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October 10, 2015

Should GOP Prez candidates be questioned on why being pro-life and anti-government doesn't lead to death penalty opposition?

The question in the title of this post is prompted by this The Week commentary authored by Bonnie Kristin and headlined "The rise of the anti-death penalty conservative." Here are excerpts:

[P]rotesting abortion is not all the consistent pro-life ethic entails.  As typically expressed, most often in Catholic circles, consistent defense of human life in all its forms also requires opposition to the death penalty and assisted suicide (as well as any involuntary form of euthanasia).

"Life is something that comes from God and shouldn't be taken away by man," explains Father Thomas Reese, a Jesuit priest.  Those with a consistent pro-life ethic "are concerned about a person from womb to tomb."  For all Christians, consistent pro-lifers argue, "Something is definitely wrong when we claim to follow a man who halted an execution (John 8:1–11) and then was unjustly executed by the state, but still prefer justice over mercy."...

[T]here are some conservatives for whom capital punishment is already a pressing issue. "For those of us who are pro-life and maintain the far-from-radical notion that our government shouldn't kill innocent Americans, the death penalty fails to live up to our standards," argues Marc Hyden of Conservatives Concerned About The Death Penalty (CCATDP), a nonprofit that exists to question "a system marked by inefficiency, inequity, and inaccuracy."

And marked by these difficulties it most certainly is.  As CCATDP enumerates, the problems and perils of capital punishment in modern America are many.  There's the risk — as in the Glossip case and too many others, like Marlon Howell or Cameron Todd Willingham — of accidentally killing an innocent person.   More than 150 people sentenced to die in America have been exonerated in the last four decades, some after spending 30 years or more on death row.

Beyond that, the death penalty is exorbitantly expensive for taxpayers — as much as 10 times more expensive than a life sentence by some calculations.  The lengthy process drags out the grief of murder victims' families, endlessly resuscitating it with a new appeal or evidence.  And there's no evidence that the threat of death deters crime.  Furthermore, capital punishment is implemented in a systemically unfair manner: Factors like where you live, your race and the race of your alleged victim, and even whether your judge is elected or appointed can all influence whether you're sentenced to prison or death.

With inequities like these, Hyden argues, there's nothing "limited or wise about giving an error-prone government the power to kill its citizens, especially when many of us don't trust the state to even deliver mail."

In spite of the evidence that — as conservatives tend to agree in other policy arenas — the government is neither competent nor trustworthy, polling suggests that CCATDP is still in the minority on the right: Only 11 percent of Americans oppose both abortion and the death penalty. There is "no significant correlation between attitudes about the legality of abortion and views on capital punishment," according to Robert P. Jones of OnFaith, and if we zoom in on Tea Partiers, support for a consistent pro-life ethic drops to just 7 percent.

So in 2016, Republican debate moderators looking for a tough but thoughtful question to add to their list should consider question grilling presidential contenders on the death penalty.  Thanks to the Planned Parenthood footage — not to mention the cross-partisan popularity of the broader cause of criminal justice reform, as well as the consistently pro-life Pope Francis — the timing is good.  And thanks to the clear discrepancies between opposition to big government handing out a license to kill, on the one hand, and support for the death penalty on the other, the chance to catch candidates in hypocrisy is pretty good, too.

Some prior related posts:

October 10, 2015 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Elections and sentencing issues in political debates, Purposes of Punishment and Sentencing | Permalink | Comments (9)

Via the National Review, an unintended parody of various arguments against modest federal sentencing reform

Tumblr_mr31fpWYLB1qzpxx1o1_500I generally respect and benefit form the work Bill Otis does over at Crime & Consequences criticizing sentencing reform movements because, despite sometimes overheated rhetoric, he generally uses sound data and reasonable aguments to make out the best case in defense of the modern federal sentencing status quo.  Though I think Bill is often wrong on the merits, especially with respect to federal statutory sentencing reform issues, he is justifiably seen as an important voice in the public-policy debate because he regularly makes responsible and sober claims in support of his various positions.

I bring all this up as a prelude to spotlighting this notable new National Review commentary by Andrew McCarthy, headlined "Keep Minimum Sentencing, to Discourage Criminals." This lengthy piece, in my view, reads almost like a parody (unintentionally, I assume) of many arguments against federal sentencing reform that Bill and some other prosecutors make much more soundly in other settings. Here are some few passages from the piece that strike me as especially cringe-worthy:

Young Americans for whom the Reagan administration is ancient history, New Yorkers who grew up in the post-Giuliani City — they have no memory of what it was like from the Sixties into the early Eighties. For them, the revolution in crime-fighting that so dramatically improved the quality of American life is not revolutionary. It is simply ... life. There is nothing hard-won about it. It is not informed by the dark days when rampant crime was fueled by a criminal-rights campaign premised on many of the same loopy ideas that undergird Washington’s latest fetish, “sentencing reform.”

The worst of those ideas is to roll back “mandatory minimum” sentences. These are terms of imprisonment, often harsh ones, that must be imposed for serious crimes. Mandatory minimums tie the hands of judges, mandating that they take hard criminals off the streets rather than slap them on the wrists. Before the Reagan era, federal penal laws prescribed potentially severe sentences for serious offenses ...[but a] judge was also free to impose the minimum sentence of no time whatsoever. What punishment to impose within that expansive statutory range from zero to 50 years was wholly the judge’s call. In effect, this nearly boundless discretion transferred control over punishment for crime from the public to the courts.

Federal judges tend to be very good at the difficult job they are trained to do: apply law, which is frequently arcane and sometimes inconsistent, to factual situations, which have their own complexities. This skill, however, does not necessarily translate into expertise in making punitive judgments that are governed less by legal rules than gut feeling — gut feeling being what controls broad discretion....

Even if many judges were not instinctively sympathetic to arguments in favor of harsh sentencing, sympathy comes with the institutional territory. The judge’s duty is not to promote public safety; it is to ensure that parties before the court receive justice. It is a bedrock conceit of those who toil in the justice system that the public perception of justice is just as vital as the objective reality of justice. Thus, the judge has great incentive to bend over backward to give convicted defendants every bounce of the due-process ball.

It is a lot easier to call for a harsh sentence from the peanut gallery than to be the judge who has to impose a sentence after a desperate plea for leniency has been made and while the defendant’s mother, wife, and kids weep in the first row. So whether the pressures were ideological, institutional, or rooted in human nature, judges were often weak sentencers. That weakness translated into the inadvertent promotion of crime by failing to disincentivize it and failing to sideline career criminals. Mandatory minimums were thus enacted by overwhelming congressional margins in order to divest judges of the discretion to impose little or no jail time for serious crimes and habitual criminals.

It is the latest Beltway fashion to demand that mandatory minimums be rolled back, if not repealed, on the theory that incarceration causes rather than drastically reduces crime. Or, since that claim doesn’t pass the laugh test, on the theory that incarceration is racist — the great American conversation ender. Beyond the in terrorem effect of the racism smear, the latter rationale relies on the overrepresentation of minorities, particularly blacks and illegal aliens, in the prison population — and banks on your being too cowed to bring up the overrepresentation of minority communities in the crime-victim population.

Alas, a “reform” that reduces mandatory minimums will benefit only one class of people — serious felons who commit many more crimes than they are prosecuted for. And racism? Please. We have, to take one pertinent example, a harsh mandatory minimum sentence for predators who are convicted of a felony after having previously being convicted of three other serious crimes. Congress wasn’t targeting race; it was targeting sociopaths.

Understand, I am not contending that the criminal-justice system is without flaws badly in need of correction. But the main problem is not severe sentencing. It is over-criminalization.

Too much formerly innocent private conduct has become prohibited, making criminals out of essentially law-abiding people. Law is supposed to be a reflection of society’s values, not a tool by which society is coerced to transform its values. Moreover, when the statutes, rules, and regulations proliferate to the point that it becomes unreasonable to expect average people to know what is forbidden, we no longer have a nation of laws; we have a nation of men arbitrarily deciding which of the presumptively guilty get punished and which go unscathed.

If a problem is not accurately diagnosed, it will not be cured. There is a prescription for what ails us, but it is most certainly not a repeal of the severe sentences enacted to address serious crime. Nothing that rewards real criminals at the expense of the people they victimize should trade under the name of “reform.”

I share the closing sentiment that a problem need to be accurately diagnosed to be solved. But there are so many problems in the arguments before that sentiment, I almost feel unable to unpack them all in the space. What I find especially peculiar are the suggestions here that sound sentencing is necessarily only about "gut feeling," that it is problematic judges consider "every bounce of the due-process ball," and that sentencing would be better if more attentive to every "call for a harsh sentence from the peanut gallery." Also remarkable is the suggestion that any and everyone subject to an existing federal mandatory minimum is a "sociopath" that must be subject to severe punishment because surely they have committed "many more crimes than they are prosecuted for."

All these curious contentions aside, I find it especially remarkable how McCarthy concludes after saying nothing is wrong with the harsh mandatory drug and gun sentences created in recent decades by Congress and applied (inconsistently) by federal prosecutors. He says the "main" problem is other federal criminal laws created in recent decades by Congress and applied (inconsistently) by federal prosecutors which creates, so he claims, a "nation of men arbitrarily deciding which of the presumptively guilty get punished and which go unscathed." In other words, it seems, when it comes to imposing punishment for crimes, we should continue to distrust modern judges and trust old mandatory sentencing laws created by Congress in the 1980s, but when it comes to defining what is a crime, we should not trust Congress because somehow they enact criminal laws (but not "severe sentences") that are not really "a reflection of society’s values."

