January 31, 2015
Imagining a SuperBowl party with the Koch brothers, Al Franken, Rob Portman, David Keene, Piper Kerman and Van Jones
The silly idea reflected in the title of this post is my effort to put a timely spin on what is becoming an old story: lots of folks from lots of different perspectives are coming together to talk about the need for criminal justice reforms. And, as detailed in this press piece, many of these folks got together this past week at an event. Here are the details:
Only one issue in Washington right now could bring together the Koch brothers’ top lawyer, an environmental activist, the former head of the NRA and Sen. Al Franken. Criminal justice reform. In a city best known for dysfunction and discord, the issue has stood out as a rare area of common ground between Democrats and Republicans.
And at a panel on reforming the criminal justice system hosted by the Constitution Project advocacy group on Capitol Hill on Wednesday, the bipartisan array of speakers seemed genuinely nonplussed by the harmony across an otherwise gaping political divide.
Van Jones, the former Obama administration official and liberal commentator, was seated next to Mark Holden, Koch Industries’ general counsel and the face of the conservative mega-donors’ efforts to lower incarceration rates in the country. (The Koch brothers are planning to spend a reported $889 million during the 2016 election cycle, a figure that puts their operation in the same financial ballpark as the two political parties themselves.)
“That should be a headline in itself,” Jones said of he and Holden sitting at the same table. “Cats and dogs sleeping together,” Holden chimed in. “I don’t know about sleeping together,” Jones quipped.
Jones said he hoped politicians would seize on this moment — when crime is down and interest is high — to reform the U.S. penal system so that the country no longer imprisons a higher percentage of its citizens than any other nation. “This is a time for real comprehensive change,” Jones said. “It’s very, very rare that we have a moment where the stars are aligned in this way.” He later warmly embraced the Kochs' lawyer.
Lawmakers lined up to promote their criminal justice reform bills at the event, which also included remarks from Piper Kerman, the author whose memoir about her experience in federal prison inspired the Netflix series “Orange Is the New Black.”
Sens. Rob Portman, a Republican, and Al Franken, a Democrat, spoke about a bill they’re reintroducing this year to provide more mental health services to prisoners and to fund special mental health courts that emphasize treatment over doing time. Rep. Jim Sensenbrenner (R-Wis.) said he believes lawmakers should review every federal regulation or law that carries prison time to decide if it’s merited or not. Sen. Cory Booker (D-N.J.), who introduced a bill to expunge nonviolent criminal records of juvenile offenders that he’s co-sponsored with Sen. Rand Paul (R-Ky.), sat with audience members, saying he wanted to listen and learn.
Holden told the crowd that the Koch brothers have been involved in criminal justice reform for more than 10 years, after a few of their employees were prosecuted for violating environmental regulations in Texas in the 1990s. (The charges against the employees were later dropped, and Koch Industries settled with the government.) The Kochs have since invested in providing defense lawyers for poor people and other reform efforts, and have signaled it will be a major policy priority this year. Their support could lend momentum to the bipartisan reform bills that have already been introduced. “What we should be using the prison system for is people we’re afraid of,” Holden said, not for nonviolent offenders.
I am always pleased to see talk of significant criminal justice reform making headlines. But as I have often said before (and as I likely will say again a lot in the months ahead), "talking the talk" about criminal justice reform is always much easier than "walking the walk" especially at the federal level. So, if you come upon this notable cast of characters at your SuperBowl party this weekend, you should find it much easier to talk about criminal justice reform than to predict when all this talk will result in significant legislative action.
We are coming on five years since the libertarian/small-government wing of the GOP began talking a lot about significant sentencing reforms (right after the 2010 election cycle). And yet, circa 2015, we still have not yet seen any proposals for "real comprehensive change" making the rounds on Capitol Hill. Indeed, even (much-too) small proposed changes reflected in bills like the Smarter Sentencing Act have gained precious little momentum.
I am cautiously hopeful that the involvement of major capitalists like the Kochs will help fuel the work of major activists to turn all the talk into real action. But, ever the realistic (though optimistic) cynic, I am not expecting Congress to enact any truly landmark criminal justice reform legislation anytime soon.
After adopting new execution drug laws, Ohio delays all executions for additional year
As explained in this AP article, a full year after Ohio had difficulties executing Dennis McGuire and a month after the state enacted new execution laws, Ohio officials decided to kick the execution can another year down the road by rescheduling all 2015 scheduled executions. Here are the details:
The state on Friday rescheduled executions for seven death row inmates as it tries to find new lethal drugs, meaning no inmate will be put to death in Ohio in 2015. The announcement affects six executions this year, including one set for Feb. 11 for condemned child killer Ronald Phillips, and one previously scheduled for 2016 that was pushed farther back.
