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October 24, 2015

Justice Anthony Kennedy condemns extreme US punishments as "ongoing injustice of great proportions"

This new piece in the Harvard Gazette, headlined "Kennedy assails prison shortcomings," highlights that an especially notable Supreme Court justice is saying some especially notable things about the US criminal justice system. Here is how the piece gets started:

Without mincing words, U.S. Supreme Court Justice Anthony Kennedy disparaged the American criminal justice system on Thursday for the three prison scourges of long sentences, solitary confinement, and overcrowding.

“It’s an ongoing injustice of great proportions,” said Kennedy during a conversation with Harvard Law School (HLS) Dean Martha Minow at Wasserstein Hall, in a room packed mostly with students.

Kennedy criticized long prison sentences for the high costs associated with them. (In California, where Kennedy comes from, the cost per prisoner is $35,000 per year, he said.) He also said long sentences have appalling effects on people’s lives.

Solitary confinement, he said, “drives men mad.” He called mandatory minimum sentences “terrible” and in need of reform. Sentences in the United States, he said, are eight times longer than sentences in some European countries for equivalent crimes. With more than 1.5 million prisoners in federal, state, and local jails, the United States has the world’s largest prison population.

The worst of the matter, he said, is that nobody pays attention to this wrong, not even lawyers. “It’s everybody job to look into it,” he said.

Kennedy, LL.B. ’61, whose views on the court reflect a preoccupation with liberty and dignity, has often been described as the high court’s swing vote on major issues. But during his talk with Minow, he said he hated to be depicted that way. “Cases swing. I don’t,” he quipped, as the room erupted in laughter.

October 24, 2015 in Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (43)

October 23, 2015

"Marijuana Politics and Policy: As Goes Ohio, so Goes the Nation...?"

The title of this post is the title of an exciting event that I have been helping some of my students at The Ohio State University Moritz College of Law put together.  The event's timing is working out great, because the next Friday, October 30, 2015 is just few days days after the GOP candidates will be in Colorado discussing econmic issues (and marijuana reform?) and a few days before Ohio voters will go to the polls to decide on two marijuana-related ballot initiatives.  

Folks can (and should) pre-register for this (free) event at this link, which is also where you can find this summary description:

National leaders in Marijuana Politics and Policy will gather at Moritz to discuss what we have learned from reform movements in states like Colorado, Washington and others, and how these movements relate to the impending Ohio Election. In addition to discussing the impact of marijuana reform on a variety of broader criminal justice and social reform movements, the event will include a discussion of what effects reform in Ohio would have both within the state and nationally.

Participants will include Professor Douglas Berman, John Hudak from the Brookings Institute, Philip Wallach from the Brookings Institute and local researchers and advocates.

Why this event is so timely and exciting should become obvious from just a review of these recent posts from my Marijuana Law, Policy & Reform blog: 

October 23, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (3)

Would Paul Ryan as House Speaker dramatically improve prospects for federal sentencing and marijuana reform?

Great_white_hope_rectThe question in the title of this post post prompted by this news that "Rep. Paul Ryan officially declared his bid for House speaker Thursday after consolidating the support he needs to be elected by his colleagues next week," and Ryan's prior comments about sentencing reform and marijuana policy.  Specifically, as detailed in a bunch of older prior posts linked below, Ryan back in 2012 stated that he favored allowing states to set their own marijuana policies, and in 2014 Ryan expressed support for the Smarter Sentencing Act and released an anti-poverty plan that stressed the need for federal sentencing reforms in order "to tap [past offenders'] overlooked potential and ameliorate the collateral impact on children and families."

Of course, past statements and policy positions often get conveniently forgotten or can even change dramatically when a politician pursues a new leadership role at a new political time.  (For example, as stressed in this post on my marijuana reform blog Donald Trump once suggested full legalization would be the only way to "win" the drug war, but to date nobody in the MSM has asked about this position or pressed him about his views on the potential economic benefits of marijuana legalization.)   So it is possible that Ryan as House Speaker would not prioritize or even now fully support significant federal sentencing and marijuana reforms.  

But, as regular readers know well, there is a significant generational divide (especially within the GOP) concerning federal criminal justice reform issues.  Generally speaking, younger politicians like Ryan have been much more supportive of reform (and vocal about their support of reform) than older folks like out-going House Speaker John Boehner.  Consequently, even if Ryan as House Speaker might not be inclined to make criminal justice reform a top priority, I suspect the younger GOP generation with which he is linked could considerably increase the chances that the House become much more invested and aggressive in making big federal criminal justice changes in the months and years ahead.

A few prior related posts about (future long-time House Speaker?) Paul Ryan and the true conservative case for federal sentencing and marijuana reform:

October 23, 2015 in Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Marijuana Legalization in the States, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (3)

"Utah latest red state grappling with death penalty"

The title of this post is the headline of this notable local article reporting on a notable new discussion about the death penalty in the Beehive State.  Here are the basics:

For the first time in years, Utah lawmakers are debating the merits of the death penalty, with some conservative Republican legislators questioning whether the cost and risk of executing innocent people argued for doing away with executions in the state.

"I'd pull the switch if I knew the person was guilty, and I have no problem with an eye for an eye," said Sen. Mark Madsen, R-Saratoga Springs. "But it is not a conservative value to have blind, slavish faith in government and to assume that they'll always get it right just because they have a badge or work in the prosecutor's office and we've invested them with a lot of authority."

Members of the Legislature's Judiciary Interim Committee heard from a pair of legislators in Nebraska about why that state recently abolished capital punishment, and critics of the death penalty who said the cost is exorbitant and the risk of executing innocent people is very real.

Madsen, the committee chairman, described his own evolution on the issue, to the point where he would support following the lead of legislatures in other states and do away with the death penalty. Other states are already moving in that direction.

Last week, Ohio Gov. John Kasich granted a reprieve to inmates scheduled for execution in 2016, since the state has been unable to obtain the drugs used in lethal injections. The attorney general in Oklahoma announced a one-year moratorium on executions after it was found the state used the wrong drug in its most recent case. Earlier this month, a judge in Montana blocked executions in that state for the same reason.

And the Nebraska Legislature repealed the death penalty earlier this year, but a petition drive seeking to reverse the move has blocked the repeal from taking effect until after the 2016 election.

Nebraska Republican Sen. Brett Lindstrom told the committee by phone that he supported the death penalty a year ago, but botched executions in other states and concerns about the cost and false convictions led him to a change of heart. "It just wasn't something that was working all that well in the state of Nebraska," he said....

The prospects for such a major shift among Utah's conservative Legislature are unclear, and neither Madsen nor any other Utah lawmaker is currently sponsoring a bill to end the death penalty. "I don't think Utahns think that much about the death penalty because it hardly ever happens in our state, but when it does, it's a horrific thing," said Rep. Steve Handy, R-Layton. But he acknowledged polls continue to show public support for the practice. "I don't see — and I'm going to say, unfortunately — too much of an appetite to ban the death penalty."

Handy cited figures he had prepared by legislative analysts in 2012 that showed executing a hypothetical 25-year-old convict would cost the state $1.6 million more than it would cost to incarcerate the same inmate for the rest of his or her life. And the state, at that time, spent $1.75 million a year handling death-row appeals.

More compelling to several lawmakers, was the risk of wrongly executing an inmate. Jensie Anderson from the Rocky Mountain Innocence Project said there are estimates that 4 percent of those on death row in the United States are innocent. Since 1973, there have been 156 death-row convicts who have been exonerated — one exoneration for every nine inmates put to death. "The problem is the system gets it wrong," she said....