I trust I am not the only one who see how backward a lot of what is being said here. But apparently the folks at the National Review see reasonable logic or some kind of wisdom here that perhaps requires spending more time in the Beltway to understand. Or maybe I just need to go re-watch Breaking Bad, which NR has extolled, so I can better understand the "sociopaths" federal judges cannot be trusted to sentence properly because they have the wrong "gut feeling" while concerned with "every bounce of the due-process ball."

October 10, 2015 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics, Who Sentences? | Permalink | Comments (4)

October 9, 2015

In defense of Ohio officials trying to figure out how to get execution drugs legally

This new AP story, headlined "Ohio Challenges FDA's Stand on Execution Drug," provides more details and context for the notable letter sent today by Ohio officials to the FDA (first reported here). Here are excerpts (with my bold emphasis):

With two dozen scheduled executions in limbo, Ohio sent a forceful letter to Washington on Friday asserting that the state believes it can obtain a lethal-injection drug from overseas without violating any laws.

The letter to the Food and Drug Administration stopped short of suggesting Ohio is moving forward to obtain the powerful anesthetic sodium thiopental. However, the state asked to begin discussing with federal officials about acquiring the substance legally.

The FDA had warned Ohio in June that importing the restricted drug could be illegal as a result of recent federal court decisions, setting up the latest roadblock to carrying out the death penalty.

Ohio hasn't executed anyone since January 2014, when condemned killer Dennis McGuire gasped and snorted repeatedly during a 26-minute procedure with a two-drug method that had yet to be tried. Ohio abandoned that method in favor of other drugs it now can't find.

Pharmaceutical companies have discontinued the medications traditionally used by states in executions or put them off limits for use in lethal injections. Stephen Gray, chief counsel for the Ohio Department of Rehabilitation & Correction, said the state has no intention of violating the law to obtain such drugs — but "the responsibility to carry out lawful and humane executions when called upon by the courts to do so is enormous, and it is a responsibility that ODRC does not take lightly."

Death penalty opponents have seized on trouble with lethal injections, as in McGuire's case, and difficulty in obtaining drugs as further justification for ending it.  Supporters of capital punishment encourage states to continue to pursue legal avenues for getting the drugs — or find alternatives — so that condemned killers can be brought to justice.

Ohio's latest correspondence comes as the state is set to resume executions in a little over three months. The state is scheduled to execute Ronald Phillips on Jan. 21 for raping and killing his girlfriend's 3-year-old daughter in 1993. Another 23 executions have been scheduled into 2019.

In part because I know and respect, both professional and personally, a number of Ohio executive officials, I have highlighted parts of the story above that I suspect may have led many of them to feel duty-bound to explain to FDA why Ohio thinks it legally could (and perhaps sensibly should) seek to import lethal injection drugs.  Ohio has a long (and sometimes ugly) history with its lethal injection protocols, but Ohio officials have always seemed (at least to me) to be willing and eager to make reasonable efforts to adjust its execution protocols in order to try to carry out lawful death sentences in the most humane way possible.  I perceive that an effort to find a legal way to import sodium thiopental is another example of Ohio officials making this effort.

Of course, opponents of the death penalty are often quick to say that no execution is humane and that Ohio's troubles with executions protocols and drug acquisition provide further reasons for the state to get entirely out of the capital business.  Ironically, I suspect many Ohio executive officials personally share this perspective, especially because their jobs would surely get easier if they did not have to worry about the next scheduled execution (or the 23 others right behind it).  But all executive officials, short of perhaps Ohio Gov John Kasich, are duty-bound to apply the existing law enacted by Ohio's elected representatives, not the law as would serve their own personal interests.  (Indeed, in neighboring Kentucky, Kim Davis recently highlighted the ugliness that can ensure when executive officials seek to elevate personal law over the actual law.)  

Consequently, unless and until the Ohio General Assembly repeals the death penalty or Gov Kasch uses his clemency authority to create an execution moratorium, it strikes me as defensible (and arguably obligatory) for Ohio executive officials to look to secure drugs needed for execution by any and all lawful means.  And it will now be especially interesting to see if FDA official will be willing and able to work with Ohio officials to help the state lawfully secure execution drugs (assuming, as I think all should, that this is what Ohio would like to be able to do).

Prior related post:

October 9, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (13)

Ohio tells FDA it can be legal to import sodium thiopental to carry out death sentences

In this post a few months ago, I reported on a letter sent by the US Food and Drug Administration (FDA) to the head of the Ohio Department of Rehabilitation Correction (ODRC) expressing concern that Ohio might be trying to import illegally the drug it needed to carry out scheduled executions.  Now I can report on an interesting official response sent today from ODRC back to FDA.  In a four-page letter, ODRC provides an extended explanation for how, in Ohio's view, it could be legal for it to import certain drugs needed to carry out executions.

The full letter from ODRC to FDA, which is available for downloading below, merits a careful read by anyone closely following the challenges many states are having securing needed drugs for executions.  As a kind of summary, here is how the ODRC letter starts and concludes:

Your June 26, 2015 letter to Director of the Ohio Department of Rehabilitation and Correction (ODRC), Gary Mohr, referenced some unspecified information you had received about Ohio's "inten[t] to obtain bulk and finished dosage forms of sodium thiopental." Based on this information, you referenced two federal court decisions, Beaty v. FDA, 853 F. Supp. 2d 30 (D.D.C. 2012) and Cook v. FDA, 733 F.3d 1(D.C. Cir. 2013), and sought to "remind [Ohio] of the applicable legal framework" for importation of sodium thiopental. Contrary to the implication in your letter that the importation of sodium thiopental is currently prohibited, there is a legal framework for a state, if it so chooses, to import sodium thiopental in accordance with both the federal Food, Drug, and Cosmetic Act (FDCA) and the June 2012 Court Order issued by Judge Leon in Beaty. Further, please be advised that if at some point in the future the State of Ohio should choose to pursue the importation of sodium thiopental or any other drug that may be used to carry out a sentence of lethal injection, Ohio has no intention of breaking any federal laws or violating any court orders in an attempt to procure the legal drugs necessary to carry out constitutionally approved and court-ordered death sentences....

Given the specific facts and parameters of those [above-referenced] decisions, it is clear that importation of sodium thiopental is not completely prohibited by Judge Leon's 2012 Orders.  That is, importation of sodium thiopental is not prohibited provided that [five key conditions are met]....

Thus, we believe that if a state were to attempt to import sodium thiopental under these five conditions, then the specific terms of the Beaty injunction would not apply.  In other words, the FDA would not be permanently enjoined from permitting that shipment into the United States, and that it would be lawful and permissible for a state to proceed with such lawful importation.

The responsibility to carry out lawful and humane executions when called upon by the courts to do so is enormous, and it is a responsibility that ODRC does not take lightly.  To that end, ODRC has no intention of attempting to procure drugs for lethal injection in a manner that would violate a proper interpretation of the FDCA.  And, as the federal agency tasked with enforcing the FDCA and subject to the Court Order in Beaty, we would be happy to begin a dialog with the FDA as to how best achieve this goal.

Download DRC to FDA 9 Oct 2015

Prior related post:

October 9, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Lots of interesting and notable pieces this week from The Marshall Project

Regular readers are likely tired of my regular recommendation of the work being done at The Marshall Project.  But this array of notable original pieces from just this past week reinforces why the site it is on my daily-must-read list:

October 9, 2015 in Prisons and prisoners, Recommended reading | Permalink | Comments (0)

"The Supreme Court’s Johnson v. United States Ruling: A Vagueness Doctrine Revolution?"

The title of this post is the title of this helpful "Legal Backgrounder" coming from the Washington Legal Foundation and authored by David Debold and Rachel Mondl. Here are a couple of paragraphs from the start and end of the reader-friendly piece:

Apart from the direct effect of Johnson on ACCA sentences, the decision marks an important step in the Court’s vagueness jurisprudence.  Also not to be overlooked is Justice Thomas’s concurrence, which likened the vagueness doctrine to the much-maligned concept of substantive due process, thus raising questions about the legitimacy of a vagueness doctrine in the first place.  In the end, though, the debate over the legitimacy of substantive-due-process rights should have no bearing on the Court’s void-for-vagueness precedents, because vague laws offend traditional notions of procedural due process — that is, the process by which the government may deprive a person of life, liberty, or property....

More than an opinion on mandatory-minimum sentences, Johnson provides a welcome clarification of the law on unconstitutional vagueness.  Yet it remains to be seen how far-reaching the decision will be.  The majority opinion widens the opportunities for challenges to laws where previous challenges would not have been possible under a vague-in-all-applications regime.  Time will tell whether more of those challenges will succeed, or, instead, whether Johnson is relegated to “unique” status, its result ordained by the profound and repeated inability of the Supreme Court and courts of appeals to craft a principled, workable standard for applying a peculiar type ofstatute.  One thing is certain: Johnson will not be the last word on the vagueness doctrine.

October 9, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (1)

Highlighting who is now highlighting the inefficacy of sex offender registries

This new local Ohio article, headlined "Sex offender registries draw criticism from some unlikely sources," spotlights that some perhaps unexpected voices are advocating against sex offender registries. Here are excertps (with links from the source):

You might think that all advocates for rape victims would support the practice of forcing sex offenders to publicly register their addresses after their release from prison. But you would be mistaken.

