« November 1, 2015 - November 7, 2015 | Main | November 15, 2015 - November 21, 2015 »

November 14, 2015

"Is Deterrence Relevant in Sentencing White-Collar Defendants?"

The question in the title of this post is the title of this notable new article authored by Peter Henning and now available via SSRN. Here is the abstract:

This article is part of the Wayne Law Review symposium “Sentencing White-Collar Defendants: How Much Is Enough?” held in October, 2014.  The article looks at the primary justification for imposing punishment on a defendant convicted of a crime, which is deterrence of both the individual who committed the offense (special deterrence) and others similarly situated who will be dissuaded from pursuing similar misconduct (general deterrence). White-collar crimes are different from traditional street crimes, both in the type of conduct involved and the nature of the perpetrators.

One would expect that well-educated individuals, the type of person who commits a white-collar crime, would be easily deterred from violations because of the penalties suffered by others and knowledge of the consequences that is communicated through sentences imposed on others in the same industry or profession.  This article considers whether that message is heard because most white-collar offenses occur in seemingly unique circumstances, at least from the defendant’s point of view, and the person rarely expects to be caught, or may even believe that the conduct is not a crime.

The real value of deterrence is in keeping judges from succumbing to the impulse to view white-collar defendants as offenders who, having many good qualities, should not suffer any significant punishment.  Deterrence does not so much stop future crimes but acts as a means to inform judges about the need to impose punishments that do not let white-collar defendants use their social status and other resources to avoid the consequences of violations.

November 14, 2015 in Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (4)

November 13, 2015

Washington state prosecutors (wisely?) hoping for direction from a death-penalty referendum

This local AP article, headlined "Washington prosecutors want death-penalty referendum," reports that a number of notable executive branch officials are hoping a referendum vote might provide some clarity on how to approach the ultimate punishment. Here are the details:

The Washington Association of Prosecuting Attorneys issued a statement Thursday saying prosecutors “overwhelmingly believe that the people of the state should vote on the question of whether the state should retain the death penalty as an option in cases of aggravated murder.”

The death penalty has been on hold in Washington state since last year, when Gov. Jay Inslee issued a moratorium for as long as he’s in office. Nine men are now on death row in Washington state.

King County Prosecutor Dan Satterberg said a public vote would tell prosecutors “one way or the other” how Washingtonians feel about the death penalty. The impetus for the prosecutors’ action, according to an email from Tom McBride, executive secretary of the association, were the jury decisions in the murder cases involving the killings of a Carnation family in 2007 and a Seattle police officer in 2009.

In the Carnation case, Michele Anderson is accused of joining her then-boyfriend Joseph McEnroe in killing six members of her family. McEnroe was convicted of participating in the killings and sentenced in May to life in prison after the jury could not agree on the death penalty. In July, Satterberg said his office would not seek the death penalty against Anderson, an announcement made after Christopher Monfort was sentenced to life in prison for killing Officer Timothy Brenton.

The lack of pending death-penalty cases provides “a window where we don’t have to think through” immediate impacts, McBride said in his email, noting that the group’s Thursday statement had almost “unanimous support from elected prosecuting attorneys who both support and oppose the death penalty.”

Rep. Reuven Carlyle, D-Seattle, said the prosecutors’ statement is a “really important and momentous step forward” in public conversation over the law. But Carlyle, who has sponsored bills to ban the death penalty, said he believes any change should come from the Legislature. There’s a lot of complexity surrounding a change in the law, he said, and a public referendum would spur an expensive and difficult campaign....

Death-penalty cases in Washington are still being tried and continue to work through the system. Inslee’s moratorium means that if a death-penalty case comes to his desk, he will issue a reprieve, which means the inmate would stay in prison rather than face execution. In response to the prosecutors’ Thursday statement, Jaime Smith, spokeswoman for Inslee, called the death-penalty debate an important one. She added that “The governor made clear his reasons for enacting a moratorium and his support for a discussion among legislators and the people.”

Since 1981, most death-penalty sentences in Washington have been overturned and executions rare, according to the prepared remarks of Inslee’s 2014 moratorium announcement. “When the majority of death-penalty sentences lead to reversal,” Inslee said in the remarks, “the entire system itself must be called into question.”

November 13, 2015 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Alternative Courts and Drug Treatment: Finding a Rehabilitative Solution for Addicts in a Retributive System"

The title of this post is the title of this new paper by Molly Webster now available via SSRN. Here is the abstract:

Sentencing drug crimes and treating drug-addicted defendants often stem from contradictory theories of punishment. In the late twentieth century, courts traded rehabilitation for retributive ideals to fight the “War on Drugs.” However, beginning with the Miami-Dade Drug Court, treatment and rehabilitation have returned to the forefront of sentencing policy in traditional and alternative drug courts.

Jurisdictions have implemented a variety of policies designed to treat addiction as opposed to punishing it. Community courts, such as the Red Hook Community Justice Center in Brooklyn, New York, community-panel drug courts, such as the Woodbury County Community Drug Court in Iowa, and Hawaii’s Opportunity Probation with Enforcement represent efforts to address treatment within the court system. This Note argues that certain policies are more likely to benefit drug-addicted defendants than others, including procedural justice, predictable sanctions, and an increased focus on treatment. It also posits that qualitative studies measuring long-term success of drug treatment programs should be commissioned to ensure that drug courts utilize the most effective treatment policies that promote rehabilitative ideals.

November 13, 2015 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (2)

November 12, 2015

Federal prosecutors seeking plea-deal max sentence of 12.5 years for Jared Fogle

As reported in this local article, headlined "Prosecutor to ask court to sentence Jared Fogle to 12.5 years," the feds have filed their sentencing recommendations in the child sex prosecution of former Subway pitchman Jared Fogle. Here are some of the details via the press report:

A court filing by prosecutors in advance of Jared Fogle's sentencing next Thursday tells the judge she must send a message to others involved in child exploitation.  Fogle, the former Subway pitchman, has agreed to plead guilty to two counts: possession of child pornography and traveling across state lines to engage in sex with a minor.

The prosecutor is asking U.S. District Judge Tanya Walton Pratt to sentence Fogle to 12-1/2 years in prison, followed by a lifetime of supervised probation.  That was the maximum sentence the U.S. Attorney had agreed to seek in a plea bargain struck with Fogle in August.  Fogle faced a maximum sentence on the two federal felony charges of 50 years.  The judge has discretion to sentence Fogle to more or less than what the prosecution has requested.

"Persons with a sexual attraction to young children may be difficult to deter, but these sentences matter," the document said.  "These offenders frequently communicate with each other online and they are concerned about the law enforcement efforts. "In many ways, the results of these cases help to deter and teach by example.  There is no avoiding the point that, whatever the result, in this matter, it will be closely watched by current and potential offenders who have not yet been identified."

The document said that Fogle "repeatedly expressed sexual fantasies concerning children to multiple persons," but despite exhaustive investigation, "no victims under the age of 18 years could be specifically identified from those victims already charged in this case."  Prosecutors have identified 14 victims.  Prosecutors said in the filing that they were trying to prevent more trauma to the victims in a high-profile case that has already caused "substantial anguish."