But some, like Rep. Dixon Pitcher, R-Ogden, has no problem with continuing the current course. He and Handy knew Carol Naisbitt and her son Cortney, who were shot in the back of the head during the Ogden Hi-Fi murders in 1974. Carol was killed and Cortney lived with debilitating injuries until he died in 2002. Their killers, Pierre Dale Selby and William Andrews, were executed in 1987 and 1992, respectively.

Pitcher said he trusts the checks in place in the justice system to get it right and would be "opposed to taking [the death penalty] off the table."...

House Minority Leader Brian King, D-Salt Lake City, said the process of going through an execution itself is detrimental to society. "It's not the high road that I think we as a state and we as a country should be on, and the existence of the death penalty for me is a very coarsening thing," King said.

October 23, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Perspectives on new law enforcement sentencing reform group and Prez Obama's engagement

In addition to the Senate's work on SRCA 2015 (basics here and here), the other big sentencing reform news this week has been the emergence of the new group Law Enforcement Leaders to Reduce Crime and Incarceration (basics here), and President Obama's re-engagement with criminal justice reform matters (basics here).  These developments connected on Thursday through events at the White House involving The Marshall Project and well-reported in these pieces:

Excitingly, among the persons involved in all this important activity is FOB (Friend Of Blog) Mark Osler, and Mark late yesterday provided this exclusive insider view for reporting here:

I am one of the 130 members of a new group Doug recently wrote about, the Law Enforcement Leaders to Reduce Crime and Incarceration. That said, I suspect that I am (once again) the admission department's mistake, as nearly all of the others involved were or are now the head of some sort of law enforcement agency. The group includes the current police chiefs for New York, Los Angeles, Chicago, Houston, Washington DC, Dallas, Denver, San Francisco, Seattle, San Diego, Salt Lake City, Milwaukee, Minneapolis, Miami, Fresno, and Richmond (both Virginia and California) along with dozens of other current and former police chiefs, District and U.S. Attorneys, and sheriffs. Each has signed on to a common mission: reducing incarceration while continuing to reduce crime.

At its core, this represents a rejection of what many assume: That more incarceration necessarily and uniformly operates to keep us safe. Those on the front lines of crime-fighting in America's cities now are beginning to reject that idea and move towards more creative and effective techniques such as community policing and mental health treatment.

The public launch of the group this week included discussion sessions and a meeting with President Obama at the White House, coordinated by the Brennan Center.

Over the course of the two days, I was struck by the general unanimity of the group on the core issues of incarceration and crime control. Certainly, there is a recognition among the members that different cities present distinct challenges, and that there is no "one-size-fits-all" solution, yet there is broad agreement that this is the moment to move away from incarceration as a primary metric for success. A man in jail does not always represent a problem solved.

In his remarks, President Obama was focused and surprisingly informed on the state of criminal law at both the state and federal level. It's no secret that these issues have increasingly captured his attention, and he seemed to relish talking about it with an audience partly composed of police chiefs in uniform. Much of what he said was of specific interest to this group; for example, he noted the importance of changing the incentives for prosecutors away from simply obtaining high sentences, and (in response to a question) noted that going forward the collection and use of data is going to only become more important. He also argued that long terms of incarceration offer diminishing returns, even with violent offenders.

He challenged the audience on racial issues, too, saying that the Black Lives Matter movement raises "a legitimate issue that we have to address."

What happens next for this group will be crucial. Its very existence, though, represents a shifting of tectonic plates on the landscape of criminal justice.

October 23, 2015 in Criminal justice in the Obama Administration, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

October 22, 2015

"Heroin as an execution drug?"

The title of this post is the headline of this notable Columbus Dispatch article discussing the legislative conversation starting to emerge in the wake of the recent decision by Ohio Gov Kasich to extend the state's de facto moratorium on executions due the the continuing difficulty securing lethal injection drugs (noted here).  Here are excerpts:

As Ohio continues to struggle to find the drugs needed to carry out executions of death row inmates, the president of the Ohio Senate says it may be time to find other methods.  “If we can’t get the drugs that our protocol calls for, either we need to change our protocols, or we need to think about other solutions,” said Senate President Keith Faber, R-Celina.

“There are a lot of people out there talking about other solutions.  I’ve heard everything from using heroin, to using nitrogen, to going back to the electric chair.  That’s a debate we probably need to have.”

The state's has not executed an inmate since Jan. 16, 2014, when Dennis McGuire struggled and gasped for several minutes before succumbing to a combination of drugs being used for the first time anywhere in the U.S. The state last week canceled all executions for 2016 and there are now 24 inmates with executions scheduled into 2018.

A law that Gov. John Kasich signed in December allowing prison officials to secretly buy lethal-injection drugs from compounding pharmacies has not worked in getting Ohio the necessary drug mixture. Pharmacies have generally been unwilling to participate in a process that leads to little in sales but a potential for harsh blowback from the public if they are discovered.

The federal government has thus far blocked Ohio’s efforts to import the drugs from overseas, though the state continues to seek ways to do that.  Asked if the state would bring back the electric chair known as “Old Sparky,” Faber said, “there are options out there.”

A few prior related posts:

October 22, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (7)

BJS releases big new statistical study on "Federal Sentencing Disparity: 2005–2012"

As detailed at this webpage, the Bureau of Justice Statistics today released a notable new study, excitingly titled " "Federal Sentencing Disparity: 2005–2012," which is described this way:  

Examines patterns of federal sentencing disparity among white and black offenders, by sentence received, and looks at judicial variation in sentencing since Booker v. United States, regardless of race. It summarizes U.S. Sentencing Guidelines, discusses how approaches of other researchers to the study of sentencing practices differ from this approach, defines disparity as used in this study, and explains the methodology.  This working paper was prepared by Abt Associates for BJS in response to a request by the Department of Justice's Racial Disparities Working Group to design a study of federal sentencing disparity.  Data are from BJS's Federal Justice Statistics Program, which annually collects federal criminal justice processing data from various federal agencies. The analysis uses data mainly from the U.S. Sentencing Commission.

The full lengthy study is available at this link, and this one-page summary highlights some of these notable substantive findings:

Racial disparity

In the 8-year period between 2005 and 2012, black men received roughly 5% to 10% longer prison sentences than white men for similar crimes, after accounting for the facts surrounding the case.  While there has been a trend toward more lenient sentences overall, white males have seen larger declines in average prison sentences than black males.  Black males did not benefit as much from this increased leniency, which widened the existing racial sentencing disparity between these two groups.  The disparity between black and white males narrowed as crimes became more serious.  Race probably correlated with other characteristics — such as education, income, demeanor, and location — which might have accounted partially for the differing sentences among white and black males.

Judge effect

The exercise of prosecutorial discretion did not change much during the study period, although racial disparity increased during that time.  The trend is likely attributable to individual judges’ behavior.  Evidence from the study suggests considerable differences in the sentences that judges assigned for white and black offenders.  Judges disagreed about the relative sentences for white and black males, and some judges gave black males especially longer sentences.  However, judges who imposed above-average prison terms on black offenders also tended to impose above-average prison terms on white offenders.  And judges who sentenced white offenders to below-average prison terms also commonly gave below-average prison terms to black offenders.  Sentences were disparate in that similarly situated offenders who had committed similar crimes received sentences that differed depending on the judge who imposed the sentence.

Female sentencing

Judges were found to disagree more about the sentences for females than the sentences to be imposed on males.  As a whole, females and white males received less severe sentences than black males over the 8-year study period.  Black females were found to not be disadvantaged compared to white females.