Growing numbers of victim advocates and criminal justice researchers are among those who have concluded that sex offender registries are too costly and provide little or no protection to the public.  "The registry gives the appearance that our community is safer, but we really question whether it lives up to that expectation," said Sondra Miller, president of the Cleveland Rape Crisis Center....

It's not surprising that defense attorneys oppose the registries, but therapists and victim's advocates also are among those calling for change.

"The biggest frustration we have with the registry is it feeds into the myths that the general public has about sexual assault," Miller said.  "It feeds this stranger-danger mentality when we know it's such a small fraction of the sexual assaults that occur in our community."  Miller said the registries give people a "false sense of security" that sex offenders can be easily identified and avoided, when that's not the case. 

Tyffani Dent, a clinical director at the Abraxas Counseling Center and a psychologist who works with both victims and offenders, said registries spread law enforcement too thin. Deputies have to check in not only on repeat, violent offenders but also teenagers who sent illicit text messages to their girlfriends, and who pose little threat to their neighbors.   "I want for victims to get justice," she said. "Unfortunately, registration the way it is now doesn't do what it's designed to do."

Several large-scale studies have shown that registries don't do much to prevent criminals from committing new crimes.

  • A 2008 U.S. Department of Justice study concluded that "Megan's Law showed no demonstrable effect in reducing sexual re-offenses."
  • A 2011 study from the University of Chicago found that "registered sex offenders have higher rates of recidivism" than those who did not have to register.
  • Another study published in 2011 found that a registration requirement has a deterrent effect on sexual offenders, but the notification aspect of the registries leads to higher rates of offense because of the social and financial costs to the offender. 
  • A 2004 Canadian study found that "after 15 years, 73 percent of sexual offenders had not been charged with, or convicted of, another sexual offense."

Dent doesn't think the registry system should be abandoned entirely.  Instead, she favors registering only the most dangerous offenders.  That would free up resources for preventative measures and treatment, such as mental health therapy, which Dent said has been proven to reduce recidivism.   In particular, Dent said cognitive behavioral therapies, which address the way people think and behave, have been proven to reduce recidivism among sex offenders.... 

Miller ... noted that victim's services and treatment programs are both underfunded, and could use some of the more than half a million dollars Cuyahoga County spends maintaining its registry.  "It really is a question of where do we put our resources where we're going to have the maximum impact and I'm not sure the sex offender registry is where we're getting the most impact," Miller said.

This companion story to the one quoted above carries the headline "Sex offender says registry amounts to punishment for life." Here is how it starts:

Nearly three decades ago, Emil Basista was convicted of raping a 33-year-old woman. While serving time in prison, he was retroactively labeled as a sexual predator, a designation that requires him to report where he lives every 90 days to the sheriff's department. Basista, 66, is one of several thousand Ohioans who have tried to challenge the state's sexual offender registration requirements, contending that the publicly accessible registries amount to life-long punishment.

October 9, 2015 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)

October 8, 2015

Oops: "Oklahoma used wrong drug in January execution, autopsy report shows"

The title of this post is the headline of this article (with a little extra commentary) from The Christian Science Monitor. Here are the details:

The wrong lethal injection drug was used in an Oklahoma execution in January, an autopsy report obtained by an Oklahoma newspaper shows. The Oklahoman reported Thursday that potassium acetate, instead of potassium chloride as required under the state's protocol, was the final drug administered to stop Charles Frederick Warner's heart during his Jan. 15 execution.

Mr. Warner, convicted of the rape and murder of an 11-month-old in 1997, is the last murderer to be executed at the Oklahoma State Penitentiary in McAlester. His punishment was carried out almost nine months after the execution of murderer Clayton Lockett, whose botched execution triggered an investigation into the combination of drugs used that went all the way up to the Supreme Court on the grounds of Eighth Amendment rights infringement -- that is, whether or not Oklahoma failed to protect Mr. Lockett from “cruel and unusual” punishment....

The same incorrect drug found in Warner’s autopsy report were delivered to corrections officials Sept. 30 for the scheduled execution of another convicted murderer, Richard Glossip.  After learning of the mistake, Oklahoma Gov. Mary Fallin granted a last-minute stay and postponed off the executions of two additional death row inmates.

An investigation into the circumstances surrounding Warner's execution was announced by Attorney General Scott Pruitt shortly after.  On Wednesday, Mr. Pruitt said the investigation will cover any previous drug mistake, The Oklahoman reports.

“I want to assure the public that our investigation will be full, fair, and complete and includes not only actions on Sept. 30, but any and all actions prior, relevant to the use of potassium acetate and potassium chloride,” Pruitt said.

Governor Fallin said Wednesday night she supports further inquiry into Warner's execution, and told the newspaper it “became apparent” on Sept. 30 when Glossip’s execution was delayed that a similar mix-up may have occurred in Warner’s case....

“It is imperative that the attorney general obtain the information he needs to make sure justice is served competently and fairly,” Fallin said in an email to The Oklahoman. “Until we have complete confidence in the system, we will delay any further executions.”

She said she and the attorney general delayed Glossip's execution as a precaution, despite the doctor and the pharmacist working with corrections officials agreeing that potassium chloride and potassium acetate are medically interchangeable. “The active ingredient is potassium, which, when injected in large quantities, stops the heart,” the governor said.

She said “it became apparent” during the discussions Sept. 30 about a delay that the Corrections Department may have used potassium acetate in Warner's execution. “I was not aware nor was anyone in my office aware of that possibility until the day of Richard Glossip's scheduled execution,” she said. On Tuesday, Fallin said she has hired an outside attorney “to look at the whole process” and provide oversight.

October 8, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (20)

Basic elements of House's Sentencing Reform Act of 2015

As noted in this prior post, a bipartisan group of Respresentatives today introduced a version of sentencing reform in the form of this 18-page bill called the Sentencing Reform Act. This press release from the House Judiciary Committee provides this introduction:

The Sentencing Reform Act of 2015 reduces certain mandatory minimums for drug offenses, reduces the three-strike mandatory life sentence to 25 years, broadens the existing safety valve for low-level drug offenders, and provides judges with greater discretion in determining appropriate sentences while ensuring that serious violent felons do not get out early. The bill also contains sentencing enhancements for Fentanyl trafficking, a highly addictive and deadly drug that is becoming a growing epidemic in the United States.

The Sentencing Reform Act of 2015 is the first bill that is a result of the House Judiciary Committee’s criminal justice reform initiative. The Committee continues to work on additional bills that address other aspects of our criminal justice system, including over-criminalization, prison and reentry reform – including youth and juvenile justice issues – improved criminal procedures and policing strategies, and civil asset forfeiture reform. The Committee will roll out more bills addressing these topics over the coming weeks.

The press release also includes quotes from various House members and has links to a "one-pager on the Sentencing Reform Act [that] can be found here and section-by-section [that] can be found here."

October 8, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

What major federal criminal justice reform now gets 90% support in key swing states?

In this post and others at Crime & Consequences, Bill Otis rightly notes that relatively little objective polling has focused on the array of federal sentencing and correction reforms that are being actively proposed and promoted now by many leaders in the US Senate and House.  Like Bill, I would like to see the media and other independent groups conduct polling on some key aspects of federal drug sentencing and broader rehabilitation-oriented prison reform proposals now being considered on Capitol Hill.

Critically, though, thanks largely to voter-initiated, state-level reforms over the last few years, we are starting to see a lot more media and other independent groups conduct polling on one particular aspect of the federal criminal justice system: blanket marijuana prohibition and criminalization.  The latest polling numbers in this space come from the independent Quinnipiac University Poll, and it finds remarkably high public support for ending marijuana prohibition in swing states in order to allow adults "to legally use marijuana for medical purposes if their doctor prescribes it."  This Quinnipiac press release about its poll places emphasis on closely-divided (and gender/age-distinctive) views on recreational marijuana reform, but I find the medical marijuana poll numbers most remarkable and important. Here are excerpts from the press release (with my emphasis added):

"If men are from Mars and women are from Venus, then the Red Planet might be the more spacey place. That's because men are more likely than women to support legalization of marijuana for recreational use," said Peter A. Brown, assistant director of the Quinnipiac University Poll. "Not surprisingly support for the change is linked to age, with younger voters more likely to see personal use of pot as a good thing."

"But despite the support for legalization, a majority of voters in Florida, Ohio and Pennsylvania say they would not use the drug if it were legal," Brown added. "Only about one in 10 voters opposes legalizing marijuana for medical purposes." ...

Florida voters support legalizing personal marijuana use 51 - 45 percent.... Voters support legalizing medical marijuana 87 - 12 percent....

Ohio voters support legalizing personal marijuana use 53 - 44 percent.... Voters support legalized medical marijuana use 90 - 9 percent.

Pennsylvania voters are divided on legalizing personal marijuana use, with 47 percent in favor and 49 percent opposed.... Voters support legalizing medical marijuana 90 - 9 percent.

Among other stories, these latest poll numbers reinforce my concern that federal laws and our federal political leaders (including, it seems, most of the candidates running to be our next President) are badly out of touch with public views on marijuana reform. Even in these purple swing states, roughly 90% (!) of those polled say, in essence, that they do not support blanket marijuana prohibition and criminalization, and yet blanket marijuana prohibition persists in federal law and precious few elected federal office holders (or those seeking to be elected office holders) are willing even to talk about seeking to change these laws in the short term.