The move, which was expected, follows a federal judge's previous order delaying executions while the state puts a new execution policy in place, the state said. The delays also allow the state time to find supplies of new drugs, according to the Department of Rehabilitation and Correction. The new execution policy calls for Ohio to use drugs it doesn't have and has had difficulty obtaining in the past.
The delays mean that for the first time Ohio won't execute anyone in a calendar year since the state resumed putting inmates to death in 1999. The state put one inmate to death last year and three in 2013. A total of 11 executions are scheduled for 2016. Under the revised schedule, the next execution is Jan. 21, 2016, when Phillips is scheduled to die for the 1993 rape and killing of his girlfriend's 3-year-old daughter in Akron.
Tim Young, the state public defender, applauded the move, saying there was no need for executions "until we have answers to the numerous legal and medical questions posed by lethal injection."
Earlier this month, the state ditched its two-drug method after problematic executions in Ohio a year ago and Arizona in July. Ohio's supplies of those drugs, midazolam, a sedative, and hydromorphone, a painkiller, were already set to expire this year. Underscoring concerns about midazolam, the U.S. Supreme Court earlier this week ordered Oklahoma to postpone lethal injections executions using the drug until the court rules in a challenge involving midazolam.
Ohio's execution policy now calls for it to use versions of thiopental sodium or compounded pentobarbital, neither of which it has. Death penalty experts question where Ohio would find supplies of thiopental sodium, saying it's no longer available in the U.S. and overseas imports would run afoul of importing bans.
Notably, before Ohio started having major problems with lethal injection protocols, the state had become one of the most active and effective states carrying out death sentences. The state completed nearly 50 executions from 2002 through 2012, and a few years in that period it was second only Texas in the number of executions completed. But lethal injection difficulties and litigation entailed that the state could carry out only three executions in 2013, only one in 2014 and now there will be none in 2015.
I expect that Ohio officials will be try pretty hard to get its machinery of death up and running again in 2016, and it is possible a Supreme Court decision about lethal injection protocols in Oklahoma might actually end up helping the state get its execution chamber back on line. But the 140 men and one woman now on Ohio's death row (and their lawyers) should be breathing a little easier today. And it now seems that much more likely that the majority of these murders will end up just dying in prison rather than be subject to an affirmative state killing.
January 30, 2015
Aggressive litigation prompts federal prosecutor in Chicago to drop stash house sting
As reported in this lengthy front-page Chicago Tribune article, aggressive litigation by the federal defense bar concerning aggressive federal drug-war tactics have now resulted in federal prosecutors backing off the most aggressive federal criminal charges these tactics have generated. The article is headlined "Chicago prosecutors quietly drop charges tied to drug stash house stings," and here is how it begins:
Federal prosecutors in Chicago have quietly dropped narcotics conspiracy charges against more than two dozen defendants accused of ripping off drug stash houses as part of controversial undercover stings that have sparked allegations across the country of entrapment and racial profiling.
The decade-old strategy is also under fire because federal authorities, as part of a ruse, led targets to think large quantities of cocaine were often stashed in the hideouts, ensuring long prison terms upon conviction because of how federal sentencing guidelines work. Experts said the move by Chicago prosecutors marked the first step back by a U.S. attorney's office anywhere in the country in connection with the controversial law enforcement tactic.
In the court filings seeking the dismissals, prosecutors gave no clue for the unusual reversal, and a spokesman for U.S. Attorney Zachary Fardon declined to comment. But the move comes two months after the 7th U.S. Circuit Court of Appeals issued a stinging rebuke to the policy, ordering a new trial for a Naperville man who alleged he was goaded into conspiring to rob a phony drug stash house by overzealous federal agents.
The stings, led by the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives, have been highly criticized for targeting mostly minority suspects, many of whom were drawn into the bogus rip-offs by informants who promised easy money at vulnerable points in their lives.
The cases are built on an elaborate ruse concocted by the ATF. Everything about the stash house is fictitious and follows a familiar script, from supposedly armed guards that need to be dealt with to the quantity of drugs purportedly stashed there. By pretending the house contains a large amount of narcotics, authorities can vastly escalate the potential prison time defendants face, including up to life sentences. Earlier this month, federal prosecutors in Chicago sought to drop drug conspiracy charges in seven of the nine pending stash-house cases, leading some of the judges to quickly approve the move without a hearing.