"A public trial would only have made this process of healing even more protracted and difficult, without changing the outcome," the filing said. Among the new information in the court filing:

• Fogle paid for sex from adults "on hundreds of occasions."

• Some of the commercial child pornography he had, which prosecutors believe was produced in Eastern Europe, included actual or simulated sexual intercourse by children as young as 6.

• Russell Taylor, former head of Fogle's foundation, who has also agreed to plead guilty to child porn charges, gave minors drugs, alcohol and money to induce them into sex acts. Two of the minors were 14 years old.

Taylor will be sentenced Dec. 10. In his case, prosecutors agreed not to seek a sentence of more than 35 years in prison.  Taylor agreed not to ask for less than 15 years in prison.

The new court filing said that Fogle rationalized his viewing of child porn made by Taylor. Because Taylor was going to secretly produce the material anyway, "he might as well benefit from the production by seeing the results, which interested him."

Prosecutors noted that Fogle had a "good childhood" and that his wife, who has filed for divorce, "had no idea he was doing any of these things."

Prior related posts:

November 12, 2015 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)

"Who Gets Time for Federal Drug Offenses? Data Trends and Opportunities for Reform"

The title of this post is the title of this notable new data analysis from The Urban Institute.  Here are snippets from the start and end of the short and reader-friendly report:

Almost half (45 percent) of the 95,305 individuals in federal prison for drug offenses are in the lowest two criminal history categories, indicating minimal prior convictions and a low risk of recidivism.2 In fact, over one-quarter (26 percent) have no prior criminal history.

Further, over three-quarters of all individuals in federal prison for drug offenses have no serious history of violence before the current offense. More than half have no violent history, and nearly a quarter have minor histories of violence, such as a simple assault and other crimes that do not typically lead to serious injury....

At the end of the FY 2014, individuals serving drug sentences accounted for 49 percent of the total federal prison population. Though recent policy changes have helped reverse upward trends in population size, the Urban Institute’s Federal Prison Population Forecaster shows that continuing population declines will require significantly shorter lengths of stay for drug offenses.  Congressional leaders are considering legislative action that would reduce some mandatory minimum penalties and grant judges greater discretion to sentence individuals to shorter prison stays for drug offenses.  While the exact impact of these bills is unknown, lasting reductions in the size of the federal prison population will only come from big cuts in lengths of stay for drug offenses.  The Task Force will be considering such reforms as part of its deliberations and expects to build on the efforts under way in Congress.

November 12, 2015 in Data on sentencing, Drug Offense Sentencing, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics | Permalink | Comments (1)

Split Ohio Supreme Court rejects constitutional challenge to registration requirement for 21-year-old who had consensual sex with 15-year-old

Any and all college guys in Ohio who may still be dating younger high school girls will want to know about the new Ohio Supreme Court opinion in Ohio v. Blankenship, No. 2015-Ohio-4624 (Nov. 12, 2015) (available here). Here is how the majority opinion gets started:

Appellant, Travis Blankenship, challenges as cruel and unusual punishment the sex-offender-registration and address-verification requirements imposed upon him as part of his sentence for violating R.C. 2907.04 by engaging in unlawful sexual conduct with M.H., a 15-year-old, when he was 21. Because we hold that the Tier II registration requirements imposed upon him are not so extreme as to be grossly disproportionate to the crime or shocking to a reasonable person and to the community’s sense of justice, we affirm the judgment of the court of appeals.

The chief dissent gets started this way:

The framework within which an issue is presented can unduly influence the outcome. For example, if you ask a stadium full of people whether requiring a Tier II sex offender to comply with certain reporting requirements shocks their sense of justice, you are unlikely to receive a single affirmative response.  But... but add that the offender was an adult male who had sex with a 15-year-old girl ...[and] add that the offender was a 21-year-old male, that the 15-year-old girl consented, and that the registration and address-verification requirements must be complied with every six months for 25 years, and now we are at the threshold.  Many will see the consent as a mitigating factor, many will see the relatively modest age difference as a mitigating factor, and many will see the 25-year time period as unnecessarily long.  As the majority notes, and I acknowledge, these potentially mitigating factors are not statutorily relevant, but they are nevertheless constitutionally relevant.

Assume further that the offender has been determined by a psychologist to have none of the characteristics of a sex offender and to have a low risk of reoffending. There would be many who would be shocked at the severity and length of the punishment, i.e., the reporting requirements.  Assume all of the above and add that the offender could have received a sentence of up to 18 months, see R.C. 2929.14(A)(4), that he was sentenced to six months in prison (the shortest term possible), and that a judge released him after he had served a mere 12 days.  Now the community’s sense of justice has been violated.  Few would deem it appropriate to require a person who committed a crime that warranted a 12-day sentence to comply with reporting requirements every six months for the next 25 years.

The touchstone of federal cruel-and-unusual-punishment analysis is that the punishment must be proportional to the crime. Weems v. United States, 217 U.S. 349, 367 (1910). The case before us fails this standard.

November 12, 2015 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (17)

Ninth Circuit panel reverses, on procedural grounds, district court ruling declaring California's capital system unconstitutional

Today via a procedural ruling in Jones v. Davis, No. 14-56373 (9th Cir. Nov. 12, 2015) (available here), a panel of the Ninth Circuit has reversed this ground-breaking ruling by US District Judge Cormac Carney that California's system of reviewing capital convictions and sentences " violates the Eighth Amendment’s prohibition against cruel and unusual punishment." The circuit panel's majority opinon in Jones, authored Judge Graber, gets started this way:

The State of California authorizes the execution of a capital prisoner only after affording a full opportunity to seek review in state and federal courts. Judicial review ensures that executions meet constitutional requirements, but it also takes time — too much time, in Petitioner Ernest DeWayne Jones’ view. He argues that California’s post-conviction system of judicial review creates such a long period of delay between sentencing and execution that only an “arbitrary” few prisoners actually are executed, in violation of the Eighth Amendment’s prohibition against cruel and unusual punishment. Under Teague v. Lane, 489 U.S. 288 (1989), federal courts may not consider novel constitutional theories on habeas review.  That principle “serves to ensure that gradual developments in the law over which reasonable jurists may disagree are not later used to upset the finality of state convictions valid when entered.” Sawyer v. Smith, 497 U.S. 227, 234 (1990). Because we conclude that Petitioner’s claim asks us to apply a novel constitutional rule, we must deny the claim as barred by Teague. Accordingly, we reverse the district court’s judgment granting relief.