That all said, I am getting a growing sense that, over time, more and more promiment establishment politicians are coming to understand just how talking seriously (and modestly) about marijuana reform can be a winning political issue (especially among younger voters).  Still, as evidenced by some recent posts at my Marijuana blog, the politics, policies and practicalities of marijuana reform are so dynamic, I find myself unwilling ever to make bold predictions about what might happen next in this reform space.

Some recent posts from Marijuana Law, Policy & Reform:

October 8, 2015 in Drug Offense Sentencing, Elections and sentencing issues in political debates, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (5)

"Mass Incarceration: An Annotated Bibliography"

The title of this post is the title of this notable new document prepared by Nicole Dyszlewski, Lucinda Harrison-Cox and Raquel Ortiz now available via SSRN. Here is the abstract:

This annotated bibliography is a scholarly supplement to the 2015 Roger Williams University School of Law Symposium "Sounding the Alarm on Mass Incarceration: Moving Beyond the Problem and Toward Solutions." It contains texts selected to facilitate further study by symposium attendees, researchers, lawyers, policy analysts, law librarians, public officials, law students, criminologists, casual readers, undergraduate professors and activists. The selected monographs have been briefly summarized and critiqued by the authors.

A quick scan of this scholarly supplement reveals it to be an extraordinary resource that I am likely to use on a regular basis.  I highly recommend this document (and I hope it will get updated and re-posted periodically).

October 8, 2015 in Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (1)

Highligthing that states, despite Glossip ruling, continue to struggle with lethal injections

This lengthy new New York Times article, headlined "Death Penalty States Face Hurdles in Carrying Out Executions," reports on the (surprising?) reality that the Supreme Court's recent Glossip ruling has not made it significantly easier for states to complete scheduled lethal injections. Here are excerpts:

Despite a Supreme Court ruling allowing a controversial drug to be used for lethal injections in Oklahoma, death­penalty states are finding it harder to carry out executions as they struggle to obtain and properly use limited supplies of ever­changing combinations of lethal injection drugs.

Prison officials in Texas and Virginia have improvised a short­-term solution by trading drugs for lethal injections.  Both Ohio and Nebraska have sought to buy a drug no longer available in the United States from overseas only to be told by the federal Food and Drug Administration that importing the drug is illegal.

Executions in Mississippi have been postponed for months over a federal lawsuit challenging the state’s three-­drug protocol. The delay will stretch into next year, with a trial scheduled in July 2016.  And in Montana on Tuesday, a judge blocked the state from carrying out executions, ruling that one of the two drugs it planned to use did not comply with the state law governing lethal injections.  The only way Montana can resume executions with that drug, the judge said, is by having the State Legislature modify the law.

“Over time lethal injection has become only more problematic and chaotic,” said Deborah W. Denno, a professor at Fordham Law School and an expert on lethal injections.

Oklahoma last week halted the execution of Richard E. Glossip, who was part of the challenge the Supreme Court had turned down, after officials realized two hours before it was to take place that the state’s supplier had sent prison officials the wrong drug.  The error led to a court-­ordered stay of the three executions scheduled in October and November while officials conduct an investigation....

The scramble for drugs has caused some states to embrace or consider more unusual or more antiquated ways of putting inmates to death.  In 2014, Tennessee authorized prison officials to use the electric chair if lethal-­injection drugs were unavailable.  Gov. Gary R. Herbert of Utah signed a bill into law in March approving firing squads when drugs cannot be obtained.

In April, Oklahoma made nitrogen gas its new backup method.  In Louisiana, where executions have been postponed following a federal lawsuit over its lethal-­injection system, prison officials recommended in a report in February that nitrogen gas be adopted as an alternative method, through the use of a mask or other device but not a gas chamber.

October 8, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (5)

House Judiciary leaders set to introduce (distinct?) big bipartisan sentencing reform bill

As detailed in this press release from the House Judiciary Committee, this morning Committee Chairman Bob Goodlatte (R-Va.) and Ranking Member John Conyers (D-Mich.) are going to release the detail of the House Judiciary Committee’s bipartisan criminal justice reform initiative.  Here is the statement from the pair:

For the past several months, the House Judiciary Committee has been working on a bipartisan basis on several bills to ensure our federal criminal laws and regulations appropriately punish wrongdoers, are effectively and appropriately enforced, operate with fairness and compassion, protect individual freedom, safeguard civil liberties, work as efficiently as possible, do not impede state efforts, and do not waste taxpayer dollars.

As a result of this work, we are pleased to announce that we, along with Crime Subcommittee Ranking Member Sheila Jackson Lee and a bipartisan group of leaders on this issue, will introduce companion legislation to the sentencing reform portion of the Senate bill unveiled last week by Senators Grassley, Durbin, Cornyn, Leahy, Booker and others.

We are also continuing our work on additional bills that address other aspects of our criminal justice system, including over-criminalization, prison and reentry reform, including youth and juvenile justice issues, improved criminal procedures and policing strategies, and civil asset forfeiture reform and we expect to roll out more bills addressing these topics over the coming weeks.

I am very excited to learn that the House is going to have its own version of the Senate's SRCA 2015 making the rounds. This news makes me a bit more optimistic that Congress could get a sentencing reform bill passed at to the desk of the President before the end of 2015.

Recent prior related posts on SRCA 2015:

October 8, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

October 7, 2015

Astute review of (too-often neglected and really critical) back-end criminal justice developments

The October issue of Governing magazine has this lengthy new article that effectively spotlights aspects of criminal justice punishment systems that have too often been ignored or overlooked. The article merits a read in full, and its extended headline highlights why everyone should be interested in the stories within: "The Changing Relationship Between Ex-Criminals and Their Parole Officers: Rather than acting as former offenders' enemies, parole and probation officers are now working to be their mentors. Can it reduce recidivism?". Here are excerpts:

Oftentimes, parole and probation officers are the only positive role models offenders have. About a decade ago, criminologists began asking if parole and probation visits were a missed opportunity for law enforcement.  What if officers developed a more supportive relationship with offenders?  What if they demonstrated to clients that they weren’t just checking boxes and delivering sanctions?  The working theory was that given some personal attention, offenders might be more receptive to advice about resolving conflicts and avoiding crime.
Amid a flurry of academic journal articles and pilot projects, researchers from the University of Cincinnati developed EPICS, short for Effective Practices in Community Supervision, a new model for structured face-to-face meetings between officers and their clients.  While universities in Australia and Canada produced similar approaches based on the same underlying theory, EPICS has become the go-to model for parole and probation in much of the United States.  Since 2006, more than 80 state and county criminal justice departments have adopted EPICS....
By focusing on behavioral change, rather than just threats of being thrown back in jail, EPICS and similar efforts may help break the cycle of incarceration. “I don’t think the majority of people on supervision like being criminals,” says Scott Taylor, who runs the department of parole and probation in Multnomah County. “They just can’t figure how to get out of it.”

Law enforcement agencies in this country have been engaged in community supervision for more than 150 years, basing their practice on the idea that some convicted criminals can reintegrate into society, so long as they meet with assigned officers on a regular basis.  Community supervision takes two primary forms: probation and parole.  Generally speaking, probation is an alternative to incarceration, and parole is early release from prison.  People on probation tend to be convicted of less serious offenses than people on parole....

EPICS is part of a larger change that is developing within the nation’s parole and probation systems.  Parole boards are under scrutiny for keeping people in prison without explaining why they don’t qualify for supervised release in the community.  Many states have changed sentencing requirements so that nonviolent offenders are increasingly the responsibility of local jails and community supervision agencies, not state prisons.  Parole and probation officers are using risk assessment tools to concentrate services on the people who are most likely to reoffend.

Since 2000, anywhere from 4.5 million to 5 million adults have been under community supervision in a given year, but as prisons come under increasing pressure to lower their inmate populations, the number of offenders on parole and probation is certain to grow. In the past, parole and probation agencies have generally ignored research that suggests ways to reduce recidivism; the field has been stuck in a mode of monitoring and enforced compliance.  As more offenders are released to community supervision, however, agencies are showing an interest in ideas designed to cut down on criminal behavior.  EPICS is one of those ideas.

October 7, 2015 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

"Why 21 year-old offenders should be tried in family court"

The title of this post is the headline of this notable Washington Post commentary authored by Vincent Schiraldi and Bruce Western. Here are excerpts:

Just over 100 years ago, there was no separate court for juveniles anywhere in the world. Adolescents were viewed as smaller versions of adults, were prosecuted under the same laws and often sent to the same prisons.

But in 1899, a pioneering group of women — Jane Addams, Lucy Flower and Julia Lathrop — persuaded the state of Illinois to create a separate court to handle juveniles’ cases individually, be more rehabilitative and less punitive and ensure that youthful mistakes wouldn’t haunt youngsters throughout their lives.  The family court was a smashing success, spreading to 46 states and 16 countries by 1925 and decidedly reducing recidivism compared with trying children as adults.

But while family court’s founding mothers got a lot right, the setting of 18 as the court’s maximum age was an arbitrary choice based on the mores of the time rather than hard evidence. It’s time we expanded the protections and rehabilitative benefits of the family court to young adults.

Research in neurobiology and developmental psychology has shown that the brain doesn’t finish developing until the mid-20s, far later than was previously thought. Young adults are more similar to adolescents than fully mature adults in important ways. They are more susceptible to peer pressure, less future-oriented and more volatile in emotionally charged settings.