In each case, the defendants — 27 in all — still face weapons and other charges for the alleged scheme and potentially long prison sentences upon conviction. But without the drug conspiracy charges, the mandatory minimum sentences for most of the defendants would drop to just five years in prison from as much as 25 years, according to Alison Siegler, director of the Federal Criminal Justice Clinic at the University of Chicago Law School.
The ATF investigations have also faced legal backlash around the country, including in California, where last year two federal judges ruled the stings amounted to entrapment.
Katharine Tinto, a professor at the Benjamin N. Cardozo School of Law in New York, said hundreds of people nationally have been charged as part of the drug house ruse. The ATF has been using this sting for at least a decade, she said. Tinto said she believes the decision to drop the cases in Chicago is an acknowledgment of the fact that federal agents involved in the sting set the quantity of the phony drugs, a critical factor in driving the sentencing.
The dismissal of the seven cases likely "signals that the government is starting to take a critical look both at these tactics and the immense sentencing these tactics can bring," Tinto said. "In this tactic the drugs are imaginary, and the amount of the drugs is set by the government."
I have been preaching in recent years that I have come to believe that aggressive litigation taking on some of the worst extremes of the federal drug war and excesses of mass incarceration was more likely to "move the sentencing reform needle" as much, if not more, than legislative advocacy directed and a gridlocked Congress. This story reinforces my sense that more and more federal judges are growing more and more willing to criticize and seek to rein in what they more and more are seeing as federal prosecutorial overreach in the drug war and elsewhere.
Notable new commentary on Yates v. US and overcriminalization
Via email I learned about these two notable new commentaries discussing issues surrounding the federal criminal case Yates v. United States soon to be resolved by the Supreme Court:
SOX on Fish: A New Harm of Overcriminalization by Todd Haugh
Going Overboard: Yates and DOJ’s “Most Serious Offense” Charging Policy by Scott Coffina & Edward James Beale
January 29, 2015
George Toca now a free man ... and SCOTUS now lacks a live Miller retroactivity case
This local article from Louisiana, headlined "George Toca, La. inmate at center of debate on juvenile life sentences, to go free," reports on a remarkable turn of events in a case that was supposed to serve as the means for the Supreme Court to address the retroactivity of its Eighth Amendment Miller ruling. Here are the details:
A state prisoner from New Orleans who recently landed at the center of national legal debate about mandatory life sentences for youthful offenders won his freedom Thursday after 31 years in prison. Orleans Parish District Attorney Leon Cannizzaro’s office agreed to vacate his murder conviction.
George Toca, 47, is set to go free after pleading guilty instead to two counts of attempted armed robbery and one count of manslaughter from a 1984 stickup that ended with his best friend, Eric Batiste, fatally shot outside a convenience store on South Broad Street in Broadmoor.
Toca’s release almost certainly means the U.S. Supreme Court will scrap a scheduled hearing this spring on whether its 2012 decision in a case known as Miller v. Alabama, barring mandatory life sentences for juvenile convicts, is retroactive. The high court in November took up Toca’s case, above others, to settle an issue that affects about 1,000 convicts in Louisiana and three other states that have refused to apply the court’s ruling to older juvenile lifers.
A spokesman for Cannizzaro’s office said the DA will join in a motion with Toca’s attorneys to withdraw the Supreme Court case.
Toca, appearing briefly in court Thursday morning, pleaded guilty to the manslaughter count under an “Alford” plea, meaning he did not admit guilt but conceded that strong evidence could have led to his conviction. He returned to Angola State Penitentiary for processing, with his release expected late Thursday or Friday.
Newly elected Criminal District Court Judge Byron Williams granted the joint motion in a case that the Innocence Project New Orleans had pursued on Toca’s behalf for more than a decade. DA’s Office spokesman Christopher Bowman credited a warming relationship with Innocence Project attorneys, along with Toca’s productive years behind bars, for the decision to let him go free on the reduced charges.
Bowman called it “a just outcome,” also citing the vehemence of Batiste’s family in urging Toca’s release and the fact he will remain on parole for another 30 years under the deal. “In light of all those facts, the district attorney believed he was no longer a public safety risk,” Bowman said. “The District Attorney’s Office ... is not afraid to take a look at older cases.”...
Bowman insisted that the DA’s decision to come to a deal on Toca’s release was unrelated to the pending U.S. Supreme Court case, in which Cannizzaro’s office had been gearing up to argue against the retroactive application of Miller v. Alabama.