A concurrence by Judge Watford in Jones gets started this way:

My colleagues conclude that relief is precluded by Teague v. Lane, 489 U.S. 288 (1989), which bars federal courts from applying “new rules of constitutional criminal procedure” to cases on collateral review.  Beard v. Banks, 542 U.S. 406, 416 (2004) (emphasis added). The Teague bar does not apply to new rules of substantive law. Schriro v. Summerlin, 542 U.S. 348, 352 n.4 (2004).
The rule announced by the district court, while undoubtedly “new” for Teague purposes, is substantive rather than procedural. The court held that the death penalty as administered in California constitutes cruel and unusual punishment and therefore violates the Eighth Amendment.  In particular, the court concluded that the long delays between imposition of sentence and execution, resulting from systemic dysfunction in the post-conviction review process, combined with the low probability that an inmate sentenced to death will actually be executed, preclude the death penalty from serving any deterrent or retributive purpose. Jones v. Chappell, 31 F. Supp. 3d 1050, 1053, 1062–65 (C.D. Cal. 2014); see Glossip v. Gross, 135 S. Ct. 2726, 2767–70 (2015) (Breyer, J., dissenting).  The Supreme Court has held that capital punishment violates the Eighth Amendment if it does not fulfill those two penological purposes.  Kennedy v. Louisiana, 554 U.S. 407, 441 (2008). Thus, the effect of the district court’s ruling is to categorically forbid death as a punishment for anyone convicted of a capital offense in California.  A rule “placing a certain class of individuals beyond the State’s power to punish by death” is as substantive as rules come.  Penry v. Lynaugh, 492 U.S. 302, 330 (1989).  
I would reverse the district court’s judgment on a different ground.  A federal court may not grant habeas relief unless the petitioner has first exhausted the remedies available in state court.  28 U.S.C. § 2254(b)(1)(A).  Jones concedes he has not done that.  He never presented the claim at issue here to the California Supreme Court to give that court an opportunity to rule on the claim in the first instance.  Jones did present a so-called Lackey claim to the California Supreme Court, which asserted that the long post-conviction delay in Jones’ own case has rendered his death sentence cruel and unusual punishment. See Lackey v. Texas, 514 U.S. 1045 (1995) (Stevens, J., respecting denial of certiorari).  But the claim on which the district court granted relief rests on a different set of factual allegations and a different legal theory. Presenting the Lackey claim to the California Supreme Court therefore did not satisfy the exhaustion requirement.  See Gray v. Netherland, 518 U.S. 152, 162–63 (1996).  
Jones contends that exhaustion should be excused here. The federal habeas statute provides just two scenarios in which a petitioner’s failure to satisfy the exhaustion requirement may be excused: (1) when “there is an absence of available State corrective process,” or (2) when “circumstances exist that render such process ineffective to protect the rights of the applicant.” 28 U.S.C. § 2254(b)(1)(B). Jones’ case does not fit within either of these exceptions. He does not dispute that he can file another habeas petition in the California Supreme Court to exhaust the claim at issue here, so the first exception doesn’t apply.  And the second exception does not apply because Jones can’t show that filing a new habeas petition with the California Supreme Court would be ineffective to protect his rights.

I will have some commentary on this significant and interesting circuit court ruling later today in a follow-up post after I find some time to read the opinions here closely. But even without a full read, I can predict with certainty that the defense team (and their amici) are all-but-certain to seek en banc review before the full Ninth Circuit and/or certiorari review in the Supreme Court. In all likelihood, those further appeals will keep this case going (and provide an excuse for California to not set any execution dates) throughout the rest of 2015 and probably all of 2016.

November 12, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Notable new ACLU report on impact of California's Prop 47 one year later

ACLUcaCoverIn this prior post last week, I reported on this Stanford Justice Advocacy Project report providing one perspective on the impact and import of California voters' embrace of criminal justice reform last year through Proposition 47.  I have just seen that the ALCU of California has this week released its own report on this important topic.  This report, titled "Changing Gears: California’s Shift to Smart Justice," covers lots of ground about local implementation of Prop 47.  Here are excerpts from its six main findings (which has its numbering a bit off):

For this survey, the ACLU obtained and reviewed public records from sheriffs, probation chiefs, district attorneys, and behavioral health departments from around the state. The findings below are offered as a starting point for policymakers and advocates working to better understand the choices local agencies are making in responding to Prop 47 and the voter mandate behind it – and begin to evaluate whether those choices are appropriate.

1. Thousands are waiting for their Prop 47 resentencing/ reclassification petitions to be reviewed. Under Prop 47, people who may be eligible to change the felony on their record to a misdemeanor have a limited time to ask the court to make the change. The November 2017 deadline to apply is now just two years away.  As of June 2015, courts statewide had reported a total of about 160,000 applications for Prop 47 relief – both for resentencing and reclassification.29 Responding to public records requests by the ACLU, many counties were unable to provide accurate data on how many people may still be incarcerated or under supervision awaiting resentencing.  Although most counties acted quickly to establish a process for resentencing eligible incarcerated people, it is less clear how many people eligible for Prop 47 resentencing are still serving felony sentences under community supervision.  According to Californians for Safety and Justice, there may be up to one million Californians who have an old felony on their record that may be eligible for reclassification....

2. Jail populations fell after Prop 47, but they are rising again. Due to overcrowding, jail populations in California are largely determined by jail administrators’ decisions about how to manage jail capacity.  They determine who will be booked into jail and who will be released, how and under what conditions.  Following enactment of Prop 47, jail populations statewide dropped by almost 11% from October 2014 to March 2015.  During the same period, the number of people who were released early due to jail overcrowding dropped by one-third. However, jail populations soon began to increase again as administrators adjusted detention policies and practices....

3. Some in law enforcement have prioritized low-level arrests while others de-prioritized them. The ACLU obtained several county sheriff departments’ arrest numbers for low-level drug and property offenses for each month in 2014 through mid-2015. (Sheriff’s departments represent a small sample of the hundreds of law enforcement agencies in the state.)  Changes in arrests in the fi rst six months of 2014 compared to the fi rst six months of 2015 demonstrate that local agencies are applying their discretion to arrest for Prop 47 offenses very differently....

4. Some county jails are making room for people charged with low-level offenses. The facts belie the claim by some in law enforcement that people facing misdemeanor charges cannot be jailed. In 2015, people facing misdemeanor charges are taking up a growing number of jail beds....

4. A majority of counties already require supervision for some people convicted of a low-level offense. In response to ACLU inquiries, 38 county probation departments reported supervising some people for misdemeanor convictions. Other counties put misdemeanants on court probation (which does not involve active monitoring). Following Prop 47, some counties reported putting people who have been resentenced from a felony to a misdemeanor under the supervision of the probation department. Other counties have chosen not to provide formal supervision....

5. Agencies have been focused on individual agency roles, rather than collaborative planning. In records provided to the ACLU, communication among criminal justice agencies at the county level have focused on the individual roles of each agency rather than on how best to maintain the county’s overall public safety goals. Few counties appear to have made the space to discuss how various agencies and the county as a whole should adjust policies and practices to ensure that counties adhere both to the legal requirements and the voter intent behind Prop 47.

A few (of many) prior related posts on Prop 47 and its impact:

November 12, 2015 in Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Tennessee soon to become first state with animal abuser registry

As reported in this local article, headlined "TBI will soon post animal abuse offenders," the Volunteer State is soon to have animal abuse offenders subject to required on-line registration. Here are the details:

Come January 1, Tennessee will post online a list of animals abusers near you. It will be similar to a sex offender registry, and Tennessee will be the first to have a statewide site.

"Her hind legs were put into a pot of water. Boiling water," said Cindy Marx-Sanders as she held Molly the chihuahua. Molly was rescued from an abusive home. "She is exactly why we need an animal abuser registry," Marx-Sanders said.

Marx-Sanders was one of the lobbyists who helped make an animal abuser registry a reality. By January, the Tennessee Bureau of Investigation will have the statewide website up and running. It will be a registry open to the public with pictures of people convicted of felony animal cruelty.