Furthermore, adolescence itself has become elongated compared with that of previous generations. Today’s young people finish college, find jobs, get married and leave home much later than their parents did. Just 9 percent of young adults were married in 2010, compared with 45 percent in 1960.

Non-criminal law and practice frequently recognize these developmental differences. States prohibit young adults from smoking cigarettes, consuming alcohol, possessing firearms, gambling and adopting children. You can’t serve in the House of Representatives until age 25, it costs more to rent a car as a young adult and you can stay on your parents’ health insurance until 26. However, despite the developmental differences between young and fully mature adults, criminal law draws a stark, scientifically indefensible line at 18. This has disastrous public safety outcomes. For example, 78 percent of 18- to 24-year-olds released from prison are rearrested and about half return to prison within three years, the highest recidivism rate of any age cohort.

Fortunately, there has been growing innovation overseas along with some noteworthy U.S. experiments designed to address the challenges and opportunities this transition-aged population presents. The age of family court jurisdiction in Germany and the Netherlands is 21 and 23, respectively. Many European countries have separate correctional facilities for young adults. In Finland, young people can earn accelerated release from prison by participating in educational and professional training programs....

Attorney General Loretta E. Lynch recently convened an expert panel to explore developmentally appropriate responses to young adults caught up in the justice system. “Research indicates that . . . we may have a significant opportunity, even after the teenage years, to exert a positive influence and reduce future criminality through appropriate interventions,” she said. This “offers a chance to consider new and innovative ways to augment our criminal justice approach.”

Such thinking will undoubtedly face political head winds in some places, but improved outcomes can be used to build support with the public. Frequently, U.S. juvenile justice practice moves adolescents in the opposite direction — from family court into adult court and, too often, adult prisons. An estimated 247,000 people under 18 were tried as adults in 2007, and more than 5,000 adolescents are incarcerated in jails and prisons. There, they are at greater risk of sexual assault and experience higher rearrest rates vs. youth retained in the juvenile justice system. Any reforms for young adults need to also reduce this destructive practice of transferring young people into the maw of the adult system.

Given advances in research and successful innovation here and abroad, now is the time for practice to catch up with science — whether it is raising the family court’s age to 21 or 25 or otherwise creating a separate approach to young adults that reflects their developmental needs and furthers public safety.

October 7, 2015 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9)

Previewing Kansas capital case day for SCOTUS argument

The Supreme Court will be spending the morning today talking a lot about how Kansas administers its death penalty.  (The official nickname for Kansas is the Sunflower State, but perhaps the Justices will be thinking of the state's unofficial nickname of Bleeding Kansas.) Helpfully, SCOTUSblog and Crime & Consequences provides previews. Here are links and leads from their efforts:

Argument preview: Justices to tackle Eighth Amendment — again:

The Justices closed out last Term with a high-profile death penalty case, holding that Oklahoma’s lethal injection procedures do not violate the Eighth Amendment’s ban on cruel and unusual punishment.  The decision in that case may be best known for Justice Stephen Breyer’s dissent, joined by Justice Ruth Bader Ginsburg, in which he suggested that the death penalty itself is unconstitutional.  The Eighth Amendment is back before the Court again tomorrow, albeit with lower stakes, this time in a set of challenges to the procedures used to sentence three Kansas inmates to death.  The oral arguments and the Court’s eventual decision may tell us more about whether some of the Justices’ discomfort with the death penalty will translate into additional protections for defendants in capital cases or whether the Justices will instead remain — as they were in the Oklahoma case —  sharply divided. 

SCOTUS Considers the Wichita Massacre:

Even among people who deal with violent crime all the time, there are some crimes of such revolting depravity, such pure evil, that they knock us back in our chairs just reading about them.  The United States Supreme Court considers such a case tomorrow.  It is the notorious case of brothers Jonathan and Reginald Carr, whose crime spree culminated in a case called the Wichita Massacre.

UPDATEThis short post-argument Reuters piece reports that the "U.S. Supreme Court on Wednesday appeared poised to rule against two brothers challenging their death sentences for a 2000 crime spree in Kansas that included the execution-style murders of four people on a snowy soccer field."

Folks can surmise the basis for this media view by checking out the transcripts in Kansas v. Gleason, Kansas v. Carr, and Kansas v. Carr now available here and here.

October 7, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

October 6, 2015

"Unsophisticated Sentencing"

The title of this post is the title of this notable paper about a notable federal sentencing provision authored by Miriam Baer and now available on SSRN. Here is the abstract:

This essay, written for the Wayne Law Review’s 2014 Symposium on white collar crime and sentencing, examines the rising popularity of the “sophisticated means” enhancement under Section 2B1.1 of the United States Sentencing Guidelines. Over the past decade, the rate at which federal courts apply the enhancement in criminal fraud cases has more than tripled.

This Essay considers several possible explanations for the enhancement’s increasing prevalence, including the possibilities that: (i) fraud offenders as a whole have become more sophisticated; (ii) federal prosecutors are investigating and charging more sophisticated frauds; and (iii) the enhancement’s meaning has, over time, gradually expanded to include additional conduct, a phenomenon I refer to as “sentencing creep.” With this final explanation in mind, the Essay concludes with some practical advice for reinvigorating the enhancement as a useful sorting device.

October 6, 2015 in Federal Sentencing Guidelines, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (2)

Texas completes lethal injection not long after Montana judge finds state's lethal drugs problematic

Two notable lethal injection developments in two states on late Tuesday.  Here are the headlines and parts of the stories:

"Texas Executes Juan Garcia, 11th Inmate of Year"

Texas on Tuesday executed its 11th inmate of this year — a man who killed a former missionary during an $8 robbery when he was a teenager.  Juan Garcia, 35, received a lethal injection and was was pronounced dead at 6:26 p.m. (7:26 p.m. ET).  He was executed for the 1998 murder of Hugh Solano, who had just moved to Houston from Mexico to give his children a better education.

The Texas Board of Pardons and Paroles rejected Garcia's clemency bid in a 5-2 vote last week. Garcia in the past fought execution with claims of mental impairment, but had no appeals pending Tuesday morning.

Garcia apologized to Solano's relatives in Spanish ahead of the execution, and Solano's wife and daughter sobbed and told the inmate they loved him.  "The harm that I did to your dad and husband — I hope this brings you closure," Garcia said.  "I never wanted to hurt any of you all."

As the dose of pentobarbital began, he winced, raised his head and then shook it. He gurgled once and snored once before his movement stopped.  He was pronounced dead 12 minutes later.

"Montana Judge Blocks State from Using Execution Drug"

A Helena district judge on Tuesday ruled that Montana’s method of lethal injection does not comply with state law, effectively staying all executions in the state indefinitely.  District Court Judge Jeffrey Sherlock wrote that the state’s current protocol for executing inmates by lethal injection relies on a drug that is not an “ultra-fast-acting barbiturate,” as required by state law.

The challenge to Montana’s execution methods went to trial last month, when attorneys for prisoners Ronald Allen Smith and William Gollehon — Montana’s only two death row inmates — argued that the drug, pentobarbital, does not adhere to a state law requiring that an “ultra-fast acting” barbiturate must be used during execution.

The state’s revised protocol indicates it will use pentobarbital as a substitute barbiturate, despite the fact that pentobarbital is an intermediate-acting barbiturate, which isn’t allowed under the state’s lethal injection protocol. In his order, Sherlock wrote that by using the term “ultra” in its statute, the Legislature limited the state to using only drugs in the fastest category of barbiturates.  Sherlock ruled that “while pentobarbital may operate in a fast nature, it is not ultra-fast as is required to comply with Montana’s execution protocol.”

October 6, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

"Man 'too high' on marijuana calls Austintown police for help"

The title of this post is the headline of this (amusing?) article from a local Ohio paper that almost reads like a story from The Onion.  Here are the details:

Township police were called to a home Friday night by a man who complained he was “too high” after smoking marijuana. According to a police report, authorities were called to the 100 block of Westminister Avenue at about 5:20 p.m. Friday by a 22-year old male who had smoked the drug.

The officer who responded to the home could hear the man groaning from a room.The officer then found the man lying “on the floor in the fetal position” and “was surrounded by a plethora of Doritos, Pepperidge Farm Goldfish and Chips Ahoy cookies,” the report said. The man also told police he couldn’t feel his hands.

A glass pipe with marijuana residue, two packs of rolling papers, two roaches and a glass jar of marijuana were recovered from the man’s car after he gave the keys to police.

The man declined medical treatment at the home Friday night.  Austintown police have not charged the man in the incident as of late Monday morning.

I am tempted to react to this story by wondering aloud if the cop-calling, worried-weed consumer has twice enjoyed (white?) privilege by (1) thinking he could seek help from the police for his pot problem, and (2) for not yet getting arrested or charged for his various crimes. But rather than turn this story serious, I will instead just request that readers help me imagine funnier headlines for this tale of foolishness.

October 6, 2015 in Marijuana Legalization in the States, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues | Permalink | Comments (5)

Early prisoner release following reduced drug guideline retroactivity about to be reality

It seems like a real long time ago that the US Sentencing Commission suggested it might reduced the severity of its drug sentencing guidelines across the board. (In fact, it was way back in early January 2014, as reported in this post.)  That USSC proposal a few month later became a formal guideline amendment known as drugs -2 (as reported here in April 2014); some months after that, the USSC formally voted to make this reduced guideline fully retroactive to those already serving long federal drug prison sentences (as reported here in July 2014).  

