidance to federal prosecutors is likely to really "move the needle" with respect to white-collar prosecutions. But, in part because my white-collar expertise and experience is at the sentencing stage after an individual has been charged and convicted of a federal economic crime, I am not sure I will ever be able to see clearly from the very back-end of the federal criminal process how much this memo could alter what typically happens at the very front-end of the federal criminal process in the corporate crime world.
In turn, I would be grateful to receive (in the comments or off-line) input from persons with more experience than me on the front-end of corporate criminal investigations about whether this Yates memo signifies much or not so much in the white-collar world. If nothing else, I suspect the Yates memo will prompt many "client alert memos" from big corporate law firms to their corporate clients, and perhaps what those client alerts say about the Yates memo could matter as much as what the Yates memo itself says.
UPDATE: At this link one can now find the text of the big speech Deputy Attorney General Sally Quillian Yates delivered today at New York University School of Law concerning DOJ's "New Policy on Individual Liability in Matters of Corporate Wrongdoing." White-collar practitioners will want to read the speech in full, and here is one thematic paragraph from the heart of the text:
But regardless of how challenging it may be to make a case against individuals in a corporate fraud case, it’s our responsibility at the Department of Justice to overcome these challenges and do everything we can to develop the evidence and bring these cases. The public expects and demands this accountability. Americans should never believe, even incorrectly, that one’s criminal activity will go unpunished simply because it was committed on behalf of a corporation. We could be doing a bang-up job in every facet of the department’s operations — we could be bringing all the right cases and making all the right decisions. But if the citizens of this country don’t have confidence that the criminal justice system operates fairly and applies equally — regardless of who commits the crime or where it is committed — then we’re in trouble.
September 10, 2015 in Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)
Notable passages showing Bill Otis sometimes agrees with criminal defense perspectives
I make Crime & Consequences a daily read because all the blog's contributors consistently make forceful and interesting points about crime and punishment. Though I disagree with some perspectives (and especially some of the rhetorical flourishes) expressed at C&C, I especially appreciate efforts made by the C&C commentators to be thoughtful and forthright in expressing their views. And, especially because I sometimes use this space to take on contentions made by Bill Otis, a few passages in a couple of recent posts have made me eager to spotlight Bill's embrace of positions (and funding commitments) typically associated with criminal defense attorneys rather than prosecutors.
For one example, on the topic of offender rehabilitation, Bill a few weeks ago had this post titled "Rehab Flops" noting this recent study about programming that made significant investment in employment-focused prisoner re-entry programs but resulted in "program group members [being] no less likely to have been convicted of a crime or incarcerated than control group members." In reaction, Bill made these notable points (with my emphasis added):
First, genuine rehabilitation cannot come from a government program. It has to come from the inmate's heart. Once he decides he wants to change the way he deals with the world, he has a chance. Until then, he doesn't. The government is simply not wise enough to know how to make the fundamental change true rehabilitation requires, and I (for one) wouldn't want a government powerful enough to try.
Second, we should nonetheless increase our spending on rehab. The chances are low but the stakes are high. Almost every prisoner returns to civil society. For his sake and for ours, every effort should be made to give him the best shot we can, even knowing the chances are poor.
For another example, on the topic of defense representation, Bill yesterday had this this post titled "Shocking Report: Defense Lawyers Find that Defense Lawyers Should Get More Money" noting the new NACDL report on federal indigent criminal defense discussed here. Notwithstanding the snarky title of his post, Bill added this commentary that should warm the hearts of the authors of this report:
How to put an honest assessment of this "report?" It's true.
Sorry to disappoint those waiting for the acid to be poured, but indigent defense counsel actually do deserve better pay and more resources. (So do federal prosecutors, but that's another post).I was an AUSA for 18 years, and it was my experience that federal defenders are underpaid for the quality of work they do. They may be significantly underpaid....Temperament varied quite a bit. Some were there to insure the client got his rights protected and the government got put to its proof. Some were there because they thought of the client as the Little Guy, the man who never had much of a chance in life. Some were there because they had been fighting with authority figures since fifth grade. And some were there because they thought you, the prosecutor, were a poorly disguised Nazi, and were happy to let you know it in every single court appearance.Still, for whatever the attitude, the quality of representation ranged from plainly adequate to outstanding. They put in long hours. In private practice, they would have made much more.There is an unpleasant truth that we, as taxpayers, need to understand: Justice isn't cheap. This applies to the death penalty, incarceration, (attempts at) rehabilitation, and salaries for prosecutors and defenders. If you want quality, sooner or later you have to pay for it.The NACDL is right. It's time to increase the compensation of defense lawyers.