A person convicted of hurting an animal would have their picture up for two years, but if convicted again, their picture would be up for five years.

State Rep. Darren Jernigan of Nashville was a sponsor. "We want to put it in one spot so someone in Memphis can't drive to Knoxville and get an animal if they're going to abuse it. It's going to be statewide," he said.

Angela Klein, with the Bartlett Animal Shelter, has seen her fair share of animal abuse. "Sometimes it can be pretty heart-breaking," she said Monday. She's glad to now have another resource to help combat abuse. "We can go online now and check to see if people are on that registry, and it will give us one more tool to help place animals into better homes," Klein said....

Marx-Sanders said it's a great start, but there's more that needs to be done. "It does need to be expanded to include state-level misdemeanors, which are just a little bit lower on the cruelty scale than the felony level, but is still neglect and cruelty."

November 12, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Who Sentences? | Permalink | Comments (11)

"How Parental Incarceration Affects a Child’s Education"

The title of this post is the headline of this notable new Atlantic article, which summarizes some of the findings from this research report titled "Parents Behind Bars: What Happens to Their Children?" authored by David Murphey and P. Mae Cooper.  Here are excerpts from the Atlantic article:

Research has long found that children who have (or have had) a parent behind bars tend to suffer from problems including poor health, behavior challenges, and grade retention, but it’s been difficult to suss out the degree to which those issues are attributable more generally to other realities common in communities with high incarceration rates. “It can be challenging to disentangle the effects of parental incarceration from … other risk factors, such as extreme poverty,” Murphey and Cooper write. “Complicating matters further, parental incarceration can also exacerbate these associated risk factors, through loss of income, for example.”...

The researchers also found that a child who’s had a parent in prison is more likely than one who hasn’t to experience additional “adverse childhood experiences,” or ACEs—long-term, “toxic” circumstances such as witnessing domestic or community violence, suffering from extreme poverty, or living with someone who’s mentally ill. Research has shown that ACEs, especially when they’re cumulative, often cause childhood trauma, which can ultimately result in poor immunity and mental-health problems in adulthood and even early mortality. As James Perrin, the president of the American Academy of Pediatrics, told The Atlantic’s Olga Khazan last year, “If you have a whole bunch of bad experiences growing up, you set up your brain in such a way that it’s your expectation that that’s what life is about.”

Parental incarceration often acts as one such ACE because it causes a confusing, troubling loss of an attachment figure and involves ongoing contact with law enforcement, the corrections system, and child-welfare officials. But what Murphey and Cooper find is that having a parent in prison is likely to coincide with even more traumatic experiences: Children who’ve undergone parental incarceration suffer from 2.7 ACEs on average, according to their analysis of of the National Survey of Children’s Health, which lists 8 ACEs total. Children who haven’t experienced parental incarceration suffered from 0.7 ACEs on average.

Ultimately, the researchers conclude that “the harm associated with parental incarceration can compound the already difficult circumstances of vulnerable children,” a reality that’s particularly evident in their schooling. Yet, as the University of Minnesota paper shows, education policy has done little to address these kids’ particular needs. And in this age of mass incarceration, perhaps it should. In his recent cover story for The Atlantic about the topic, Ta-Nehisi Coates described mass incarceration as a vicious cycle that victimizes entire families, holding them “in a kind of orbit, on the outskirts, by the relentless gravity of the carceral state.” “Through it all,” Coates wrote, “children suffer.”

November 12, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

November 11, 2015

How many vets, after serving to secure liberty, are now serving LWOP sentences?

The question in the title of this post, in addition to raising an important empirical question on a day devoted to honoring our veterans, seeks to highlight my view that even more disconcerting than the number of veterans who many be on death row (as dicusses in this new DPIC report) is the surely much larger number of vets who are serving a sentence ensuring they will never experience true freedom again after they served to protect that very freedom.

The DPIC report indicates that around 300 veterans may be on death row, which would make vets a little less than 10% of the condemned population.  Using that rough percentage and knowing that at least 100,000 persons (and likely many more) are serving LWOP sentences in the United States, it think it would be reasonable to guess that as many as 10,000 veterans might be serving the ultimate American liberty-depriving sentence after having devoted part of their life to protecting American liberties.

November 11, 2015 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (10)

"What Mass Incarceration Looks Like for Juveniles"

The title of this post is the headline of this New York Times op-ed by Vincent Schiraldi. Here are excerpts:

After two decades of researching mass incarceration — and advocating for its demise — I decided in 2005 to take more direct action and accepted a job running corrections departments, first in Washington, D.C., then in New York City.  It was a rude awakening.

The juvenile corrections department in Washington had about 1,000 clients, about 200 of whom were confined to a detention facility, and a staff of 800. For the previous 19 years, the department had been under a court order for unconstitutional conditions; I was the 20th leader in that time.  In the year prior, two scathing reports, one by the district’s inspector general and another from plaintiffs’ experts, detailed appalling conditions: Beatings of children in custody were commonplace, inmates stuffed clothing around the toilets to keep out rats and cockroaches, young people were locked up for so long that they often defecated or urinated in their cells.  Youths who came in clean tested positive for marijuana after 30 days of confinement, suggesting that it was easier to score drugs in my facility than on the streets of the District of Columbia.

My staff and I quickly uncovered more abuses.  Staff members were sexually harassing the kids and one another.  One of my corrections officers married a youth shortly after the boy was released from custody.  A teacher who had been confined in the facility when she was a teenager confided to us that she had been sexually assaulted by a staff member who was still in our employ years later.  The female staff members widely complained that, if they didn’t perform sexually for their supervisors, they were threatened with finding themselves alone and unaided with the facility’s inmates in dangerous situations.

These abuses are not meted out equally in the United States, with African-Americans and Latinos incarcerated at far higher rates than whites.  In my five years running the Washington system, I never saw one white youth (other than volunteers) in my correctional facility....

In New York, where I ran the probation department, I didn’t witness the same hair­raising institutional abuse, mostly because we didn’t run any facilities.  But probation officers reported that they routinely re­incarcerated people on their caseloads for technical, noncriminal violations largely because they were afraid that if they didn’t, and their client was rearrested, they’d be held to account.  As a result, our clients were frivolously deposited into New York’s jail and juvenile facilities, both of which were sued by the Justice Department during my tenure for conditions chillingly similar to what I had witnessed in Washington.  When we put a stop to the over-incarceration, crime did not spike and there was a remarkably low felony rearrest rate of 4 percent a year for people who completed probation.

Two things surprised me about my experiences on the inside.  First, horrific institutional conditions are common, not exceptional.... Since 1970, systemic violence, abuse and excessive use of isolation and restraints have been documented in juvenile institutions in 39 states, the District of Columbia and Puerto Rico, according to the Annie E. Casey Foundation, a philanthropic group devoted to children’s poverty issues....

The second major surprise was how much I liked many of my staff members.  I charged into my job with an air of moral superiority.  Surely, I thought, such conditions could be created only by ethically bankrupt characters who would wear their depravity on their sleeves.  But it was far more complicated.  Just about everyone in my Washington facility knew who was beating the kids, having sex with them and selling them drugs.  After all, our facility housed only about 200 young people, roughly the size of a small middle school.