But when making its reduced drug guidelines retroactive, the USSC also provided that no federal drug prisoner should be released until fall 2015 in order to give courts and prisons time to process all thousands of folks who would not be eligible to seek early release.  Now, as this new Washington Post piece reports, all this USSC reform is finally going to mean thousands of prisoners actually securing early releases:

The Justice Department is set to release about 6,000 inmates early from prison — the largest one-time release of federal prisoners — in an effort to reduce overcrowding and provide relief to drug offenders who received harsh sentences over the past three decades.

The inmates from federal prisons nationwide will be set free by the department’s Bureau of Prisons between Oct. 30 and Nov. 2. Most of them will go to halfway houses and home confinement before being put on supervised release.

The early release follows action by the U.S. Sentencing Commission — an independent agency that sets sentencing policies for federal crimes — which reduced the potential punishment for future drug offenders last year and then made that change retroactive....

The panel estimated that its change in sentencing guidelines eventually could result in 46,000 of the nation’s approximately 100,000 drug offenders in federal prison qualifying for early release. The 6,000 figure, which has not been reported previously, is the first tranche in that process.

“The number of people who will be affected is quite exceptional,” said Mary Price, general counsel for Families Against Mandatory Minimums, an advocacy group that supports sentencing reform. The Sentencing Commission estimated that an additional 8,550 inmates would be eligible for release between this Nov. 1 and Nov. 1, 2016....

The U.S. Sentencing Commission voted unanimously for the reduction last year after holding two public hearings in which members heard testimony from former attorney general Eric H. Holder Jr., federal judges, federal public defenders, state and local law enforcement officials, and sentencing advocates. The panel also received more than 80,000 public comment letters, with the overwhelming majority favoring the change.

Congress did not act to disapprove the change to the sentencing guidelines, so it became effective on Nov. 1, 2014. The commission then gave the Justice Department a year to prepare for the huge release of inmates.

The policy change is referred to as “Drugs Minus Two.” Federal sentencing guidelines rely on a numeric system based on different factors, including the defendant’s criminal history, the type of crime, whether a gun was involved and whether the defendant was a leader in a drug group. The sentencing panel’s change decreased the value attached to most drug-trafficking offenses by two levels, regardless of the type of drug or the amount.

An average of about two years is being shaved off eligible prisoners’ sentences under the change. Although some of the inmates who will be released have served decades, on average they will have served 8 1/2 years instead of 10 1/2 , according to a Justice Department official.

“Even with the Sentencing Commission’s reductions, drug offenders will have served substantial prison sentences,” Deputy Attorney General Sally Yates said. “Moreover, these reductions are not automatic. Under the commission’s directive, federal judges are required to carefully consider public safety in deciding whether to reduce an inmate’s sentence.”

In each case, inmates must petition a judge, who decides whether to grant the sentencing reduction. Judges nationwide are granting about 70 sentence reductions per week, Justice officials said. Some of the inmates already have been sent to halfway houses.

In some cases, federal judges have denied inmates’ requests for early release. For example, U.S. District Judge Royce C. Lamberth recently denied requests from two top associates of Rayful Edmond III, one of the District’s most notorious drug kingpins. Federal prosecutors did not oppose a request by defense lawyers to have the associates, Melvin D. Butler and James Antonio Jones, released early in November.  But last month Lamberth denied the request, which would have cut about two years from each man’s projected 28 1/2 -year sentence....

Critics, including some federal prosecutors, judges and police officials, have raised concerns that allowing so many inmates to be released at the same time could cause crime to increase.

But Justice officials said that about one-third of the inmates who will be released in a few weeks are foreign citizens who will be quickly deported.  They also pointed to a study last year that found that the recidivism rate for offenders who were released early after changes in crack-cocaine sentencing guidelines in 2007 was not significantly different from the rate for offenders who completed their sentences.

October 6, 2015 in Drug Offense Sentencing, Federal Sentencing Guidelines, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

Montgomery wards: certain victims' family members voicing support for juve murderers getting a chance at resentencing

As noted in this prior post, I am doing a series of posts in preparation for the US Supreme Court hearing oral argument in Montgomery v. Louisiana, and I have a terrific research assistant drafting summaries of various amicus briefs submitted in Montgomery (all of which can be found via this SCOTUSblog page).  Here is how he summarized some portions of this Brief of Amici Curiae of Certain Family Members of Victims Killed by Youths in Support of Petitioner:

A collection of people who have lost loved ones, including friends and family, to violent murders submitted an amicus brief in support of the petitioner in Montgomery v. Louisiana. Their argument is both emotional and sensible; it does not appeal to the formalisms of legal argument or precedent.

At its heart, this brief addresses the emotional and personal impact of locking away a person away forever for a crime they committed as a child. This brief pleads the Court to acknowledge the merits of leniency, compassion, and the rehabilitative potential of children. All of the stories contained in this brief are moving and important. Here are a few summarized excerpts.

Jeanne Bishop

“Jeanne Bishop lost her younger sister, Nancy Bishop Langert, brother-in-law Richard Langert, and their unborn child on April 7, 1990.” Brief for Amici Curiae of Certain Family Members of Victims Killed by Youths in Support of Petitioner, Montgomery v. Louisiana, (No. 14-280), at 4. Sixteen year-old David Biro shot and killed the couple in their home after breaking into their home while they were out and lying in wait for their return. After a two-week trial, David was convicted of the murders and sentenced to mandatory life without parole—the only possible punishment for a double-murder committed by a child in Illinois. Neither Jeanne nor anyone else in her family was not allowed to make a victim impact statement during sentencing.

Due to her religious beliefs, Jeanne forgave David, but she was happy that he “would be locked up forever.” Id. at 5. However, over time, Jeanne’s belief that David was a remorseless killer came under question and she decided to write to him. In response, David sent Jeanne a 15-page letter confessing to the crime for the first time and expressing “deep regret.” Id. Jeanne began to visit David in prison after this initial correspondence and has developed a “strong, honest, and respectful” relationship with him. Id. at 6.

“Jeanne knows that many want to write off people like David because, in their mind, people like him can never change. But, she wonders ‘whether what we are truly afraid of is not that they will never get better, but that they might.’” Id.

Linda White

On November 18, 1986, Linda White’s 26 year-old daughter Cathy was murdered by two teenage boys. Id. at 10. The boys asked Cathy for a ride out of town to avoid abusive parents. After Cathy had agreed and driven the boys a distance, the boys brandished guns and ordered Cathy to pull over. After stopping the car, the boys raped Cathy and shot her four times.

After being arrested, one of the boys — Gary — pled guilty to the murder. Gary, who was 15 years old at the time of the murder, was sentenced to 54 years in prison.

Many years after he was incarcerated, Gary agreed to let Linda, his victim’s mother, visit him. “When Linda and Gary finally met, Linda found that he was no longer the child who had callously raped and killed her daughter. Gary was a different person – a remorseful grown man who was desperately seeking both forgiveness and a chance to start making up for all of the hurt that he had inflicted.” Id. at 12.

As of 2015, “Gary has been out of prison for nearly six years. In that time, he has immersed himself in a new community, found and held a job, and begun working with drug and alcohol addicts at his church in a role in which his minister says he has made an incredible difference. Gary has kept himself out of trouble. He and Linda remain in contact, and he never stops apologizing for the pain that he caused. To Linda, Gary is a perfect example for why life sentences are so unjust, especially for children.” Id.

Prior posts in series:

October 6, 2015 in Assessing Miller and its aftermath, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (3)

"Federalism, Federal Courts, and Victims’ Rights"

The title of this post is the title of this notable new article by Michael Solimine and Kathryn Elvey available via SSRN. Here is the abstract:

A striking development in American criminal justice in the past forty years is the widespread adoption and acceptance of the rights of victims, at both the federal and state levels.  A notable exception to this innovation has been the repeated, unsuccessful attempts, continuing to the present day, to pass a Victims’ Rights Amendment to the U.S. Constitution.  The considerable scholarly literature on the VRA has not rigorously examined the putative need for the VRA from a federalism perspective, a task this article undertakes.

The article examines the history of the victims’ rights movement, and of the repeated attempts to pass the VRA.  We argue that both supporters and critics of the VRA have not convincingly addressed federalism issues raised by the potential adoption of the VRA.  In contrast, we argue that functional principles of federalism suggest that the VRA and nationalization of victims’ rights is unnecessary.  On the other hand, we argue that there is one way that the federal government can recognize state development of victims’ rights. In habeas corpus actions in federal court, challenging state court convictions, we argue that victims of state crimes should be permitted and encouraged to participate in those proceedings, in ways not generally permitted to date.

October 6, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (6)

October 5, 2015

Leading distinct GOP Senators make the case for federal sentencing reform via SRCA 2015

I am quite pleased to see that, in the wake of introducting in the US Senate the remarkable Sentencing Reform and Corrections Act of 2015 (basics of SRCA here), two prominent GOP Senators (one old guard, one new guard) have taken to the op-ed pages to explain what they are doing.   Politics_Grassley_620Here are links to these op-eds:

From (old guard) Senate Judiciary Chair Charles Grassley in the Des Moines Register here, "I'm working for criminal justice reform."  Excerpts:

For the last several months, I’ve listened, worked, negotiated and built consensus with my colleagues on an important public policy that governs crime and punishment and has a sweeping effect on the citizenry.  The nation’s criminal justice system serves the accused and the aggrieved in our society. And the taxpaying public foots the bill for our courts, law enforcement and prisons that protect public safety and serve justice....