"No Reason to Blame Liberals (or, the Unbearable Lightness of Perversity Arguments); Review of the First Civil Right: How Liberals Built Prison America, by Naomi Murakawa"
The title of this post is the title of this new review by Margo Schlanger available via SSRN discussing a provocative book about the American political left's role in mass incarceration. Here is the abstract:
This is a review of The First Civil Right: How Liberals Built Prison America, by political scientist Naomi Murakawa. Murakawa takes as her target a conventional wisdom that explains the rise of mass incarceration as a victory of Republican law-and-order over Democratic civil rights. Rather, she argues, starting right in her subtitle, “liberals built prison America.” It was liberals, she claims, who “established a law-and-order mandate: build a better carceral state, one strong enough to control racial violence in the streets and regimented enough to control racial bias in criminal justice administration.” Her major point along these lines is that the liberal preoccupation with using fair, non-racist procedures has contributed importantly to the growth of the carceral state, taming reform urges, entrenching the punitive regime. This argument sounds in perversity — on Murakawa’s account, liberalism’s attempt to improve racial justice using procedural tools not only fails, it is counter-productive, entrenching and worsening the system’s inequities.
The review critiques Murakawa's focus on federal crime policy as missing the more important state and local dynamics. In addition, it argues that Murakawa's perversity argument is essentially aesthetic — that she adduces only post-hoc/propter-hoc kind of evidence that the liberal proceduralism she highlights has accompanied the ballooning of the incarcerated population. That is far from enough to convict generations of liberals — many though not all of whom decried overincarceration, as well as the unfair procedures that accompanied it — of the charge that they “built prison America.”
Prior related posts:
- "How White Liberals Used Civil Rights to Create More Prisons"
- Political scientist highlights how Ted Kennedy and Joe Biden helped produce modern mass incarceration
- "Who Built Prison America? Not Ted Kennedy"
September 9, 2015
Examining death penalty developments in distinct death penalty states
The death penalty is subject to plenty of attention and scrutiny nationwide and especially in states that have traditionally carried out the most executions like Texas and Oklahoma. But, I have noticed in the last few weeks some headline-making developments and/or notable commentary concerning capital punishment procedures and practices in a lot of distinct states with distinct death penalty histories. Going alphabetically by state, here is a round-up of some of the recent media pieces that have caught my eye:
Delaware: "Judge blasts Delaware death penalty case"
Pennsylvania: "End Pennsylvania’s limbo over death penalty"
"Federal Indigent Defense 2015: The Independence Imperative"
The title of this post is the title of this notable new report released today by the National Association of Criminal Defense Lawyers. Here is a summary of the reports contents via excepts from this NACDL news release:
After over 18 months of study, more than 130 individuals interviewed (including federal judges, federal defenders, Criminal Justice Act (CJA) panel attorneys, Administrative Office of the U.S. Courts (AO) personnel, and others, representing 49 states and all federal judicial circuits), hundreds of documents reviewed, and surveys conducted, the National Association of Criminal Defense Lawyers (NACDL) today officially releases a major report — Federal Indigent Defense 2015: The Independence Imperative. The report, adopted by NACDL's Board of Directors at its recent annual meeting, reflects the significant work of NACDL's Task Force on Federal Indigent Defense and offers "Seven Fundamentals of a Robust Federal Indigent Defense System," which are set forth below.
The Task Force was directed to examine broadly the federal indigent defense system, covering the entire manner in which the federal indigent defense system operates. That said, over the past few years, several troubling developments in the administration of the nation's federal indigent defense system have highlighted its lack of independence. From the severe funding cuts and resulting systemic damage during sequestration in the fall of 2013 to the AO's demotion of the Defender Services Office from a "distinct high-level office" within the AO to its placement as one of the judiciary's many "Program Services," like Probation and Pretrial Services or Judiciary Data and Analysis, to the ways in which the lack of independence has played a key role in preventing federal defenders and panel attorneys from appointment to aid clients as part of a historic clemency effort undertaken by NACDL and others, the report documents the deficiencies of the current system.