Yet many of the church-going people on my staff were ostensibly very friendly people who, despite their silence, believed they were advancing public safety.  They attended our football games and plays and cheered the youths on, sitting in the stands with their parents.  They were the good guys, rendered complicit by years in a corrupt system....

From what I witnessed during my decade on the inside, the end of mass incarceration can’t come soon enough; conditions poison staff members and kids alike and harm, rather than improve, public safety. Incarceration should be the backstop, not the backbone, of our crime­-control efforts.

November 11, 2015 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

November 10, 2015

What should be the minimum age for charging a juve with murder?

The question in the title of this post is prompted by this depressing local article, headlined "8-year-old charged with murder in beating death of Birmingham toddler," which suggests that there is apparently no minimum age for prosecution for murder in Alabama.  Here are the sad specifics:

An 8-year-old Birmingham boy is charged with murder in the beating death of a toddler girl left in his care, the youngest person in recent memory charged with murder in Jefferson County. The girl's mother is charged with manslaughter after police say she left her young daughter in the care of a group of children while she partied at a nightclub.

"This is one of the most heartbreaking investigations that I have seen in over 30 years of my law enforcement career," said Birmingham police Chief A.C. Roper. "There are just too many deep rooted issues in this horrific crime. It's extremely troubling from so many different angles and there are no law enforcement answers to prevent it," Roper said. "We've been concerned about the kids and the future effect on their lives. The bottom line is an innocent young baby lost her life and that should be a wake-up call for our community."

Kelci Devine Lewis, who turned 1 in May, was found unresponsive in her crib at 10:45 a.m. Oct. 12. Police were called to the home on Second Avenue South, and Kelci was taken to Children's of Alabama where she was pronounced dead at 11:07 a.m. Authorities have said there were visible injuries to the girl. She died from blunt force trauma to the head, and internal injuries, Birmingham police spokesman Lt. Sean Edwards has said.

Family members said 26-year-old Katerra Lewis and Kelci, her only child, didn't live at the home where Kelci was killed. Grandmother Waynetta Callens said in an earlier interview that they were staying there temporarily with friends while Katerra Lewis waited for Section 8 housing of her own. Edwards said Kelci was left alone that night in the home with five other children, ages 2, 4, 6, 7 and 8. Katerra Lewis, he said, had gone to a nightclub with a friend who was the person she was staying with.

"It is believed that while the mother and friend were at the club, the 8-year-old viciously attacked the 1-year-old because the 1-year-old would not stop crying," Edwards said. "The 1-year-old suffered from severe head trauma as well as major internal organ damage with ultimately led to her death."

Police believe the 8-year-old put the injured Kelci back in her crib, where she remained until her mother found her the following day. Katerra Lewis and the other adult were reportedly gone from 11:30 p.m. until 2 a.m. Police have not and will not release the name of the 8-year-old boy. He is in the custody of the Department of Human Resources....

Katerra Lewis is charged with manslaughter. She turned herself in to the Jefferson County Jail Monday at 3:42 p.m. and was released at 5:02 p.m. after posting $15,000 bond. Katerra Lewis attended a vigil held Oct. 20 at Avondale Park but was too distraught to speak to the group. They lit candles and released white balloons in Kelci's memory. The day after the vigil, Katerra Lewis posted on her Facebook that she was suffering following the loss of her child. "I keep asking can dey bring u back and take me instead."

DHR spokesman Barry Spear said the agency had no prior involvement with Katerra Lewis or Kelci. Privacy laws, he said, prevent him from commenting about the 8-year-old suspect.

November 10, 2015 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (6)

Urging AG Lynch to ensure DOJ policies on § 851 enhancements are followed consistently

I was pleased over this weekend to be part of an effort spearheaded by Prof Kate Stith to write to Attorney General Loretta Lynch to express concerns about federal prosecutors' charging practices in drug cases.  The short letter sent yesterday to AG Lynch on this matter, which can be downloaded below, gets started and ends as follows:

We write to urge you to issue renewed guidance to all U.S. Attorneys to reiterate and enhance compliance with former Attorney General Eric Holder’s September 2014 Memorandum (“Holder Memo”) instructing U.S. Attorneys not to leverage 21 U.S.C. § 851 enhancements to induce defendants to plead guilty.  Recent statements by Steven H. Cook, head of the National Association of Assistant United States Attorneys (NAAUSA), as well as field research being conducted by students at Yale Law School, suggest that at least some federal prosecutors are not consistently complying with this policy.  This creates prosecutor­-driven disparities that are plainly unwarranted....

[T]here is mounting evidence that at least some U.S. Attorneys still consider it appropriate to routinely threaten to file § 851 enhancements if defendants exercise their right to go to trial.  Last week, the Washington Post reported that Steven Cook of NAAUSA “said the rates of cooperation have not changed in part because mandatory sentences are still in play as leverage in negotiations.  The Holder memo, he said, has been interpreted differently by individual prosecutors, sometimes in the same office.  Defense attorneys ‘understand that this tool is still in our pocket.’”

Though the study is still ongoing, preliminary inquiries and data analysis by students at Yale Law School likewise reveal inconsistent application of the Holder Memos.  Moreover, prosecutors in many districts continue to wield the explicit or implicit threat of § 851 enhancements to induce defendants to plead guilty.  In numerous districts across the country, it is common knowledge that a prosecutor will almost certainly file an enhancement if a defendant elects to go to trial.  Such practices contravene the spirit and letter of the Holder Memos.

We urge you to issue renewed guidance to all U.S. Attorneys in order to ensure compliance with and consistent application of the August 2013 and September 2014 Holder Memos. Additionally, in order to foster and facilitate consistent application of federal sentencing laws nationwide, we recommend that you (1) include these policies in the U.S. Attorneys’ Manual, and (2) require U.S. Attorneys to report when they file § 851 enhancements, and their reasons for doing so pursuant to the Holder Memos.

Download Letter to Hon. Loretta E. Lynch from Professor Kate Stith_Douglas Berman_and Mark Osler

November 10, 2015 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

"Battle Scars: Military Veterans and the Death Penalty"

BattleScarsCoverThe title of this post is the title of this notable new report from the Death Penalty Information Center.  Here are excerpts from its Executive Summary:

In many respects, veterans in the United States are again receiving the respect and gratitude they deserve for having risked their lives and served their country. Wounded soldiers are welcomed home, and their courage in starting a new and difficult journey in civilian life is rightly applauded.  But some veterans with debilitating scars from their time in combat have received a very different reception.  They have been judged to be the "worst of the worst" criminals, deprived of mercy, sentenced to death, and executed by the government they served.

Veterans with Post-Traumatic Stress Disorder (PTSD) who have committed heinous crimes present hard cases for our system of justice.  The violence that occasionally erupts into murder can easily overcome the special respect that is afforded most veterans.  However, looking away and ignoring this issue serves neither veterans nor victims....

PTSD is now formally recognized in the medical community as a serious illness.  But for those who have crossed an indefinable line and have been charged with capital murder, compassion and understanding seem to disappear.  Although a definitive count has yet to be made, approximately 300 veterans are on death row today, and many others have already been executed.