October 22, 2015 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Race, Class, and Gender | Permalink | Comments (11)

SRCA 2015 passes through Senate Judiciary Committee by vote of 15-5

This press release from Senate Judiciary Committee Chairman Chuck Grassley reports on the continued legislative movement of the Senate's big Sentencing Reform and Corrections Act of 2015 (SRCA 2015, S. 2123).  Here are the basics via the press release:

The Senate Judiciary Committee today passed the Sentencing Reform and Corrections Act, which grants judges greater sentencing flexibility for certain low-level drug offenders and establishes recidivism reduction programs, while targeting violent criminals. The bill passed the committee by a vote of 15-5.  The bill passed today includes minor clarifications to the original bill text.

The bill is the product of a thoughtful bipartisan deliberation led by Senate Judiciary Committee Chairman Chuck Grassley and Assistant Democratic Leader Dick Durbin.  Original cosponsors include Senators John Cornyn (R-Texas), Sheldon Whitehouse (D-R.I.), Mike Lee (R-Utah), Charles Schumer (D-N.Y.), Lindsey Graham (R-S.C.), Patrick Leahy (D-Vt.), Cory Booker (D-N.J.) and Tim Scott (R-S.C.).  Other cosponsors include Senators Thom Tillis (R-N.C.), Chris Coons (D-Del.), Jerry Moran (R-Kan.), Dianne Feinstein (D-Cal.), Jeff Flake (R-Ariz.), Richard Blumenthal (D-Conn.), Al Franken (D-Minn.) and Amy Klobuchar (D-Minn.). 

“Today’s bipartisan Committee vote demonstrates the broad consensus that we can thoughtfully addresses the most serious and complex matters in prison sentencing. This bill preserves sentences necessary to keep violent offenders and career criminals out of our communities while addressing over-incarceration concerns and working to reduce recidivism. I’m grateful for the hard work and support of my colleagues on both sides of the aisle, and look forward to action by the full senate to move this historic reform forward,” Grassley said....

The bill narrows the scope of mandatory minimum prison sentences to focus on the most serious drug offenders and violent criminals, while broadening and establishing new outlets for individuals with minimal non-felony criminal histories that may trigger mandatory minimum sentences under current law.  The bill also reduces certain mandatory minimums, providing judges with greater discretion when determining appropriate sentences, and preserves cooperation incentives to aid law enforcement in tracking down kingpins.    

In addition to reducing prison terms for certain offenders through sentencing reform, qualifying inmates can earn reduced sentences through recidivism reduction programs outlined in the CORRECTIONS Act introduced by Cornyn and Whitehouse. The bill also makes retroactive the Fair Sentencing Act and certain statutory reforms that address inequities in drug sentences.

For more information on the Sentencing Reform and Corrections Act of 2015, see the following documents: 
•    Text of Bill Passed in Committee
•    One-page bill summary
•    Section-by-section

Recent prior related posts on SRCA 2015:

October 22, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

Investigating the international drug dealer working with some death penalty states

BuzzFeed this week published this fascinating report on a curious person who has become a central figure in some states efforts to get their machinery of death up and running again.  The article's full headline highlights why the piece merits a full read: "This Is The Man In India Who Is Selling States Illegally Imported Execution Drugs:  When states ran out of execution drugs, they started paying tens of thousands of dollars to Chris Harris, a salesman in India with no pharmaceutical background."  Here is how the extended article gets started:

Eight thousand miles from the execution chamber at the Nebraska State Penitentiary is Salt Lake City — a planned satellite town in Kolkata, the capital city of India’s West Bengal state.  It’s a modern mecca of swanky office complexes, colleges, shopping malls, and restaurants.  Here, on the eighth floor of a plush glass building overlooking a lake, is an office where Nebraska’s lethal injection drug supplier says he makes his drugs.

A laminated paper sign stuck on the door of room 818 reads “Harris Pharma - manufacturer and distribution.” The office, with powder-blue walls and a frosted glass facade, is one of 61 spaces on the floor rented out to various companies.

This is the facility in India where a man named Chris Harris, a salesman without a pharmaceutical background, claims his manufacturing and distribution business is based. He has sold thousands of vials of execution drugs for corrections officials in the U.S. who are desperate to find drugs to carry out the death penalty.  An employee who works at the facility, however, said the office is not being used to make drugs.

Saurav Bose, a customer relations officer at the office rental company who has met Harris twice since he started working here a few months ago, said Harris did not manufacture drugs in this rented office.  Harris’s office, which was shut on a Tuesday morning when a reporter from BuzzFeed News visited, is much like the other ready-to-use, standardized workspaces available to rent by Regus — an international firm operating in 900 cities across the world, including the more well-known Salt Lake City in Utah.  It appeared highly unlikely that the rented office would accommodate laboratory equipment required to manufacture pharmaceutical drugs.

“He comes only two to three times in a month,” Bose said, adding that most of his communication with Harris was limited to email.  Bose, who described Harris as being “fickle” with his visits to the office, said he rarely had any clients or other people in the office.

BuzzFeed News identified several such inconsistencies after reviewing thousands of pages of court records, emails, and invoices; interviewing his past business partners; and visiting the locations in India from which Harris claims to run his business. BuzzFeed News spent more than four months trying to talk to Harris over emails, via phone calls and during a visit to his office in India.  Each time, Harris refused to talk.

“Quote me on this. I don’t speak to reporters as they always say what is not true,” Harris told BuzzFeed News when first contacted for comment in June.  After months of reporting on his sale to Nebraska, Harris again declined to talk with BuzzFeed News in September, writing, “Do and say what you want. But I will never give a reporter 2 min of my time. As all print what they want. Not the true story. They need a scandal to get sales and keep they jobs.”

BuzzFeed News has been able to confirm four times that Harris sold execution drugs illegally to four death penalty states, and documents indicate there is likely a fifth. His sales follow a typical script: The legal issues are fixed this time, don’t worry about it. Other states are buying it, too. You aren’t the only one. You just need to make it a “minimum order” to make it worth the while. Payment in advance. The documents show little effort by states to investigate Harris’s qualifications or the legalities of importing drugs.

Harris has gotten states to pay tens of thousands of dollars for his drugs, but each time, after concerns were raised over the legality of the purchase, the drugs have gone unused. Somehow, states are still falling for it.

October 22, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (4)

Looking closer at (unexpected?) states investing more in incarceration than higher education

I often worry that some offenders when sent to prison will primarily learn about how to be a better criminal.  For that reason and others, I am troubled when government authorities invest more taxpayer resources sending young adults to correctional institutions than to educational institutions.  That concern is spotlighted by this recent Deseret News article headlined "11 states that spend more on prisons than on colleges." Among other virtues, this article highlights that the list of states investing more in incarceration than higher education is not composed of the "usual" states that get the most criticisms for criminal justice systems (although this may because a lot of those usual states seek to cut so many economic corners in the operation of their prison systems). Here is how the article gets started:

A new report by the American Academy of Arts and Sciences [available here] makes the case that state investment in higher education has fallen dramatically over the past decades.  Many states are now contributing only a small fraction of the cost of "state" colleges and universities.

One finding in particular stood out: There are now 11 states that spend more on prisons than on higher education. It's an arresting factoid, so to speak.  But it could also be deceptive.  To dig into those numbers, we looked at the 11 states on the list, plus four large states that weren't on the list — Louisiana, Texas, Florida and California — as comparisons.

In each, we compared the state to the national average on five measures: incarceration rates, per prisoner spending, higher-education spending per capita in 2013 and the change in higher-education spending per student from 2008-14.  In every case, the numbers are expressed as the percent higher or lower than the national average.

We found that beneath the headline, those 15 states actually were quite varied.  Some clearly underinvest in higher education, while others have high incarceration rates.  Some states balance high incarceration rates by spending very little per prisoner, with troubling policy implications in its own right.  Other states have low incarceration rates but still make the blacklist because they spend more per prisoner while underspending on higher ed.