The report also focuses the day-to-day adverse consequences of a system that is wholly at odds with the very first principle of the American Bar Association's Ten Principles of a Public Defense Delivery System — "The public defense function, including the selection, funding, and payment of defense counsel, is independent." The report details that many panel lawyers are forced to endure long delays to receive payment for their services and often face arbitrary cuts at the hands of judicial officers whose decisions need not be explained and cannot be challenged. The report also explores concerns regarding the methods by which counsel appointments are made in individual cases, as well as those inherent in appointments to serve on CJA panels, among other matters.
As explained by NACDL President E.G. "Gerry" Morris, "At his confirmation hearing, Chief Justice John Roberts explained that the role of a judge is like an umpire, ‘to call balls and strikes and not to pitch or bat.' This important report reveals that in today's federal indigent defense system, the umpire is doing far more than that. And we all know that umpires should not be deciding how, when, and under what circumstances players get paid or on which team they play."
NACDL Executive Director Norman L. Reimer said: "While there is much to be admired in the federal indigent defense system, its operation — unlike the prosecutorial function — under the structure of the judiciary, together with the seismic events of recent years — sequestration, demotion, and the clemency initiative, make a compelling case for greater independence."
NACDL's Seven Principles of a Robust Federal Indigent Defense System:
- Control over federal indigent defense services must be insulated from judicial interference.
- The federal indigent defense system must be adequately funded.
- Indigent defense counsel must have the requisite expertise to provide representation consistent with the best practices in the legal profession.
- Training for indigent defense counsel must be comprehensive, ongoing, and readily available.
- Decisions regarding vouchers (i.e., payment to panel attorneys) must be made promptly by an entity outside of judicial control.
- The federal indigent defense system must include greater transparency.
- A comprehensive, independent review of the CJA program must address the serious concerns discussed in this report.
Noting federal prison reforms possible without statutory changes
A helpful reader alerted me to this notable Forbes article by Walter Pavlo which highlights ways the federal prison population could be lowered without waiting for whatever Congress might (or still might not) end up doing to reform federal sentencing statutes. The piece is headlined "Prison Reform Is All The Rage, But A Real Opportunity For Change Might Be Missed," and here are excerpts:
Many past U.S. Congress’s have drafted criminal reform bills, only to have them lay dormant in committee. Traditionally, the press releases and sound-bites have only provided false hope to those serving time. The SAFE Act is the most recent and has received some positive press but lacks significant sponsorship in Congress. Then there’s the Smarter Sentencing Act and the Second Chance Reauthorization Act that has recently lost some momentum. There are others, but none worth mentioning....
There are many ways to use existing legislation and policies to reduce populations that need more focus and advocacy. First, we need to allow more old and sick inmates to go home under compassionate release programs by crediting “earned” good conduct time towards program eligibility. Second, rather than building new prisons, the federal government should divert the funding to build out of the Residential Reentry Centers (RRC) infrastructure and allow for more direct community placement designations, which was the true intent of the Second Chance Act under 18 USC 3624. Next, early deportation options should also be explored for those who are in the U.S. illegally.
We have a problem of aging, sick inmates in the federal prison system. There are currently six (6) major medical facilities that offer treatments for inmates for various ailments ranging from dialysis to chemotherapy. It’s expensive with some estimates being as high as $57,000 per year per inmate. The recidivism studies show far lower rates of recidivism for elderly offenders.
Halfway house, RRCs, offer a chance for inmates to serve the remainder of their time in the community working in a regular job, integrating with their family and learning skills. According to [Jack] Donson [a retired BOP employee], the BOP has the statutory authority to place offenders directly in halfway house at any time because the Federal Courts have made clear that RRC’s are penal or correctional facilities within the meaning of the applicable statues. “Having a person in a community correctional treatment program including a job and integrating with their family is far better than any program the BOP could ever offer and inmate.” So an RRC is basically a prison where inmates serve their debt to society … except that it would be MORE beneficial to most everyone....