Perhaps even more surprising, when many of these veterans faced death penalty trials, their service and related illnesses were barely touched on as their lives were being weighed by judges and juries.  Defense attorneys failed to investigate this critical area of mitigation; prosecutors dismissed, or even belittled, their claims of mental trauma from the war; judges discounted such evidence on appeal; and governors passed on their opportunity to bestow the country's mercy.  In older cases, some of that dismissiveness might be attributed to ignorance about PTSD and related problems.  But many of those death sentences still stand today when the country knows better.

Unfortunately, the plight of veterans facing execution is not of another era.  The first person executed in 2015, Andrew Brannan, was a decorated Vietnam veteran with a diagnosis of PTSD and other forms of mental illness.  Despite being given 100% mental disability by the Veterans Administration after returning from the war, Georgia sought and won a death sentence because he bizarrely killed a police officer after a traffic stop.  The Pardons Board refused him clemency.  Others, like Courtney Lockhart in Alabama, returned more recently with PTSD from service in Iraq.  He was sentenced to death by a judge, even though the jury recommended life.  The U.S. Supreme Court turned down a request to review his case this year.

This report is not a definitive study of all the veterans who have been sentenced to death in the modern era of capital punishment.  Rather, it is a wake-up call to the justice system and the public at large: As the death penalty is being questioned in many areas, it should certainly be more closely scrutinized when used against veterans with PTSD and other mental disabilities stemming from their service.  Recognizing the difficult challenges many veterans face after their service should warrant a close examination of the punishment of death for those wounded warriors who have committed capital crimes.  Moreover, a better understanding of the disabilities some veterans face could lead to a broader conversation about the wide use of the death penalty for others suffering from severe mental illness.

November 10, 2015 in Death Penalty Reforms, Offender Characteristics, Prisons and prisoners | Permalink | Comments (4)

Will new House Speaker Paul Ryan significantly help getting federal sentencing reform enacted?

The inside-the-Beltway question in the title of this post is prompted by this inside-the-Beltway report from The Hill headlined "Paul Ryan seen as boost to criminal justice reform push." Here are excerpts:

Proponents of criminal justice reform view new Speaker Paul Ryan as an ally, and see his ascension as a boost to the bipartisan push to overhaul decades-old sentencing and drug laws. Lawmakers and advocates pushing reform legislation base their optimism on Ryan’s past proposals, the signals he has sent about the way he plans to run the House — and even the Wisconsin Republican’s age.

Members of both the House and the Senate told The Hill they believe Ryan’s election last week will help smooth legislation now pending before both chambers. “It helps,” said Sen. Lindsey Graham (R-S.C.) “I think he’s sensitive to the issue and would be willing to look at sensible reform.”

Ryan included criminal justice and sentencing reforms in a sweeping anti-poverty plan he penned in 2014, when he served as chairman of the House Budget Committee. The proposal called for more flexibility within mandatory minimum guidelines judges use when sentencing non-violent drug offenders and for federal assistance in helping inmates re-enter society.

To the extent he decides to focus on the issue, Ryan could play an important role in bringing the issue to the floor this session. “I know Paul has been a supporter of the concept over the years and so one would reasonably conclude it might be a little easier,” said Rep. Steve Chabot (R-Ohio), who himself has concerns about moving too aggressively on a criminal justice overhaul.

Advocates, meanwhile, are bullish on the prospect, saying Ryan’s history and experience all bode well for reform efforts. “I think Paul Ryan sees it as something that’s part of a social fabric fix not just criminal justice reform,” said Kevin Ring, director of strategic initiatives at Families Against Mandatory Minimums (FAMM), a group that’s fighting for sentencing reforms.

Danyelle Solomon, policy counsel for the Brennan Center for Justice at New York University Law School, said Ryan is uniquely positioned to become a leader on proposals that have failed to gain traction in recent years. “With his time on the Budget and Ways and Means committees, he is well aware of the cost burden the system has on the federal budget,” she said. “Speaker Ryan has made positive comments about the need to address the criminal justice system and we’re excited to see movement.”...

Two reform bills have been offered in the House: the SAFE Justice Reinvestment Act, introduced by Rep. Jim Sensenbrenner (R-Wisc.) and Rep. Bobby Scott (D-Va.), and the Sentencing Reform Act of 2015, authored by House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Rep. John Conyers (D-Mich.). The latter legislation has also been introduces in the Senate and both bills have bipartisan support....

Though Scott noted that Ryan has been an advocate for relying heavily on research in drafting social policies — something he says his bill does — he admits Goodlatte’s legislation has a better chance of getting a vote in the House. “I think it’s fair to say the bill number that reaches the floor with be Goodlatte’s bill,” he said. “The question is what gets added to it. There are a lot of provisions that would significantly improve the Goodlatte bill.”

In a statement to The Hill, Goodlatte said the Judiciary Committee is taking a step-by-step approach. "There is a growing consensus across the political spectrum that our criminal justice system is in need of reform and I am hopeful that reforms can be passed and enacted this Congress,” he said.

Reformers also draw hope from Ryan’s age. At 45, he’s two decades younger than the man he succeeded, former Speaker John Boehner (R-Ohio). “Younger members have a better sense of this issue and there is less of this binary ‘you tough on crime; me soft on crime,’” Ring said. “The younger guys aren’t burdened by the older fights, so they are freer to look at it in different ways.”

A few prior related posts about Paul Ryan and federal sentencing reform:

November 10, 2015 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

November 9, 2015

New research suggests overcrowding in California prisons increased post-release parole violations

Opponents of modern sentencing reform efforts are often quick and eager to highlight research showing high rates of recidivism among those released from prison to argue that public safety could be adversely affected by any and all sentencing reform.  In light of such claims, I find notable this new published empirical research suggesting that prison overcrowding in California may be in part responsible for high recidivism rates.    The published research is titled "Does Prison Crowding Predict Higher Rates of Substance Use Related Parole Violations? A Recurrent Events Multi-Level Survival Analysis," and here are excerpts from the abstract:

Objective

This administrative data-linkage cohort study examines the association between prison crowding and the rate of post-release parole violations in a random sample of prisoners released with parole conditions in California, for an observation period of two years (January 2003 through December 2004).

Background

Crowding overextends prison resources needed to adequately protect inmates and provide drug rehabilitation services. Violence and lack of access to treatment are known risk factors for drug use and substance use disorders. These and other psychosocial effects of crowding may lead to higher rates of recidivism in California parolees.

Methods

Rates of parole violation for parolees exposed to high and medium levels of prison crowding were compared to parolees with low prison crowding exposure. Hazard ratios (HRs) with 95% confidence intervals (CIs) were estimated using a Cox model for recurrent events. Our dataset included 13070 parolees in California, combining individual level parolee data with aggregate level crowding data for multilevel analysis....

Conclusions

Prison crowding predicted higher rates of parole violations after release from prison. The effect was magnitude-dependent and particularly strong for drug charges. Further research into whether adverse prison experiences, such as crowding, are associated with recidivism and drug use in particular may be warranted.

November 9, 2015 in Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Reentry and community supervision, Sentences Reconsidered | Permalink | Comments (8)

Via lengthy summary reversal, SCOTUS grants qualified immunity to police officer involved in fatal shooting

Though not technically a sentencing issue, folks who closely follow all "hot" criminal justice issues (and/or the work of the Supreme Court) will want to make time to read the Supreme Court's lengthy per curiam opinion handed down today. In Mullenix v. Luna, No. 14-1143 (S. Ct. Nov. 9, 2015) (available here), the Court via a 12-page per curiam opinion decided the Fifth Circuit was wrong to deny summary judgment based on qualified immunity to an officer involved in a fatal shooting.