Some of the states that underspend will surprise you. Reputations do not always match reality.

October 22, 2015 in Data on sentencing, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

Great Supreme Court Fellows opportunity for all current and future sentencing researchers/advocates

Images (3)I was pleased and honored to receive a call yesterday from Office of the Counselor to the Chief Justice of Supreme Court of the United States concerning the Supreme Court Fellows program. Though I have long been aware of this terrific program, I was not surprised to learn that the opportunity to be detailed to the US Sentencing Commission as part of the Fellows program may not be widely known.  These links and information about the program were sent my way by the Counselor's Office to make sure this opportunity gets all the attention (and applicants) that it merits:

Attached [below is ] a flyer describing the Supreme Court Fellows Program.  More information is available on the Supreme Court Fellows Program website, as is the online application.

We are very grateful for your consideration of promoting the opportunity on the Sentencing Law & Policy Blog, and in particular flagging the fellowship placement at the U.S. Sentencing Commission.  As the description of placements indicates, this fellow will participate in professional teams conducting policy, legal, and social science research on the cutting edge of criminal sentencing reform.  The breadth of the Commission’s work and its relatively small size provide the fellow with both a wide-ranging exposure to criminal law and opportunities for active participation in addressing sentencing issues.  One quarter of the fellow’s time will be set aside for research and writing of a publishable scholarly work on a topic in criminal or sentencing law.

We very much appreciate anything you can do to call the fellowship to the attention of strong candidates, as well as others who might help us identify them. Our recruiting is targeted to current or recent law clerks who are exploring careers in academia or public service. The application deadline for 2016-17 fellowships is November 6, 2015.

Download Fellows 2015_Handout

October 22, 2015 in Who Sentences? | Permalink | Comments (1)

Noting the notable decline in death sentences in Texas

A few years ago, I generally considered talk of the "death of the death penalty" to have been somewaht overstated even as a few new states abolished the death penalty and a few other states struggled with executions.  In the past I saw the talk as overstated largely because committed death penalty states like Texas and a few others were still regularly carrying out executions and because most years nationwide still more murderers were getting sentenced to death row than we getting released from death row.  

But now, circa fall 2015, with Arkansas, Ohio and Oklahoma all recently halting scheduled execution plans because of continued lethal injection problems and litigation even after the Glossip ruling, I see more to the talk of the death penalty's demise.  And this notable death penalty administration story out of the Lone Star State, headlined "Texas Poised to See New Low in Death Sentences," provides more reason for justified excitement among death penalty abolitionists. Here are the details:

Texas is on track to see fewer death sentences handed down in 2015 than in any other year since the state’s death penalty was reinstated in 1976. In the past two weeks, two new inmates arrived on Texas’ death row — the state’s first two death sentences of 2015. A jury sentenced a man to death in a third case, but he is awaiting a competency trial, so that sentence is unofficial.

Kathryn Kase, executive director of Texas Defender Services, a nonprofit organization of death penalty attorneys, said that there is one new death penalty trial underway and another case “threatening to go” for a death penalty. “That’s a very low number [of cases] for Texas," Kase said. “We see fewer cases overall going to the death penalty across the country, and that’s no different in Texas.”

In 2011, eight people were sentenced to death in Texas, currently the lowest number for any full calendar year, according to TDCJ. Kase said that there had been three other death penalty cases this year, all ending in sentences of life without parole.

Experts often point to the 2005 introduction of a penalty of life without parole in the state as a reason for the decline in death sentences in recent years. In 2015, however, there has been a drastic drop from even last year, when there were 11 death sentences handed out.

There are many theories on the cause of this year’s drop, including new legislation from 2013 on criminal discovery reform and prosecutors pursuing the death penalty less often, Kase said. “You see prosecutors who are more concerned about innocence, more concerned about intellectual disabilities,” Kase said.

Robert Kepple, executive director of the Texas District & County Attorneys Association, points to a simpler reason for the decrease: a lower crime and murder rate. “We shouldn’t be surprised that death penalty cases are going down when there have been less murders,” Kepple said. “That’s a success story.”

The three death sentences handed down by Texas juries this year were all within the last two weeks. The sentences came 10 months after Eric Williams was sent to death row in December for the 2013 killing of the Kaufman County district attorney's wife, Cynthia McLelland. It was the state’s longest stretch between new death sentences since the death penalty was reinstated, Kase said, adding that the timing of the three cases is “purely coincidental."

October 22, 2015 in Data on sentencing, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

October 21, 2015

"Separation by Bars and Miles: Visitation in state prisons"

SeparationByBarsAndMiles_250The title of this post is the title of this notable new report from the Prison Policy Initiative. This press release about the report provides this overview:

Less than a third of people in state prison receive a visit from a loved one in a typical month [according to] a new report by the Prison Policy Initiative, Separation by Bars and Miles: Visitation in state prisons. The report finds that distance from home is a strong predictor for whether an incarcerated person receives a visit.

“For far too long, the national data on prison visits has been limited to incarcerated parents. We use extensive yet under-used Bureau of Justice Statistics data to shed light on the prison experience for all incarcerated people, finding that prisons are lonely places,” said co-author Bernadette Rabuy, who recently used the same BJS dataset for Prisons of Poverty: Uncovering the pre-incarceration incomes of the imprisoned.

Separation by Bars and Miles finds that most people in state prison are locked up over 100 miles from their families and that, unsurprisingly, these great distances — as well as the time and expense required to overcome them — actively discourage family visits. Given the obvious reluctance of state prison systems to move their facilities, the report offers six correctional policy recommendations that states can implement to protect and enhance family ties. Rabuy explained, “At this moment, as policymakers are starting to understand that millions of families are victims of mass incarceration, I hope this report gives policymakers more reasons to change the course of correctional history.”

October 21, 2015 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (12)

Notable new group advocating for sentencing reforms: Law Enforcement Leaders to Reduce Crime and Incarceration

I was intriguing and pleased to receive this press release this morning, titled "130 Top Police Chiefs and Prosecutors Urge End to Mass Incarceration."  The release explains the creation and commitments of a notable new public policy group.  Here are excerpts from the press release (with links and emphasis from original):

Today 130 police chiefs, sheriffs, prosecutors, and attorneys general from all 50 states join together as a surprising new voice calling for the end to unnecessary incarceration in the U.S. while maintaining public safety.

The new group, Law Enforcement Leaders to Reduce Crime and Incarceration, marks an unprecedented partnership among the nation’s top law enforcement leaders to push reforms to reduce incarceration and strengthen public safety.  At a press conference today in Washington, D.C., police chiefs from six of the largest U.S. cities, including New York, Los Angeles, Chicago, Washington, D.C., Houston, and New Orleans, will announce their policy agenda, featured in a Statement of Principles.

President Barack Obama will host members of the group at the White House tomorrow, where group leaders will speak on why they believe reducing imprisonment while protecting public safety is a vital national goal....

“As the public servants working every day to keep our citizens safe, we can say from experience that we can bring down both incarceration and crime together,” said Law Enforcement Leaders Co-Chair Garry McCarthy, Superintendent of the Chicago Police Department.  “Good crime control policy does not involve arresting and imprisoning masses of people.  It involves arresting and imprisoning the right people.  Arresting and imprisoning low-level offenders prevents us from focusing resources on violent crime. While some may find it counterintuitive, we know that we can reduce crime and reduce unnecessary arrests and incarceration at the same time.”