While we wait for the next prison reform bill, let’s hope it is a comprehensive Omnibus Crime bill with both front end and back end (retroactive) measures that can be quickly implemented with a simultaneous build out of the RRC infrastructure. Congressmen and senators would do us all a service by putting pressure on the Department of Justice to use the existing policies and laws to begin changing prisons now.
September 8, 2015
"The Pointless Banishment of Sex Offenders"
The title of this post is the headline of this New York Times editorial in today's paper. Here are excerpts:
It’s a chilling image: the sex predator skulking in the shadows of a swing set, waiting to snatch a vulnerable child.
Over the past two decades, that scenario has led to a wave of laws around the country restricting where people convicted of sex offenses may live — in many cases, no closer than 2,500 feet from schools, playgrounds, parks or other areas where children gather. In some places, these “predator-free zones” put an entire town or county off limits, sometimes for life, even for those whose offenses had nothing to do with children.
Protecting children from sexual abuse is, of course, a paramount concern. But there is not a single piece of evidence that these laws actually do that. For one thing, the vast majority of child sexual abuse is committed not by strangers but by acquaintances or relatives. And residency laws drive tens of thousands of people to the fringes of society, forcing them to live in motels, out of cars or under bridges. The laws apply to many and sometimes all sex offenders, regardless of whether they were convicted for molesting a child or for public urination.
Lately, judges have been pushing back. So far in 2015, state supreme courts in California, Massachusetts and New York have struck down residency laws.... The United States Supreme Court has not yet weighed in on residency restrictions, although a 2003 ruling upholding mandatory registration for sex offenders suggested that such laws may violate the Constitution.
It is understandable to want to do everything possible to protect children from being abused. But not all people who have been convicted of sex offenses pose a risk to children, if they pose any risk at all . Blanket residency-restriction laws disregard that reality — and the merits of an individualized approach to risk assessment — in favor of a comforting mirage of safety.
Highlighting headwinds for federal sentencing reform in coming critical period
Over at Crime & Consequences, Bill Otis has this extended new post headlined "The Biggest Obstacles Right Now to Sentencing 'Reform'." The post provides a five-point account of recent developments enhancing the (always uphill) battle for significant federal sentencing reform, and here is how the post gets started:
From late spring through about the end of July, it was my sense that some kind of fairly significant sentencing "reform" bill was going to make more headway in this Congress than in the last, and conceivably could pass. More members of the majority party had expressed an openness to it than we had seen in the last Congress.
Probably the first sign of trouble was when the sentencing "reform" bill that had been promised before the August recess never showed up. I expect that one (or several) will show up now, but their content and their prospects for passage seem diminished from what they had been just six weeks ago.
As a former DOJ political appointee, Bill Otis has long been much more of an inside-the-Beltway player than I ever will ever be, and I surmise he still has considerable connections with establishment GOP leaders in Congress. Consequently, his latest prognostications here strike me as important as we all anticipate Senator Charles Grassley unveiling, perhaps as early as today as previewed here, a (big?) new sentencing reform bill that may be the one most likely to have a real chance to get to the President's desk in some form.
Even though Bill's sentencing analysis is sometime subject to sharp criticism (as recently noted here), I think his posts about sentencing reform arguments and prospects alway provide a useful reminder of how many different kinds of political and policy arguments can be made against changing the status-quo of tough-and-tougher sentencing. Most fundamentally, when crime is in decline, Bill and others will be quick to say we should not risk changing what seems to be working; when crime seems to be spiking, Bill and others will be quick to say we should not risk going soft now.
Some prior related posts:
- Julie Stewart of FAMM goes hard after Bill Otis for being "proven wrong time and time again"
- Previewing the latest (and most important) bipartisan federal statutory sentencing reform effort in Congress
- Will Senator Grassley's (still-developing) sentencing reform bill make it to the President's desk in 2015?
- Latest reform news means still more waiting for those eager for federal sentencing reform
- Latest tea leaves concerning Senator Grassley's coming sentencing reform bill
- Senator Grassley again expresses interest in talking about federal criminal justice reform
- In praise of Senator Charles Grassley's advocacy for criminal justice transparency and accountability (and his one blind spot)
- Is major federal sentencing reform possible now that Republicans have full control of Congress?