Notwithstanding the merits of mandatory minimums that are designed to promote the public good and public safety, federal sentencing has come under increased scrutiny for locking up low-level offenders and incarceration rates that are running up an unsustainable tab to American taxpayers, roughly $80 billion annually. There’s no doubt that drug and human trafficking and gang-related crimes continue to persist and poison the well of civic life, endangering public safety daily.  And yet, there’s room for sensible reforms that improve the criminal justice system so that it’s fair and just to victims, the accused and taxpayers.  The right policy mix of reforms can give low-level offenders who have paid their debts to society a second chance to rejoin their families and find employment in their communities.

This week I introduced the bipartisan Sentencing Reform and Corrections Act of 2015. It reflects carefully crafted sentencing reforms to achieve fairness, justice and fidelity to the rule of law.

Our proposed reforms give the courts more flexibility in federal sentencing laws for non-violent, low-level drug offenders, including the elimination of the three strikes mandatory life provision.  We also expand the existing safety valve and add a second safety valve that provide relief from the 10-year mandatory minimum for certain low-level offenders.  It would retroactively apply the Fair Sentencing Act of 2010 that reduced the sentencing disparity between crack and powder cocaine criminal drug offenses.

We also target and expand some of the existing mandatory minimums so that law enforcement can continue to pursue violent repeat offenders and gun criminals.  And we create new mandatory minimums for crimes involving interstate domestic violence and the export of weapons and other defense articles to prohibited countries and terrorists.

The scales of justice require equal rights under the law for the accused and for victims of crime.  Fairness in a criminal justice system also must consider the opportunity for reintegration.  Our bill would require the Department of Justice to classify all federal inmates and assign qualifying prisoners to a recidivism reduction program.  This may include job training, drug recovery, faith-based and work and education programs that provide eligible inmates an opportunity to earn early release.

There’s a fine line between leniency and levelheadedness.  That’s why I’m working for balanced reforms that do not compromise public safety and national security.

From (new guard) Senator Mike Lee in the Washington Examiner here, "The conservative case for criminal justice reform."  Excerpts:

The problem today is not simply that penalties are too harsh or sentences too long — though in many cases they are.  The problem is that, over the past several decades, we have industrialized and bureaucratized our criminal, judicial and penal systems.

Which is to say, we've turned them into unaccountable, short-sighted, input-oriented, self-interested institutions — immune to common sense — that treat offenders as statistical cases rather than human beings.

For conservatives, criminal justice reform is not a venue for the airing of ideological grievances or the testing of fashionable theories.  It's about helping our communities stay as safe and secure as possible, while infringing as little as possible on the God-given, equal rights of all Americans and their pursuit of happiness.

It's about designing our laws, our court procedures and our prison systems on the basis of a clear-eyed and time-tested understanding of human nature — of man's predilection toward sin and his capacity for redemption — as well as an uncompromising respect for the fundamental dignity of the human person.  Criminal justice reform, properly understood, is an invitation for principled conservatism at its best.  Our bill expands judicial discretion, so judges can treat offenders like human beings, not statistics, and punish them according to their particular circumstances, instead of indiscriminate bureaucratic guidelines.

It broadens the federal "safety valve" — a provision that allows federal judges to sentence a limited number of offenders below the mandatory minimum sentence.

The bill also improves the quality of our federal prison system, so that we have fewer first-time offenders turning into career criminals. It will expand inmates' access to vocational training, therapeutic counseling and reentry services that help offenders who have fulfilled their sentences return to their families, their communities, and lawful, steady jobs.

Reforming our federal criminal justice system doesn't require us to avert our eyes from a person's crimes, or make excuses that blame someone, or something, else for the choices he made.  No, it requires looking squarely at the facts of the case, no matter how ugly or wicked; holding offenders directly and personally accountable for their crimes; and devising a punishment that fits both the crime and the criminal.

We do this all the time in our daily lives when we recognize the humanity of hating the sin, not the sinner.  It's called forgiveness.  Forgiving is not the same thing as excusing. Nor is it incompatible with punishment.

Forgiveness requires assigning blame and, when necessary, imposing punishments — which is to say forgiveness requires treating offenders as morally responsible individuals — as human beings who, like the rest of us, have the propensity for vice and for virtue, and who must be held accountable for their choice of one or the other.

We know that no man is without sin.  Now, we must remember — in our hearts and in our laws — that no man is without hope.  This is why I'm involved — and invite you to join me — in the conservative movement for criminal justice reform.

The two lines I will remember from the pieces are sure to be "There’s a fine line between leniency and levelheadedness," and "we must remember — in our hearts and in our laws — that no man is without hope."

Recent prior related posts on SRCA 2015:

October 5, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8)

Previewing the early criminal law cases on the SCOTUS docket

In this post at the Federalist Society blog, Kent Scheidegger provide an effective preview of the handful of Supreme Court cases dealing with criminal law issues that are to be heard by the Supreme Court in the first few weeks of its new Term. As regular readers know and as Kent notes, a number of the early cases involve the death penalty, and this recent Wall Street Journal article highlights the capital case concentration in an article headlined "Supreme Court Docket Loaded With Death-Penalty Cases."

But before the capital case kvetching gets started in earnest, the first criminal justice case to be heard by the Justices comes on Tuesday with Ocasio v. United States.  At SCOTUSblog here, Rory Little has this lengthy preview of Ocasio, which gets started this way:

The Court’s first criminal case of the Term presents a real brain teaser: may a defendant be convicted of conspiracy to commit an offense, when he has the intent necessary to commit the offense but his co-conspirator does not?  The case arises in the specific context of the unusual federal Hobbs Act extortion statute, and getting to the specific question initially requires some complex explanation.  But unless I misunderstand it, the general question is as old as the common law.

October 5, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Via summary reversal, SCOTUS rejects state court determination of ineffective defense

At the end of this long SCOTUS order list (which kind of marks the official start of a new Supreme Court term, OT15) is a short per curiam opinion in Maryland v. Kulbicki, No. 14-848 (S. Ct. Oct. 5, 2015). The opinion provides a notable win for prosecuors, starting and ending this way:

A criminal defendant “shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U. S. Const., Amdt. 6.  We have held that this right requires effective counsel in both state and federal prosecutions, even if the defendant is unable to afford counsel. Gideon v. Wainwright, 372 U. S. 335, 344 (1963).  Counsel is unconstitutionally ineffective if his performance is both deficient, meaning his errors are “so serious” that he no longer functions as “counsel,” and prejudicial, meaning his errors deprive the defendant of a fair trial.  Strickland v. Washington, 466 U.S. 668, 687 (1984).  Applying this standard in name only, the Court of Appeals of Maryland held that James Kulbicki’s defense attorneys were unconstitutionally ineffective. We summarily reverse....

Given the uncontroversial nature of [Comparative Bullet Lead Analysis] CBLA at the time of Kulbicki’s trial, the effect of the judgment below is to demand that lawyers go “looking for a needle in a haystack,” even when they have “reason to doubt there is any needle there.”  Rompilla v. Beard, 545 U.S. 374, 389 (2005).  The Court of Appeals demanded something close to “perfect advocacy” — far more than the “reasonable, or CBLA competence” the right to counsel guarantees.  Yarborough v. Gentry, 540 U.S. 1, 8 (2003) (per curiam).  

Kulbicki’s trial counsel did not provide deficient performance when they failed to uncover the 1991 report and to use the report’s so-called methodological flaw against Peele on cross-examination.  (We need not, and so do not, decide whether the supposed error prejudiced Kulbicki.)  The petition for writ of certiorari is granted, and the judgment of the Court of Appeals for Maryland is reversed.

October 5, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Missouri Gov commutes death sentence at last minute because...............??

The quirky question in the title of this post is my reaction to this notable capital clemency news out of the Show Me state that leaves me wishing the chief executive of the state had showed all of us more about his reasons for communiting a death sentence only days before a scheduled execution.  Here are the (somewhat mysterious) details via this local article headlined "Nixon commutes death sentence for convicted murderer Kimber Edwards":

Missouri Gov. Jay Nixon commuted on Friday the death sentence for Kimber Edwards, who was convicted in the 2000 murder-for-hire of his ex-wife, to a life sentence without parole. Edwards had been scheduled to be executed by injection at 6 p.m. Tuesday. His attorneys had recently asked the Missouri Supreme Court to throw out his conviction and death sentence because of doubts raised about his guilt.

Nixon did not explain his surprise decision, other than to say it came after a “thorough review of the facts” and was “not taken lightly.” He said the evidence supported the jury’s decision to convict Edwards of first-degree murder.

“After a thorough review of the facts surrounding the murder of Kimberly Cantrell, I am convinced the evidence supports the jury’s decision to convict Kimber Edwards of first-degree murder. At the same time, however, I am using my authority under the Missouri Constitution to commute Edwards’ sentence to life without the possibility of parole. This is a step not taken lightly, and only after significant consideration of the totality of the circumstances. With this decision, Kimber Edwards will remain in prison for the remainder of his life for this murder.”

Reached later Friday, a spokesman for Nixon said he would not elaborate.

Kimberly Cantrell, 35, was shot twice in the head in her apartment in the 1100 block of Midland Avenue in University City on Aug. 22, 2000. Authorities said Edwards had hired Orthell Wilson to kill Cantrell, Edwards’ ex-wife, to prevent her from testifying in a child-support hearing.