Members of the group will work within their departments as well as with policymakers to pursue reforms around four policy priorities:

Increasing alternatives to arrest and prosecution, especially mental health and drug treatment. Policies within police departments and prosecutor offices should divert people with mental health and drug addiction issues away from arrest, prosecution, and imprisonment and instead into proper treatment.

Reducing unnecessary severity of criminal laws by reclassifying some felonies to misdemeanors or removing criminal sanctions, where appropriate.

Reducing or eliminating mandatory minimum laws that require overly harsh, arbitrary sentences for crimes.

Strengthening ties between law enforcement and communities by promoting strategies that keep the public safe, improve community relations, and increase community engagement.

“Our decision to come together reflects the deep commitment among law enforcement’s ranks to end unnecessary, widespread incarceration,” said Law Enforcement Leaders Co-Chair Ronal Serpas, former Superintendent of the New Orleans Police Department.  “As leaders of the law enforcement community, we are committed to building a smarter, stronger, and fairer criminal justice system.  We do not want to see families and communities wrecked by our current system.  Forming this new organization will allow us to engage policymakers and support changes to federal and state laws, as well as practices, to end unnecessary incarceration.”

October 21, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)

Evangelical group adds interesting nuance to death penalty stance

As reported in this Christian Science Monitor article, a notable religious group has made a notable change in its death penalty position. The article's headline(s) provide the basics: "Why US evangelicals are changing their position on the death penalty: The National Association of Evangelicals has officially supported the death penalty for more than 40 years. They have now softened their stance." Here are the details:

As the death penalty continues to lose favor with Americans, the National Association of Evangelicals has adjusted its position on the practice.  Since the early 1970s, the NAE has supported capital punishment as a deterrent to criminals.  But on Monday, the organization  — which represents more than 45,000 churches from almost 40 different denominations, serving millions of Americans — passed a resolution that acknowledges growing opposition and differing views on death penalty.

"Evangelical Christians differ in their beliefs about capital punishment, often citing strong biblical and theological reasons either for the just character of the death penalty in extreme cases or for the sacredness of all life, including the lives of those who perpetrate serious crimes and yet have the potential for repentance and reformation," the resolution states. "We affirm the conscientious commitment of both streams of Christian ethical thought."...

White evangelical support for the death penalty has waned recent years, from 77 percent in 2011 down to 71 percent in 2014, according to a March survey from the Pew Research Center.  At the same time, 66 percent of white mainline Protestants and 63 percent of white Catholics favor the death penalty.  Overall, the survey shows American support for the death penalty has dropped from 78 percent in 1996 to 56 percent in 2014.

October 21, 2015 in Death Penalty Reforms, Religion, Who Sentences? | Permalink | Comments (2)

October 20, 2015

"For Offenders Who Can’t Pay, It’s a Pint of Blood or Jail Time"

The title of this post is the headline of this New York Times story of a remarkable local sentencing story out of Alabama.  Here is how the article starts:

Judge Marvin Wiggins’s courtroom was packed on a September morning. The docket listed hundreds of offenders who owed fines or fees for a wide variety of crimes — hunting after dark, assault, drug possession and passing bad checks among them.

“Good morning, ladies and gentlemen,” began Judge Wiggins, a circuit judge here in rural Alabama since 1999. “For your consideration, there’s a blood drive outside,” he continued, according to a recording of the hearing. “If you don’t have any money, go out there and give blood and bring in a receipt indicating you gave blood.”

For those who had no money or did not want to give blood, the judge concluded: “The sheriff has enough handcuffs.”

Efforts by courts and local governments to generate revenue by imposing fines for minor offenses, particularly from poor and working­class people, have attracted widespread attention and condemnation in recent months. But legal and health experts said they could not think of another modern example of a court all but ordering offenders to give blood in lieu of payment, or face jail time. They all agreed that it was improper.

October 20, 2015 in Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions | Permalink | Comments (7)

Federal judge decides (finally!) that Congress has limited DOJ prosecution of state-legal marijuana businesses

As regular readers may recall, Section 538 of a spending bill passed late last year by Congress forbids the use of money by the Department of Justice to interfere with State laws implementing medical marijuana programs.  The meaning and application of this federal spending limitation on DOJ has been the subject of much dispute and some notable litigation, and yesterday brought a big ruling by US District Judge Charles Breyer.  This article from California, headlined "Major victory for marijuana dispensary in federal court," provides the details:

Lawful medical cannabis operators across America scored a major victory in federal court [after] United States District Judge Charles R. Breyer ordered the lifting of an injunction against one of California’s oldest lawful dispensaries, the Marin Alliance for Medical Marijuana.

Judge Breyer ruled that newly enacted Congressional law — the Rohrabacher-Farr Amendment — prevents the government from prosecuting the Fairfax-based Marin Alliance for Medical Marijuana, and its founder Lynette Shaw. The ruling in the United States District Court for the Northern District of California will have far-reaching legal impact, attorneys say....

In December, Congress de-funded the Justice Department’s war on medical marijuana in the states. Howver, the Justice Department has been narrowly interpreting Congressional law to continue the crackdown. The law’s authors contend Justice is breaking Congressional law by going after state-legal cannabis activity.

In June, Shaw’s attorney Greg Anton motioned for the Court to dissolve the injunction against Shaw, citing the new Rohrabacher-Farr Amendment (Section 538). Judge Breyer ruled, “the plain reading of [Congressional law] forbids the Department of Justice from enforcing this injunction against MAMM to the extent that MAMM operates in compliance with state California law.”

Judge Breyer ruled WAMM had been complying extensively with state law. “The mayor of the Town of Fairfax [stated] MAMM was operating as a model business in careful compliance with its local use permit in a ‘cooperative and collaborative relationship’ with the community,” Breyer noted in his ruling.

Judge Breyer’s ruling hands a shield to every state-legal pot shop facing federal action, lawyers state. It sets a precedent that will likely chill federal prosecutors eyeing state-legal medical cannabis enterprises, said the law office of attorney Robert Raich, through a spokesperson.

“We finally have a federal judge who is taking the authors of the spending amendment seriously when they say the intent and its wording should be interpreted so that the federal government should not be spending resources prosecuting individuals complying with state law.”

It represents a major setback for the Department of Justice, which had hoped Rohrabacher-Farr would be interpreted far more narrowly.

The full ruling by Judge Breyer is available at this link.

Some previous related posts:

October 20, 2015 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Arkansas Supreme Court stays execution to allow lethal injection litigation

As reported in this AP article, a partial ruling in favor of the state today by the top court in Arkansas was insufficient to allow the state to move forward with a number of scheduled executions. Here are the details:

The Arkansas Supreme Court ruled Tuesday that a lower-court judge overstepped his jurisdiction by halting the executions of eight death row inmates. But the high court immediately granted its own stay to give the inmates time to challenge a new state law that bars Arkansas from disclosing its execution-drug supplier.

The justices sided with the state in agreeing to toss this month's order by Pulaski County Circuit Judge Wendell Griffen. Still, Attorney General Leslie Rutledge said she was disappointed that the executions, the first of which was scheduled for this week, remained on hold. "While the Supreme Court's decision is not about the merits of the case, it is unfortunate that this further delays justice for the victims. I will continue to defend Arkansas's lethal injection statute and fight for the victims and their grieving families," Rutledge wrote in a statement Tuesday.

The high court also refused to order Griffen to schedule an earlier hearing in the case. He set the next hearing for March, just months before one of the state's execution drugs is set to expire. The attorney general's office had asked for a faster timetable, arguing that defense attorneys were trying to delay the case until the drug was no longer usable.