- Bill Otis provides important (though incomplete) review of the real state of debate over sentencing reform
Two notable new papers about plea bargaining procedures and practices
Practitioners know that the vast majority of criminal convictions are the results of plea deals. But it has taken some time for formal legal jurisprudence and especially legal scholarship to catch up to this reality. Fortunately, a lot of smart folks are starting to pay a lot more attention to plea dynamics, and these two notable new papers on SSRN reflect these realities:
Plea Bargaining's Baselines by Josh Bowers
Abstract: In this symposium essay, I examine the Court’s unwillingness to take seriously the issue of coercion as it applies to plea-bargaining practice. It is not so much that the Court has ignored coercion entirely. Rather, it has framed the inquiry in a legalistic manner that has made immaterial the kinds of considerations we might think most relevant to the evaluation. The Court has refused to ask qualitative questions about felt pressure, prosecutorial motivation, or the risk or reality of excessive punishment. All that matters is legal permissibility. A prosecutor may compel a defendant to plead guilty as long as she uses only code law to do so. In this way, the Court’s coercion baseline is legalistic — it is defined by what the prosecutor is legally entitled to pursue.
Recently, however, the Court has shifted its constitutional focus from code law. In a series of right-to-counsel cases, it has redefined prevailing plea-bargaining practice as the benchmark. This amounts to an emerging extra-legalistic baseline, defined not by code law but rather by the parties’ efforts to circumvent it. Of course, the Court did not mean to alter coercion’s landscape and almost certainly will not do so. My intention is to demonstrate only that the doctrinal building blocks are in place for the adoption of a better baseline — a proportionality baseline. I defend this alternative extra-legalistic baseline and even prescribe a practical methodology for its discovery. And, notably, my preferred approach is not without precedent. The Court has applied analogously extra-legalistic baselines to claims of coercion in other constitutional contexts.
Training for Bargaining by Jenny Roberts and Ronald Wright
Abstract: While plea bargaining dominates the practice of criminal law, preparation for trial remains central to defense attorneys’ training. Negotiation is still peripheral to that training. Defense lawyers enter practice with little exposure to negotiation techniques and strategies in the plea bargaining context, the most significant skills they use every day.
Empirical research on plea negotiations has concentrated on outcomes of negotiations rather than the process itself. Our multi-phase field study examines the negotiation techniques that attorneys use during plea bargaining, as well as their preparation and training for negotiation. This Article explores the data on the training aspects of our research. It then discusses implications of the failure to train for bargaining by noting a variety of areas where training might improve case outcomes for defendants.
Surveys, interviews, and training agenda confirm our intuition about the lack of training for bargaining: Public defenders receive far less training in negotiation skills and strategies than they do in trial techniques. Some defenders receive some limited training on negotiation skills in addition to trial skills, particularly when they first enter their offices. The topic of negotiation, however, almost disappears from the agenda for later training, even as trial skills remain front and center.
Leaders in public defender offices allow this training gap to continue when they view negotiation as more an art than a science, and not susceptible to rigorous analysis or systematic training. The position that negotiation cannot be taught is demonstrably false and theoretically naïve. Formal negotiation learning has proven effective in actual negotiations. Negotiation theory also offers more concrete and comprehensive insights about sound practices than one can find in case law related to constitutional ineffective assistance of counsel, court rules and state statutes, or professional standards.
September 7, 2015
Lots of interesting criminal-justice reading for the long weekend
As I enjoy the tail end of a lovely holiday weekend, I will seek to honor laborers by here labroing to assemble links to a number of recent criminal-justice articles and commentaries from various media outlets. Each of these pieces could merit its own separate post, but I am content today to throw them all together (in no particular order) with a hope that readers might flag whichever of the pieces they think justify special attention:
"The New Peonage"
The title of this post is the title of this notable new article by Tamar Birckhead now available via SSRN. Here is the abstract:
Although the Thirteenth Amendment to the U.S. Constitution formally abolished slavery and involuntary servitude in 1865, the text created an exception for the punishment for crimes “whereof the party shall have been duly convicted.” Two years later, Congress passed The Anti-Peonage Act in an attempt to prohibit the practice of coerced labor for debt. Yet, in the wake of the Civil War, Southern states innovated ways to impose peonage but avoid violations of the law, including criminal surety statutes that allowed employers to pay the court fines for indigent misdemeanants charged with minor offenses, in exchange for a commitment to work. Surplus from these payments padded public coffers (as well as the pockets of court officials), and when workers’ debt records were subsequently “lost” or there was an allegation of breach, surety contracts were extended and workers became further indebted to local planters and merchants. Several decades later, the U.S. Supreme Court in Bailey v. Alabama (1911) and U.S. v. Reynolds (1914) invalidated laws criminalizing simple contractual breaches, which Southern states had used to skirt the general provisions of the Anti-Peonage Act. Yet, these decisions ultimately had little impact on the “ever-turning wheel of servitude,” and the practice persisted under alternative forms until after World War II.