One of Cantrell’s siblings, Chuck Cantrell of San Jose, Calif., said that his family was informed of the decision less than five minutes before it was made public. Cantrell spoke to a legal adviser for the governor but wanted to speak to Nixon himself. “I would think that the governor would certainly understand that his action of this magnitude certainly has impact on the survivors of the victim,” he said. “I just can’t imagine that his office could be so callous. I would hate to think this would be some sort of political maneuver. It doesn’t make a whole lot of sense.”

He said family members had had no plans to witness the execution, but that didn’t mean they didn’t care about the case. He said he and his family had no doubt about Edwards’ guilt and that they knew how Edwards could manipulate a situation to his advantage. Edwards’ attorneys had recently tried to cast doubt on his guilt. They focused on two statements that were central to his case. One was a statement by Wilson, who said Edwards had hired him to kill Cantrell in 2000. The other was a confession from Edwards.

Wilson, who is serving a life sentence without parole, has recanted his statement, telling a Post-Dispatch reporter in April that he had acted alone and had lied about being hired by Edwards. He then signed an affidavit saying so. Edwards claimed at his trial — and ever since — that he was innocent. In new appeals, his attorneys pointed to the possibility that police had coerced his confession. They claimed Edwards has a form of autism that could have made him vulnerable to aggressive interrogation techniques, leading him to make a false confession.

Edwards’ attorney, Kent Gipson of Kansas City, petitioned the state Supreme Court to throw out the conviction for murder and armed criminal action, and the death sentence, and appoint a special master to review Edwards’ innocence claim. The court denied in July a similar request to study Edwards’ claim of innocence. The court has not yet ruled on Gipson’s petition. But he said he made the same case to lawyers from Nixon’s office this week.

“We’re all very happy because (days leading up to an execution are) always a very stressful and difficult time for everyone, the clients, the lawyers and the family,” Gipson said. “It’s a load off everyone’s shoulders, particularly the client, because he’s going to live.”... Gipson said the commutation of the death sentence would give him and Edwards more time to potentially seek a new trial.

In recent days, Gipson had been pressing a claim with Nixon’s office that during the penalty phase after Edwards’ conviction, the prosecutor in the case had inquired whether Edwards would be willing to waive appeals in the case in exchange for life in prison. But his supervisors refused.

According to notes in the attorney’s file from 13 years ago, Judge Mark D. Seigel expressed in chambers that he was unhappy about the lack of a deal to spare Edwards. Reached Friday, Seigel said that he did not remember the conversation and that it “does not sound like something I would have said in chambers or anywhere else.”

I presume that lingering concerns about guilt prompted the Governor's actions here, but it would be helpful if the commutation statement spoke to that possibility or whatever else might have motivated the Governor to act in this way.   I think it is entirely appropriate and readily justifiable for a clemency board or a governor to commute a death sentence based on concerns about residual guilt.  But I do not consider it appropriate or justifiable for a decision made on this basis (or others) to be hidden behind the kind of cursory statement offered by Gov Nixon in this case.

October 5, 2015 in Clemency and Pardons, Death Penalty Reforms, Who Sentences? | Permalink | Comments (3)

October 4, 2015

"Toward Saner, More Effective Prison Sentences"

The title of this post is the headline of this New York Times editorial discussing the Sentencing Reform and Corrections Act of 2015 (SRCA 2015) introduced by US Senate leadership late last week. Here are excerpts:

The sentencing reform bill introduced in the Senate on Thursday falls far short of what is needed, but it is a crucial first step on the long path toward unwinding the federal government’s decades­long reliance on prisons as the answer to every ill....

Among the most significant are those that would reduce mandatoryminimum sentences for many drug crimes.  These sentences are jaw-droppingly long — from five years for a first offense up to life without parole for a third.  The new bill would cut the life sentence to a 25­year minimum, and would cut the 20­year sentence for a second offense to 15 years.

These may seem like minor tweaks to pointlessly long sentences, and for the most part they are.  But when half of all federal inmates are in for drug crimes, even small changes can make a real difference.

In addition, the bill would give federal judges more power to impose sentences below the mandatory minimum in certain cases, rather than being forced to apply a strict formula. This would shift some power away from prosecutors, who coax plea deals in more than 97 percent of cases, often by threatening defendants with outrageously long punishments.

Other provisions would give more inmates the chance to earn early release by participating in educational and other rehabilitative programming; seal or expunge juvenile records, so people are not burdened for life because of crimes they committed when they were young; and make it easier for older inmates to seek early release — a smart idea because they are by far the costliest to keep imprisoned and the least likely to commit new crimes.

Finally, and critically, many parts of the bill are retroactive, which means thousands of current federal inmates could benefit immediately.  In particular, 6,500 prisoners are still serving time under an old law that punished crackcocaine offenses far more severely than powder­cocaine offenses.  When the law was altered to reduce the disparity in 2010, the change applied only to new cases, leaving thousands of inmates serving unjustly long sentences for no good reason....

So much of American sentencing policy has been driven by irrational, fact­free scare­mongering.  This new bill would, at the very least, provide volumes of data that could show — as other legislative efforts have already shown — that it’s possible to reduce both prison populations and crime at the same time.

Recent prior related posts:

October 4, 2015 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Three of Kettle Falls Five get sentenced to real federal time for marijuana grow in Washington state

As reported in this AP article, headlined "Marijuana growers sentenced to federal prison," a high-profile federal marijuana prosecution, in a state in which marijuana slaes are now legal, culminated in sentencing late last week. Here are the details:

The three remaining defendants in the case of the so-called Kettle Falls Five were sentenced to federal prison on Friday for growing marijuana in a state where both the medical and recreational use of marijuana are legal under Washington laws.

The defendants are known as the Kettle Falls Five because of their original number. They were convicted earlier this year of growing marijuana on their rural property near Kettle Falls, in violation of federal law.

Rolland Gregg was sentenced Friday to 33 months in prison, followed by three years of probation. His wife Michelle Gregg, 36, was sentenced to one year in prison and three years of probation. Rhonda Firestack-Harvey, 56, who is Rolland Gregg's mother, was also sentenced to one year in prison and three years of probation.

All three remain free pending the outcome of appeals.... The case had been closely watched nationally by marijuana activists, who criticized the federal government for prosecuting marijuana growers in a state where cannabis is legal.

Assistant U.S. Attorney Earl Hicks rejected the notion that the defendants were growing the pot for their own medical use. "This is a for-profit marijuana grow," Hicks said. "It has nothing to do with medical marijuana."

Prosecutors contended the defendants grew more than 100 pounds of marijuana in 2011 and 2012, far in excess of their personal needs. Defense attorneys argued for sentences of probation only. "This was not a for-profit marijuana grow," said attorney Phil Tefleyan, who represented Rolland Gregg.

Larry Harvey was excused from the case when he was diagnosed with pancreatic cancer last year and has since died. Family friend Jason Zucker accepted a plea deal from federal prosecutors and testified for the government at trial in exchange for a 16-month penalty.

The remaining three were convicted in March by a federal jury of growing between 50 and 100 marijuana plants on their rural property, which was searched by investigators in 2012. Since then, Washington has also legalized the recreational use of marijuana. But growing and possessing marijuana remains a crime under federal laws.

The defendants did not dispute that they grew marijuana, but contended they grew less than the government alleged. The jury exonerated them of more serious charges of distributing marijuana, conspiracy to distribute and firearms charges that carried long prison sentences.

October 4, 2015 in Offense Characteristics, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (0)

Strong crime and punishment coverage of drugs, guns and more via Vox

I remain a bit unsure of what Vox is and who is behind all of Vox Media, but I am sure that Vox has recently done a lot of good and important work on a lot of topics that should be of great interest to criminal justice fans.  Here are headlines and links:

October 4, 2015 in Drug Offense Sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Second Amendment issues | Permalink | Comments (1)

Highlighting how state education spending decreases as state corrections spending increases

Following on the heels of the Education Secretary urging states to spend less of prisons and more on schools (noted here), this Christian Science Monitor article notes reports on the relationship between different kinds of human capital investments states have made in recent years.  The article is headlined "The hidden costs of funding prisons instead of schools: As state incarceration rates continue to rise across the country, so are cuts in higher education funding."  Here are excerpts (with links from the original):

Lawmakers in 11 states are spending more on prisons and jails than their public colleges, according to a report compiled by the American Academy of Arts and Sciences.  According to the report, state budgets for public universities have been cut about 20 percent since 2008 when recession hit, while funding for prisons has spiked 141 percent.  

That's solving the wrong side of the problem, argued Secretary of Education Arne Duncan during a speech this week. "The linkage between education, or a lack thereof, and incarceration is powerful," he said.  "More than two-thirds of state prison inmates are high school dropouts," said Secretary Duncan, "and an African-American male between the ages of 20 and 24 without a high school diploma or GED has a higher chance of being imprisoned than of being employed."

A 2014 report from the Center on Budget and Policy Priorities (CBPP) shows a direct correlation between increased prison spending and cuts in education. Not surprisingly, states with the highest incarceration rates pull the most money from their schools.  And that drives up tuition at public universities, reports CNN. State funding "accounts for about half of a typical school's budget," CNN reports. "The other half comes from the federal government and tuition and fees."

According to the new AAAS report, the states that spend more on prisons than universities are Michigan, Oregon, Arizona, Vermont, Colorado, Pennsylvania, New Hampshire, Delaware, Rhode Island, Massachusetts, and Connecticut. 

Prior recent related post:

October 4, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)