The prisoners are challenging the constitutionality of the state's new secrecy law, saying they need information about where and how the state's execution drugs were made to determine whether they will lead to cruel and unusual punishment. They also argue that the law violates a settlement in an earlier lawsuit that guaranteed inmates would be given the information, but the state has said the agreement was not a binding contract.

The inmates also are challenging Arkansas' three-drug execution protocol, focusing on the use of the drug midazolam. The sedative was implicated after inmates gasped and groaned during longer-than-expected executions in Oklahoma, Ohio and Arizona. "We realize there is a lot of litigation yet lying in front of us. But we feel the decision of the Supreme Court was the appropriate decision in this case," said Jeff Rosenzweig, an attorney for the inmates. "The state made a binding commitment to provide us with this information and we are entitled to this information."

October 20, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Dismantling the School-to-Prison Pipeline: Tools for Change"

The title of this post is the title of this notable new article by Jason Nance available via SSRN. Here is the abstract:

The school-to-prison pipeline is one of our nation’s most formidable challenges. It refers to the trend of directly referring students to law enforcement for committing certain offenses at school or creating conditions under which students are more likely to become involved in the criminal justice system such as excluding them from school.

This article analyzes the school-to-prison pipeline’s devastating consequences on students, its causes, and its disproportionate impact on students of color.  But most importantly, this article comprehensively identifies and describes specific, evidence-based tools to dismantle the school-to-prison pipeline that lawmakers, school administrators, and teachers in all areas can immediately support and implement.  Further, it suggests initial strategies aimed at addressing racial implicit bias, which is a primary cause of the racial disparities relating to the school-to-prison pipeline.  The implementation of these tools will create more equitable and safe learning environments that will help more students become productive citizens and avoid becoming involved in the justice system.

October 20, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Ohio Gov Kasich extends de facto execution moratorium into 2017

Ohio-executionEarlier this year during SCOTUS oral argument in the Glossip lethal injection case, Justice Alito complained about what he saw as a "guerrilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment." For anyone inclined to accept that characterization, today brings news that the warriors have scored another significant victory.  This new AP piece, headlined "Ohio delays executions until 2017 over lack of lethal drugs," provides the basic details:

Ohio is putting off executions until at least 2017 as the state struggles to obtain supplies of lethal injection drugs, delaying capital punishment for a full two years, the prisons department announced Monday. Execution dates for 11 inmates scheduled to die next year and one scheduled for early 2017 were all pushed into ensuing years through warrants of reprieve issued by Gov. John Kasich.

The result is 25 inmates with execution dates beginning in January 2017 that are now scheduled through August 2019. Ohio last put someone to death in January 2014.

Ohio has run out of supplies of its previous drugs and has unsuccessfully sought new amounts, including so-far failed attempts to import chemicals from overseas. The new dates are needed to give the prisons agency extra time, the Department of Rehabilitation and Correction said in a statement.

The agency “continues to seek all legal means to obtain the drugs necessary to carry out court ordered executions, but over the past few years it has become exceedingly difficult to secure those drugs because of severe supply and distribution restrictions,” the statement said....

The next execution was scheduled for Jan. 21 when Ronald Phillips was to die for raping and killing his girlfriend’s 3-year-old daughter in Akron in 1993. Phillips’ execution was rescheduled for Jan. 12, 2017.

The handwriting has been on the wall for months that Ohio would have to make such a move, said Franklin County Prosecutor Ron O’Brien, expressing his frustration at a new set of delays. These delays come in cases where inmates have long exhausted their appeals and there’s no question of their guilt, he said. “It seems that in those states that authorize assisted suicide, there has been no impediment to securing drugs, and as time marches onward, victims wonder why they must continue to wait for justice,” O’Brien said in an email.

Ohio abandoned the two-drug method after McGuire’s execution and announced it would use either of two older drugs that it had previously obtained for capital punishment, but did not currently have supplies of. One of those drugs, sodium thiopental, is no longer manufactured by FDA-approved companies and the other, pentobarbital, has been put off limits for executions by drug makers.

Ohio obtained a federal import license to seek supplies overseas, but has been told by the FDA that such a move is illegal. Ohio raised the issue again with the FDA earlier this month, asserting the state believes it can obtain a lethal-injection drug from overseas without violating any laws. The FDA has yet to respond. 

A few prior related posts:

October 20, 2015 in Baze and Glossip lethal injection cases, Clemency and Pardons, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

October 19, 2015

"Why Arrest?"

The title of this article is the title of this interesting new article by Rachel Harmon I just noticed on SSRN. Here is the abstract:

It is no exaggeration to say that arrests are the paradigmatic police activity. While many debate the necessity of particular arrests, neither participants in the criminal justice system nor contemporary critics have seriously considered whether law enforcement – as a general matter - requires arrests.

This essay challenges the long-held assumption that, even if not every arrest is legitimate, arrests as a general matter are worthwhile because they are critical to law enforcement goals. As recent news events have suggested, arrests are more harmful than they first seem, not only to the individuals arrested but also to their families and to society as a whole.

More importantly, our traditional justifications for arrests - starting the criminal process and maintaining public order – at best support a much more limited practice of arrest than we currently permit. Overwhelmingly, arrests can be replaced with alternatives, even for serious crimes, and neither public safety nor public order will likely much suffer. As a result, whether or not arrests are fairly imposed on individuals, contemporary arrest practice is illegitimate because the coercion it involves is largely unnecessary.

October 19, 2015 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Submitted testimony from witnesses at SRCA 2015 hearing (and member statements) now available

As I continue to enjoy watching the still on-going big Senate hearing on the remarkable Sentencing Reform and Corrections Act of 2015 (SRCA 2015, S. 2123), I now have noticed that all the written testimony is available on-line.  Here are links to member statements all the submitted testimony, and I would be grateful to get help in figuring out if there is anything especially notable and interesting in all these materials.  My sense is that all the usual suspects are repeating their usual claims and viewpoints, but perhaps there may be some special needles in this testimonial haystack:

October 19, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Who Sentences? | Permalink | Comments (12)

New York Times editorial rightly frames debate over federal judges' expungement power

Regular readers may recall this recent post highlighting the interesting (and hip?) legal issue arising in federal court lately concerning the inherent power of federal judges to expunge a federal conviction.  This effective New York Times editorial, headlined "How to Get Around a Criminal Record," spotlights some of the unfortunate reasons this legal issue is now coming up for debate.  Here are excerpts: 

In May, a federal judge in Brooklyn took the extraordinary step of expunging the conviction of a woman he had sentenced to five years of probation more than a decade earlier for her involvement in an insurance fraud scheme that netted her $2,500.... The move was significant because there is no federal law that allows for expungement — the permanent sealing of a criminal record to the general public....

Some 70 million to 100 million people in the United States — more than a quarter of all adults — have a criminal record, and as a result they are subject to tens of thousands of federal and state laws and rules that restrict or prohibit their access to the most basic rights and privileges — from voting, employment and housing to business licensing and parental rights.  Some of these collateral consequences make sense — like preventing people convicted of molesting children from working in schools.  But many have no relation at all to the original offense.

The woman whose record Judge Gleeson expunged was hired repeatedly for social-work or health-care jobs, and then fired after employers ran a background check.  As the judge wrote, it is “random and senseless” that her “ancient and minor offense should disqualify her from work as a home health aide.”

The federal government lags far behind in reducing the burdens of a conviction. About half the states allow some convictions to be expunged; almost all allow expungement for arrest records and other non-conviction records.  Some expungements are automatic, while others require a petition to the court.  Of course, expungement is not a cure-all. The vast majority of employers now run background checks, many using error-strewn databases that often fail to delete sealed records.

A better, increasingly popular approach is a “certificate of rehabilitation,” which state judges issue as a way of removing certain restrictions and encouraging employers and others to take a chance on someone despite his or her record.