This Article, the Author’s third on the disproportionate representation of low-income children in the U.S. juvenile justice system, examines the phenomenon of what the Author calls “the new peonage.” It argues that the reconfiguration of the South’s judicial system after the Civil War, which entrapped blacks in a perpetual cycle of coerced labor, has direct parallels to the two-tiered system of justice that exists in our juvenile and criminal courtrooms of today. Across the U.S. even seemingly minor criminal charges trigger an array of fees, court costs, and assessments that can create insurmountable debt burdens for already-struggling families. Likewise, parents who fall behind on their child support payments face the risk of incarceration, and upon release from jail, they must pay off the arrears that accrued, which hinders the process of reentry. Compounding such scenarios, criminal justice debt can lead to driver’s license suspension, bank account or wage garnishment, extended supervision until debts are paid, additional court appearances or warrants related to debt collection and nonpayment, and extra fines and interest for late payment. When low-income parents face such collateral consequences, the very act of meeting the economic and emotional needs of one’s children becomes a formidable challenge, the failure of which can trigger the intervention of Child Protective Services, potential neglect allegations, and further court hearings and fees. For youth in the juvenile court system, mandatory fees impose a burden that increases the risk of recidivism. In short, for families caught within the state’s debt-enforcement regime, the threat of punishment is an ever-present specter, and incarceration always looms. Ironically, rather than having court fees serve as a straightforward revenue source for the state, this hidden regressive tax requires an extensive infrastructure to turn court and correctional officials into collection agents, burdening the system and interfering with the proper administration of justice. Moreover, states frequently divert court fees and assessments to projects that have little connection to the judicial system.
This Article is the first to analyze the ways in which the contemporary justice tax has the same societal impact as post-Civil War peonage: both function to maintain an economic caste system. The Article opens with two case profiles to illustrate the legal analysis in narrative form, followed by several others presented throughout the piece. The Article then chronicles the legal history of peonage from the passage of the Thirteenth Amendment through the early twentieth century. It establishes the parallels to the present-day criminal justice system, in which courts incarcerate or re-incarcerate those who cannot pay, including juveniles. It argues that Supreme Court decisions intended to end the use of debtors’ prisons ultimately had limited impact. The Article concludes with proposals for legislative and public policy reform of the new peonage, including data collection and impact analysis of fines, restitution, and user fees; ending incarceration and extended supervision for non-willful failure to pay; and establishing the right to counsel in nonpayment hearings.
September 7, 2015 in Collateral consequences, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (3)
September 6, 2015
Ohio queue of condemned keeps growing as state struggles with its death machinery
This new AP article, headlined "Ohio Death Row Quandary: 2 Dozen Executions, No Lethal Drugs," highlights the distinctive problem Ohio now has with the administration of capital punishment. Here are the details:
The state now has two dozen condemned killers with firm execution dates, but with four months before the first one, it still doesn't have the lethal drugs it needs to carry them out. The state's inability to find drugs has death penalty opponents calling for the end of capital punishment in Ohio. Supporters say the state needs to keep looking or find alternatives to provide justice for killings that are in some cases decades old.
"Rather than frustrate that process it would seem to me their goal ought to be to carry out that process," said Franklin County Prosecutor Ron O'Brien, who's contacted the prisons department, the attorney general and the governor's office for updates on their progress finding drugs. One option he'd like Ohio to consider: nitrogen gas, approved by Oklahoma in April as an execution alternative.
On Jan. 21, the state is scheduled to execute Ronald Phillips for raping and killing his girlfriend's 3-year-old daughter in Akron in 1993. The Department of Rehabilitation and Correction "continues to seek all legal means to obtain the drugs necessary to carry out court-ordered executions," said spokeswoman JoEllen Smith, using the same statement the agency has offered for months. "This process has included multiple options."