Justice Sotomayor was a lone dissenter in the ruling, and the start of her dissent highlights the facts that kept this civil rights case going until SCOTUS decided to jump in today:

Chadrin Mullenix fired six rounds in the dark at a car traveling 85 miles per hour.  He did so without any training in that tactic, against the wait order of his superior officer, and less than a second before the car hit spike strips deployed to stop it.  Mullenix’s rogue conduct killed the driver, Israel Leija, Jr.  Because it was clearly established under the Fourth Amendment that an officer in Mullenix’s position should not have fired the shots, I respectfully dissent from the grant of summary reversal.

Anyone interested in early coverage on this ruling can check out Kent Scheidegger at Crime and Consequences and Lyle Denniston at SCOTUSblog.

November 9, 2015 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

"The Most Ambitious Effort Yet To Abolish The Death Penalty Is Already Happening"

The title of this post is the headline of this extraordinary new BuzzFeed News piece about the significant on-going effort to build a case for the Supreme Court to abolish the death penalty through a major constitutional ruling.  The very lengthy article by Chris Geidner covers lots of ground, making the full piece a must-read for any and everyone who follows any aspect of the debate over the modern death penalty.  Here is how the piece gets started:

Henderson Hill and Rob Smith are the odd couple shepherding a collaborative effort to end the death penalty in America at the most significant moment for that movement in decades.

As talk of mass incarceration, racial disparities, and criminal justice legislation has permeated the public debate on both sides of the political spectrum, another effort has taken shape under the radar: the laying of the groundwork for a Supreme Court ruling that the death penalty is unconstitutional, a violation of the Eighth Amendment’s ban on cruel and unusual punishments.

When Supreme Court Justice Stephen Breyer, along with Justice Ruth Bader Ginsburg, raised the prospect this June of the Supreme Court revisiting the constitutionality of the death penalty — using a key part of Smith’s work as evidence — the ground shifted overnight, and discussions went from hypothetical to hyperdrive.

In the wake of that change, two of the death penalty’s most strident abolitionists sat down with BuzzFeed News to make their case not only for ending the death penalty in the United States — but for doing so in the next few years. The effort, as with so many focused on the Supreme Court, ultimately comes down to Justice Anthony Kennedy.

The 8th Amendment Project, which Hill and Smith run, is a centralized effort to advance death penalty abolition research, raise issues of legal system accountability, and help capital defense efforts — all with the Supreme Court in mind.  It has a $1 million budget and six full-time staff members this year.  It is part of a national effort backed by the Themis Fund, a donor collaborative dedicated to ending the death penalty in America, the fund’s director told BuzzFeed News.  The Themis Fund was launched as an initiative of the progressive Proteus Fund in 2007, when a broad array of opponents of capital punishment — from litigators to funders — came together to figure out a way to end capital punishment in the country.

As death sentences and executions slowed down across the country — and some states got rid of it altogether — the Themis Fund donors decided to ramp up their efforts. In 2014, Hill, a 59-year-old black lawyer who began his career decades ago as a public defender, was made the head of the project, giving it its current name. He has since brought on Smith, a 34-year-old white law professor who graduated from law school in 2007, to serve as the project’s litigation director.

November 9, 2015 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Former Virginia AG explains why he finds conservative opposition to sentencing reform "so baffling"

Ken Cuccinelli, the former attorney general for Virginia, has authored this notable FoxNews commentary asserting that true conservatives should be true supporters of modern sentencing reform efforts. The piece, headlined "Criminal justice reform: Conservative states have a record of success. So why ignore it?", merits a full read. Here is how it gets started:

With Congress currently considering several different approaches to criminal justice reform, interested parties have long noted that the current situation at the federal level is untenable, featuring stubbornly high recidivism rates, a ballooning prison population, and a Bureau of Prisons that constitutes an ever-growing proportion of the Justice Department’s budget.

In short, we aren’t getting the sort of return on investment — both in terms of cost, but most importantly, public safety — that we’ve come to demand of other areas of government. In such situations, conservatives must take the lead when government has grown inefficient, which is why some recent opposition to reform from the right is so baffling.

Commentators have variously suggested that this effort is “bipartisanship at its worst,” or that our crime rate has declined in recent years because “we have taken crime more seriously” by keeping “serious criminals in jail, not letting them out” despite an entire body of scholarship to the contrary.

Unfortunately, such commentary is long on histrionics — with suggestions that essentially equate re-evaluating mandatory sentences to allow for more tailored, individualized punishments as tantamount to Congress throwing open prison doors indiscriminately — and short on facts and experience which, hitherto, conservatives have prized.

America’s crime rate has indeed fallen substantially in recent decades, but this is due in large part to a paradigm shift in what it means to be “tough on crime.” We can agree that keeping serious criminals in prison is an effective means of preserving public safety, but we must also recognize that the axiom of “putting people in jail and throwing away the key” does not apply to all offenders universally, and can actually be counterproductive.

Incarcerating non-violent offenders in the same population as more dangerous criminals has the effect of inculcating the former into a culture of criminality common among the latter, making them more of a risk to public safety upon release than when they originally went in.

“Tough on crime” policies, particularly mandatory sentences, tend to set such circumstances in stone, and vitiates the possibility of seeking out alternative, evidence-based programs that can divert amenable offenders into treatment. Such programs are more cost-effective, and most importantly, have been proven to reduce the likelihood of recidivism.

November 9, 2015 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing | Permalink | Comments (0)

Connecticut Gov calls for older teens to be treated as juves in state criminal justice system

As effectively reported in this local article, headlined "Malloy: Raise the age for juvenile justice system to 20," Connecticut's Governor Dan Malloy delivered a significant criminal justice policy speech on Friday focused on bail reform and juvenile justice. Here are some details:

"I would like to begin a statewide conversation about raising the age of eligibility for our juvenile justice system and considering how we think about our young offenders," Malloy said at the University of Connecticut School of Law in Hartford.  "Let's consider this: age within our laws and criminal justice system is largely arbitrary…You can commit a nonviolent offense at 17 without a criminal record, but if you're 18 and you commit the same crime, it lasts a lifetime."

Malloy also would overhaul the bail system, always a politically fraught undertaking at the General Assembly, with the intention of ensuring that no one is jailed for want of a minimal bail, a change that one policy analyst said could shrink the state's jail population by up to 1,000 inmates.

He was the keynote speaker at an all-day symposium sponsored by the Connecticut Law Review.  His audience included judges, prosecutors and the commissioner of correction, Scott Semple.

Malloy, a Democrat who won bipartisan passage earlier this year for a Second Chance Society initiative aimed at reducing incarceration for non-violent crimes, proposed that the records of those under 25 who commit less severe offenses be shielded from public disclosure and possibly expunged.

Malloy said such a change would "wipe the slate clean" for low-risk offenders that have not matured entirely.  "Is it right that that 17 year-old can have a second chance but a 22 year-old cannot? This is the question that we should collectively answer," Malloy said.  He intends to propose a package of reforms to the General Assembly for its 2016 session, which convenes in February.