Another solution is the executive pardon, which restores rights lost after a conviction. Pardons were once a common method of relief from injustice, and some state governors still use it vigorously.  Gov. Jack Markell of Delaware has issued almost 1,600 pardons in six years.  But President Obama, like his recent predecessors, has almost entirely abandoned the practice.

Mr. Obama’s former attorney general, Eric Holder, understood the importance of giving people with criminal records a better chance at finding jobs and regaining their foothold in society. And yet the Justice Department is reflexively fighting Judge Gleeson’s expungement order, calling it “judicial editing of history.”

If the White House or Congress made a real effort to alleviate the crippling consequences of criminal records — by increasing pardons, or passing laws to give courts more options to lessen or remove those burdens — there would be no need for judges to play the role of editors.

Some prior related posts:

October 19, 2015 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Michigan arrest data highlight diverse impact of local decriminalization and continued impact of state-level marijuana prohibition

This new local article, headlined "Michigan pot arrests are trending up, and 8 other points about marijuana," provides data that reinforce my concern that modest marijuana reforms do not really change the basic realities of how marijuana prohibition impacts individuals in various communities.  Here are some of the notable data details:

At a time when surveys indicate a majority of Michigan residents support legalizing pot, arrests for marijuana possession or use are increasing — even as arrests for other crimes are going down, according to data collected by the Michigan State Police.  Between 2008 and 2014, arrests for marijuana possession or use went up 17 percent statewide, that data shows, while arrests for all crimes dropped by 15 percent.

One possible reason: Federal health surveys indicate marijuana is the most commonly used illicit drug, and the number of regular users has been increasing.  In 2013, about 7.5 percent of Americans age 12 or older had used marijuana in the past month, according the 2015 federal Survey on Drug Use and Health.

Below are other highlights from the Michigan arrest data, which was collected by the State Police from local and county enforcement agencies.

1. The vast majority of marijuana arrests are for possession or use.

In 2014, there were 20,483 arrests for marijuana use or possession, which was 86 percent of all marijuana arrests.  About 10 percent of the other arrests are for selling the drug, and the remainder are for "producing" the drug, smuggling or "other."  Arrests related to marijuana are about two-thirds of all drug arrests in Michigan and in 2014 were 9 percent of all criminal arrests.

2. A disproportionate number of those arrested for marijuana-related crimes are between the ages of 18 and 24.

About 43 percent of those arrested in 2014 for marijuana were age 18 to 24. The breakdown for other age groups: 26 percent were age 25 to 34; 11 percent were age 35 to 44; 9 percent were under 18; 7 percent were age 45 to 54, and 3 percent were sage 55 or older.  The federal drug survey indicates that marijuana use is highest among young adults.  In fact, 24 percent of male and 17 percent of female female full-time college students age 18 to 22 use marijuana, the survey shows.

3. The vast majority of those arrested in marijuana cases are men. 

Men comprised 83 percent of marijuana arrests in 2014, which is disproportionate compared to their rate of usage.  About 9.7 percent of American males age 12 and older are users of marijuana compared to 5.6 percent of women, according to a 2013 federal survey on drug use.  That means men are 1.7 times more likely to use marijuana, but are five times more likely to be arrested on marijuana charges.

4. African-Americans are a disproportionate number of marijuana arrests.

An African-American in Michigan was three times more likely to be arrested in 2014 for violating marijuana laws compared to a white person, although surveys and research indicate little difference between usage rates between the two groups.  In all, African-Americans comprise about 14 percent of Michigan's population, but 35 percent of marijuana arrests....

6. Since 2011, 21 Michigan cities have voted on legalizing or decriminalizing marijuana....

7. Decriminalization initiatives have had mixed impact on arrests in those communities.

Six communities — Detroit, Grant Rapids, Lansing, Kalamazoo, Flint and Ypsilanti — passed decriminalization initiatives before 2014.  Based on arrests in those cities for marijuana use or possession in 2011 compared to 2014, the initiatives had mixed impact.

The most dramatic changed occurred in Grand Rapids, where arrests for marijuana use or possession dropped from 952 in 2011 to 93 in 2014.  The numbers also dropped significantly between 2011 and 2014 in the city of Kalamazoo, from 327 to 166.  In Detroit, arrests dropped from 1,297 to 974 during the three-year period.

Arrests for marijuana use or possession actually went up in Lansing and Ypsilanti.  Lansing had 73 arrests for marijuana use or possession in 2011, compared to 79 in 2014. In Ypsilanti, arrests went from 74 to 88 during that time frame.

Cross-posted at Marijuana Law, Policy & Reform, where these additional recent posts may be of interest to sentencing fans:

October 19, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (1)

"13 Words That Could Mean Freedom for Many: The debate over the federal ‘residual clause’"

The title of this post is the headline of this effective Marshall Project piece discussing some of the sentencing guideline fall out of the Supreme Court's Johnson ACCA vagueness ruling.  I recommend the full piece, which starts this way (links from original):

Erskine Smith was 24 when he pleaded guilty to selling cocaine in Pittsburgh. Before the plea, a letter from the government estimated his sentence at 108 months to 135 months, or about nine to 11 years.  But once he pleaded guilty, Smith received a presentence report that floored him: the report set the sentence at a mandatory 292 months to 365 months, or about 24 to 30 years.  A judge sentenced him in 1993 to 30 years in prison.

The primary reason for the extra years: Two prior “crimes of violence” that the court agreed made Smith a career offender.  Smith had punched a man at age 18 and assaulted another in his hotel room at 20.  Each conviction was for simple assault, a Pennsylvania misdemeanor, for which he served no jail time.  But the federal government classified the crimes as violent felonies, a designation that meant Smith would be sentenced under the career offender guideline of the Federal Sentencing Guidelines, which boosts sentences for people who have previously been convicted of two violent or drug felonies.

Each year, about 2,000 people are sentenced under the career offender guideline. For about three-quarters of them, the most recent crime is drug-related.  Though the sentencing guidelines have been advisory since 2005, experts say judges still tend to rely on them.  Federal non-career drug offenders get an average of nearly 69 months, while career drug offenders get an average of nearly 169 months, according to data from 2005 to 2014 analyzed by the Federal Defenders.

But a June Supreme Court ruling may get some of them, including Smith, a new sentence. In Johnson v. United States, the Court struck down the the less-than-sexily named “residual clause” of the Armed Career Criminal Act, deciding it was unconstitutionally vague.  Because of the decision, many people sentenced under the Armed Career Criminal Act will get at least five years knocked off their sentence.

The same clause appears in the career offender guideline, and defense lawyers are hoping it will meet the same fate.  They are now asking federal appellate courts to apply Johnson to the career offender guideline and resentence long-serving prisoners who have not benefited from recent, more publicized, reforms.

Some prior related posts:

October 19, 2015 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

An ever-growing list of notable witnesses for Senate hearing on Sentencing Reform and Corrections Act of 2015

As noted in this prior post, this week is a big one for consideration of the Senate's remarkable Sentencing Reform and Corrections Act of 2015 (SRCA 2015, S. 2123).  The fun starts this this afternoon with this big hearing on the bill before the full Senate Judiciary Committee.  I am quite excited for this hearing, in part  because everytime I check the official Senate hearing page, I see another interesting witness added to the witness list.  As of Monday morning, here is the current roster of witnesses slated to testify:

I am very interested to hear what all nine of these notable witnesses have to say about SRCA 2015. Based on prior lectures and writings, I think I can safetly predict that three or four of these witnesses will be quite supportive of most or all of the bill, and that two or three of these witnesses will be quite critical of most or all of the bill. But I am unsure whether traditional supporters of federal sentencing reform will be advocating for SRCA 2015 to be even more expansive in its reforms and whether traditional critics of federal sentencing reform will assail all or only specific parts of SRCA 2015 in its current (complicated) form.