On Wednesday, the Ohio Supreme Court set a March 2017 date for Gary Otte of Cleveland for the shooting deaths of two people in a 1992 robbery spree. The remaining executions are scheduled clear into 2019.
The state hasn't executed anyone since January 2014, when condemned killer Dennis McGuire gasped and snorted repeatedly during a 26-minute procedure with a then untried two-drug method. Ohio abandoned that method in favor of other drugs it now can't find. Like other states, Ohio has struggled to obtain drugs as pharmaceutical companies discontinued the medications traditionally used by states or put them off limits for executions.
The state's latest attempt, to obtain a federal import license to buy drugs from overseas, ran into a roadblock when the FDA informed Ohio such actions are illegal because the drugs in question aren't FDA-approved.
That's the kind of thing that happens when dates are set without drugs on hand, said Tim Young, the state public defender. "That continual setting of dates seems to bring to bear unfortunate pressure to drive the choices with untested drugs, untested processes," he said.
Gov. John Kasich said other states won't give Ohio their drugs and lawsuits may tie up attempts to import approved drugs. But he said there's still time before the January execution. "I want to continue forward with the death penalty, but if I don't have the drugs it becomes very difficult," Kasich said.
Ohio appears to have the most killers with execution dates because of the state's system for scheduling them. Texas, which still leads the nation in the number of executions annually, sets dates a maximum of 90 days out. Missouri, which has a similar system, has a maximum 60-day window which extends up to 120 days next year.
Digging deeply into the back-end of criminal justice systems
Regular readers are accustomed to seeing my praise in this space for Margaret Love's commentary about the federal clemency process and for the commentary and coverage of a range of back-end criminal justice issues at the Collateral Consequences Resource Center. These new posts at CCRC provide yet more support for my view that any and everyone interested in the so-called "back-end" of American criminal justice systems should be reading everything Margaret Love has to say and all the posts at CCRC:
Connecticut prosecutors seek reconsideration of retroactive abolition of death sentences
This Reuters article, headlined "Prosecutors seek to re-argue case that ended Connecticut death penalty," reports on a notable (and seemingly long-shot) motion filed late last week in the Connecticut Supreme Court. Here are the details:
Connecticut prosecutors asked the state Supreme Court on Friday to reconsider its recent decision on a narrow vote to end the state's death penalty, a clerk for the state Supreme Court said.
Prosecutors late Friday filed a motion asking the justices to allow them to re-argue the case in which justices called the death penalty cruel and unusual punishment and concluded that it "no longer comports with contemporary standards of decency." The ruling, on a 4-3 vote, added Connecticut to the growing list of states backing away from the death penalty, including Nebraska and Maryland most recently. Thirty-one states have the death penalty.
Prosecutors on Friday also asked the court to strike from the record a concurring opinion about racial bias in capital cases they said was barred as merely advisory, the clerk said. In the opinion, Justices Flemming Norcott and Andrew McDonald wrote that racial and ethnic discrimination had "permeated the breadth of this state's experience with capital charging and sentencing decisions."
Prosecutors want to present new arguments in response to the majority opinions, including the rarity of executions in Connecticut, the delay in imposing death sentences and the danger of executing the innocent, the clerk said.
"The Division of Criminal Justice recognizes the complex legal and policy issues that the court confronted in this crucially important case," Chief State's Attorney Kevin Kane wrote in the motion. "The process that the majority followed in reaching its conclusion deprived the division of the opportunity to address the concerns that drove the results and led the majority unaided by the time-tested adversarial process to inaccurate assumptions and errors of law," he wrote....
Connecticut in 2012 abolished capital punishment for future crimes but allowed the death penalty to be imposed for crimes previously committed. The current debate leaves 11 death row inmates in limbo.
I would guess that these sorts of motions for reargument in the Connecticut Supreme Court are almost never granted. But, as long-time readers know, death penalty cases can and often lead to some unusual legal developments.
Prior related posts:
- Connecticut Supreme Court follows legislature's prospective DP repeal with retrospective state consitutional abolition
- Connecticut Supreme Court retroactive abolition of death sentences prompting prosepctive perspectives