The changes Malloy proposed would make Connecticut the first state in the nation to raise the age for its juvenile justice system past 18....  He said one inspiration for the idea came on a trip with Semple to Germany, where offenders are treated as juvenile up to age 20.

“This is uncharted territory in terms of going that far," said David McGuire, the legislative and policy director for the American Civil Liberties Union of Connecticut.  "It makes a lot of sense. It will save a lot of lives. It will really impact an entire generation."

In 2007, state lawmakers changed state law so that 16- and 17-year-olds charged with less serious offenses enter the juvenile justice system, where they are often provided with a range of community-based supports, rather than automatically being sent to the adult court system.  A study commissioned by the state before the age was raised to 18 found that up to 75 percent of teenagers sent to the adult system were receiving no rehabilitative services.  And the services other teens received were subpar, according to the study.

Malloy said the current age is still too low.  "It's time to think about changing the artificial barriers that we imposed. It's time that we get it right.  For that reason we need to take a different approach for these young adults between the ages of 18 and 24," Malloy said, pointing out that many of these young offenders are victims of trauma.

November 9, 2015 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

November 8, 2015

California (finally!) officially announces switch to one-drug lethal injection protocol

95498_600California, the state with the largest death row and the seemingly most-dysfunctional and expensive capital punishment system, late last week announced that it is finally going to try to modernize its long-dormant execution protocol.  This extended Los Angeles Times piece provides the details and the back-story:

California unveiled a new method for executing prisoners Friday, proposing a “humane and dignified” single-drug injection protocol that could restart capital punishment after a nearly 10-year hiatus. The regimen would replace a three-chemical method the state used in the past. That mixture was struck down in 2006 by a judge who said it could cause inhumane suffering if one of the drugs failed to work.

The new proposal stems from a lawsuit filed against the state by crime victims' families who favored the death penalty and wished to see it enforced. A settlement of the suit, brought by the Criminal Justice Legal Foundation, required the state to devise a new lethal injection method by this month.

Executions are not likely to resume immediately, however. Public vetting of the proposal could take a year, and court challenges may follow. In addition, voters may see one or more ballot measures on the death penalty next year....

The new California protocol would allow a choice of four barbiturates for lethal injection: amobarbital, pentobarbital, secobarbital and thiopental. The selection would be made on a “case-by-case basis, taking into account changing factors such as the availability of a supply of chemical,” according to the proposal, published online Friday by the California Department of Corrections and Rehabilitation.

The single-drug protocol creates “a better flexibility, a better system of options,” said Michael Rushford, who heads the foundation that filed the suit. Rushford expressed chagrin over the state's decision to use the regulatory process, which allows two months for public comment and will delay the resumption of executions.

He said officials had dragged their feet in crafting a new policy. He attributed that to Gov. Jerry Brown and Atty. Gen. Kamala D. Harris, who oppose the death penalty although they have said they would enforce it. “If we had a different governor and a different attorney general, these wouldn't be problems,” Rushford said.

Harris' office did not immediately respond to requests for comment. Corrections spokeswoman Terry Thornton, speaking for the Brown administration, ascribed the delay to the developing national debate over execution methods, not resolved until a U.S. Supreme Court ruling in June.

At least 16 death row inmates in California have exhausted their appeals and could be executed if the protocol is adopted. The inmates range in age from 49 to 78. One was condemned for crimes that took place 36 years ago.

Some condemned prisoners were stoic when told about the impending arrival of a new execution protocol. “In the meantime, I have my life,” Clifton Perry, 46, said in a recent interview, noting that legal challenges could drag on for years. He was sentenced to death for the 1995 killing of a convenience store owner during a robbery.

California has 749 inmates on death row, the most in the country. Since 1978, the state has executed 13 prisoners, 68 condemned offenders have died from natural causes and 24 have committed suicide....

California voters narrowly defeated a ballot measure in 2012 that would have abolished the death penalty. Eight states have rescinded capital punishment laws since 2000. Death penalty opponents have proposed an initiative for the November 2016 ballot that would replace capital punishment with life without the possibility of parole. Legislative analysts this week said such a move would save California some $150 million a year, by reducing the costs of capital punishment trials and subsequent penalty appeals.

A competing measure, sponsored by law enforcement and victim groups, also has been submitted for state review. That measure would propose changes to speed up executions.

November 8, 2015 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

"How Doctors Helped Drive the Addiction Crisis"

The title of this post is the headline of this extended New York Times op-ed authored by Richard Friedman, which reinforces my long-standing view that drug use/abuse and related social ills are most properly considered and addressed as public health concerns rather than criminal justice issues.  Here are excerpts:

There has been an alarming and steady increase in the mortality rate of middle-­aged white Americans since 1999, according to a study published last week.  This increase — half a percent annually — contrasts starkly with decreasing death rates in all other age and ethnic groups and with middle­-aged people in other developed countries.

So what is killing middle­-aged white Americans?  Much of the excess death is attributable to suicide and drug and alcohol poisonings.  Opioid painkillers like OxyContin prescribed by physicians contribute significantly to these drug overdoses.

Thus, it seems that an opioid overdose epidemic is at the heart of this rise in white middle­-age mortality.... Driving this opioid epidemic, in large part, is a disturbing change in the attitude within the medical profession about the use of these drugs to treat pain....

[S]tarting in the 1990s, there has been a vast expansion in the long­term use of opioid painkillers to treat chronic nonmalignant medical conditions, like low­back pain, sciatica and various musculoskeletal problems.  To no small degree, this change in clinical practice was encouraged through aggressive marketing by drug companies that made new and powerful opioids, like OxyContin, an extended­release form of oxycodone that was approved for use in 1995....

The consequences of this epidemic have been staggering.  Opioids are reported in 39 percent of all emergency room visits for nonmedical drug use.  They are highly addictive and can produce significant depressive and anxiety states. And the annual direct health care costs of opioid users has been estimated to be more than eight times that of nonusers.

But most surprising — and disturbing — of all is that there is actually very weak evidence that opioids are safe or effective for the long­term treatment of nonmalignant pain. So how did they become so popular for these uses?  A large review article conducted between 1983 and 2012 found that only 25 of these were randomized controlled trials and only one study lasted three months or longer.  The review concluded that there was little good evidence to support the safety or efficacy of long­term opioid therapy for nonmalignant pain....

What is really needed is a sea change within the medical profession itself.  We should be educating and training our medical students and residents about the risks and limited benefits of opioids in treating pain.... It is physicians who, in large part, unleashed the current opioid epidemic with their promiscuous use of these drugs; we have a large responsibility to end it.

This commentary fittingly highlights that, in modern times, doctors and Big Pharma are the most significant (and potentially dangerous) drug dealers for most Americans.  It also informs my own disinclination to defer completely to doctors and Big Pharma when they express concern about the potential harms of marijuana reform or to trust politicians when they suggest doctors and Big Pharma should guide us through modern marijuana reform debates.  When it comes to pain management and the developments of safe drugs to treat chronic pain, doctors and Big Pharma have a track record in recent decades that should prompt much more suspicion than confidence.

Some prior related posts:

November 8, 2015 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (2)