I am cautiously hopeful that there will be some submitted written testimony that I can share in a future post. Even before hearing any of the coming advocacy for and against the bill, the very fact that the witness list for this hearing is so long reinforces my sense (and fear) that passage of a big reform bill through both house of Congress remains an uphill and uncertain battle for reform advocates.

Recent prior related posts on SRCA 2015:

October 19, 2015 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (4)

October 18, 2015

Sex offenders in San Diego sue over strict Halloween rules

As reported in this Los Angeles Times article, headlined "Halloween rules to protect children violate sex offenders' rights, lawyer says," another season of spooks and sex offender restrictions is bringing another round of suits.  Here are the basics:

As a safety precaution, state authorities have imposed Halloween restrictions on sex offender parolees, barring them from putting up decorations or passing out treats. And in San Diego County, they are required to post signs outside their homes discouraging trick-or-treaters from approaching.

A lawyer and activist from Santa Maria, Calif., wants to change that. She filed a lawsuit last week in San Diego federal court on behalf of an unidentified Chula Vista man, accusing the state of violating his rights and those of other registered sex offenders.

"For them, Halloween truly is a night of horrors," said Janice Bellucci, who also is president and founder of California Reform Sex Offender Laws. The organization is "dedicated to protecting the U.S. Constitution by restoring the civil rights of individuals required to register as sex offenders in California," according to court documents.

Bellucci said many parolees don't know how officers are going to interpret the special conditions on Halloween night. She said she's received calls from people with concerns that they might be violating parole if they turn on the porch light for a visiting relative or if they post a pumpkin drawing on the refrigerator created by one of their own children. "They don't know truly what is required of them," Bellucci said....

For more than 20 years, the department has run what it calls Operation Boo, a statewide Halloween night event in which parole officers and other law enforcement conduct compliance checks on known sex offenders. The goal is to make sure that sex offender registrants aren't attracting children to their homes....

According to the lawsuit, requiring parolees to post signs on their front doors encourages speech in violation of their 1st Amendment rights. It also invites harm to themselves, the people they live with and their property by forcing parolees to "advertise" their status as registered sex offenders.

Bellucci contends in the suit that state authorities enforce the Halloween policy in an "arbitrary and unreasonable manner," taking no account of the age of a sex offender's conviction or whether it involved a crime against a child.... Bellucci has filed similar lawsuits against the cities of Simi Valley and Orange over Halloween restrictions on registered sex offenders — "registered citizens," as she prefers to call them — including mandatory sign requirements. She said officials repealed the laws and the suits were dismissed.

Last year, parole agents arrested 62 of the 1,294 sex offender parolees who were contacted during Halloween night compliance sweeps throughout the state. The arrests were on charges of possession of child pornography, narcotics, weapons and other parole violations, state authorities said.

October 18, 2015 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing | Permalink | Comments (6)

Referendum on legislative death penalty appeal now officially on Nebraska ballot for 2016

Images (2)As reported in this local article, headlined "Death penalty supporters put repeal on hold till 2016 vote," Nebraska is going to be the locus and focus for a lot of death penalty debate over the next year. Here is why:

A pro-death penalty group has submitted enough valid signatures to postpone the repeal of capital punishment and place a referendum on the issue on the November 2016 ballot, it was confirmed Friday.

Nebraska Secretary of State John Gale said Friday that he has sent letters certifying the success of the petition drive mounted by Nebraskans for the Death Penalty, a group backed by Gov. Pete Ricketts.

The group launched a signature drive in June shortly after the Nebraska Legislature overrode a veto by Ricketts to abolish the death penalty in the state.

Gale said the petition drive had not only submitted enough signatures to force a vote on the issue during the 2016 general election, but also to postpone the repeal until that vote is taken. “More than 143,000 signatures were verified to our office from counties where signatures were collected, which was more than enough to meet each of those thresholds,” Gale said in a press release.

Chris Peterson, a spokesman for the pro-capital-punishment group, said in a press release that the campaign to retain the death penalty has begun. “Our message is simple: the death penalty is an appropriate punishment for the most heinous of murders, it protects public safety officers from criminals who otherwise have nothing to lose by murdering a corrections officer, and is a worthwhile deterrent if it saves even a single life,” Peterson said.

Dan Parsons, a spokesman for the anti-death-penalty coalition Nebraskans for Public Safety also issued a statement. “Nebraska voters will have the same opportunity the Legislature did to have a thoughtful discussion on whether to bring back a failed system that hasn’t been used in nearly two decades, is not a deterrent, and is a waste of taxpayer dollars,” Parsons said.

As a result of Friday’s announcement, the death penalty remains on the books, according to Nebraska Attorney General Doug Peterson, who also issued a press release. But the state still lacks the necessary drugs to carry out a lethal injection execution. Even if the state could obtain the drugs, legal scholars have expressed doubt that the Nebraska Supreme Court would approve a death warrant pending the Nov. 8, 2016, vote....

Ricketts issued a statement Friday after the verification: “Nebraskans continue to tell me that the death penalty is an important public safety tool. Today’s announcement takes us one step closer to giving the voters a say in retaining the death penalty.”

One thing that could prevent a vote on the issue would be a court order, and death penalty opponents have filed two lawsuits in an attempt to do that. One of the lawsuits claims that Ricketts should have been listed as an official sponsor of the petition drive because he was a major financier of the effort, contributing $200,000.... The second lawsuit maintains that the ballot language approved by the Nebraska Attorney General’s office was misleading and slanted.

October 18, 2015 in Death Penalty Reforms, Elections and sentencing issues in political debates, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Prez Obama talking again about talking some more about criminal justice reform

As reported in this USA Today piece, headlined "Obama launches criminal justice tour: 'Something I’ll keep fighting for'," President Obama devoted his weekly radio address Saturday morning to talking about his plans to travel the nation and talk more about criminal justice reform. Here are the basics:

President Obama said Saturday that he'll launch a nationwide criminal justice tour next week, an effort that he says will "highlight some of the Americans who are doing their part to fix our criminal justice system."

"Much of our criminal justice system remains unfair," Obama said in his weekly radio address Saturday morning. "In recent years, more of our eyes have been opened to this truth. We can’t close them anymore. And good people, of all political persuasions, are eager to do something about it."

The first stop in the tour will be in Charleston, W.Va. next Wednesday, where he'll host a town-hall-style meeting on the prescription drug abuse and heroin epidemic.The White House says Obama will talk about local, state and federal efforts as well as private sector initiatives addressing the crisis. Obama said he'll also meet in coming weeks with police chiefs and former prisoners. Details on those tour stops are expected to be released next week.

In his radio address, Obama threw his support behind bipartisan proposals in Congress to shorten mandatory minimum sentences for low-level drug offenses and reward convicts who participate in prison programs with shorter sentences.

I am always pleased when the leader of our nation brings attention to the criminal justice reform issues that are the focus of my professional work. But I remain frustrated that Prez Obama seems to continue to be content to talk about the need for more action rather than actually take more action.

In addition to lots more clemency grants (especially because he remains way behind all modern presidents on pardons), Prez Obama could create more task forces to examine existing evidence on the most successful local and state-level reforms. In particular, with all the continuing local and state-level marijuana reform activity, I think it is long overdue for Prez Obama to show some leadership in this criminal justice reform space through some significant executive action.

October 18, 2015 in Clemency and Pardons, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (2)