The high court didn’t ban states from sentencing some young killers to life without parole. But the 5-4 majority opinion insisted that courts must first weigh a defendant’s youth, adding that “we think appropriate occasions for sentencing juveniles to this harshest possible penalty will be uncommon.” The court said “youth matters for purposes of meting out the law’s most serious punishments,” citing “children’s diminished culpability and heightened capacity for change” when compared with adults.
In legal filings, Cannizzaro’s office argued that it would be a fool’s errand to force local judges, years or decades later, to discern a long-ago juvenile’s capacity for change. Advocates for juvenile lifers argued that the task would be made easier because judges can review an inmate’s record while behind bars. And they saw Toca’s case as a promising bellwether for what the high court justices might do....
According to the state, 272 Louisiana inmates had been sentenced as juveniles to life without the possibility of parole as of April 2013 — the bulk of them, like Toca, having been sentenced before the U.S. Supreme Court decision. State Supreme Courts in Pennsylvania, Michigan and Minnesota also have found that Miller v. Alabama does not apply retroactively, setting up the fight at the U.S. Supreme Court.
Toca’s vacated conviction and release will leave the issue unresolved for now, said Cara Drinan, an associate professor of law at Catholic University of America. Still, she expects the Supreme Court to take up the retroactivity question relatively soon in some other case, now that it has signaled its interest in settling the issue. “For George Toca, this is a victory and a great thing,” Drinan said. “For those of us looking at the bigger issue, and for the hundreds of people waiting for a resolution, we’ll have to wait.”
Examining the sources of an ever-aging US prison population
This Wall Street Journal article, headlined "U.S. Prisons Grapple With Aging Population: More Middle-Age Offenders Are Entering or Re-entering Facilities, Research Shows," explores why and how the population of incarceration nation is aging. Here are excerpts:
Criminal-justice experts often attribute the older prison population to harsher sentencing policies and antidrug laws adopted in the 1980s. The conventional wisdom is that enforcement of these laws led to longer sentences and more time served, which, in turn, is rapidly driving up the average age of inmates.
New research, however, offers an alternative view: The population of graying prisoners has exploded in recent years largely because more offenders ... are entering or re-entering prison in middle age. It is a finding that could force states to rethink their efforts to tamp down on the escalating costs of caring for older inmates.
“People are getting arrested and sentenced to prison at a higher rate in their 30s, 40s and 50s than they used to,” said Shawn Bushway, a public policy professor at the University at Albany who co-wrote a coming study on the aging of those incarcerated.
The average inmate generally costs $20,000 to $30,000 a year to incarcerate. Elderly prisoners, often defined as those older than 50, cost as much as three times more, researchers estimate, because they are more likely to have chronic medical conditions that require expensive treatments.
The population of U.S. prisoners over the age of 44 grew more than 8% annually from 1991 to 2011 — four times the rate of prisoners under the age of 35, according to the Bureau of Justice Statistics, the research arm of the Justice Department. The proportion of inmates 54 years or older nearly tripled in that time, from 3% to more than 8%. At the end of 2013, about 270,000 U.S. inmates were 50 years or older, out of a total prisoner population of more than 1.5 million, according to BJS.
Mr. Bushway’s research, based on U.S. Census surveys of state prisoners spanning from 1974 to 2004, suggests the trend is linked to high rates of reported drug use among older inmates — particularly those who came of age in the 1980s ... and have cycled in and out of prison for much of their adult lives....
A separate study on aging prisoners, funded by the Bureau, analyzed data from South Carolina, North Carolina, New York and California, where the proportion of prisoners 50 years or older more than doubled since 2000. The researchers, economist Jeremy Luallen and statistician Ryan Kling of consulting group Abt Associates, concluded that “rising admission age is the primary force driving the increase in the elderly group.”
The changing nature of offenses over time doesn’t explain the trend, nor do changes in sentencing severity, which had “virtually no impact” on the size of the group, they wrote. “Policy makers are missing an important part of the problem,” Mr. Luallen said in an interview. As states try to rein in costs of mass incarceration, Mr. Luallen said, they would do well to focus more on the flow of older people into the prison system than on reducing their sentences.
“Changing sentencing laws won’t affect” the increasing number of older prisoners, said John Pfaff, a professor at Fordham University School of Law, who studies mass incarceration. “You need to change the behavior of the district attorneys.”
The issue of recidivism continues to pose problems for state governments struggling to contain the costs of mass incarceration. A 2014 U.S. Bureau of Justice Statistics study that examined state prisoners released in 2005 found that about two-thirds were arrested for a new crime within three years.
Harsher laws, such as those that mandate a life sentence after a person is convicted of three felonies, indisputably have led to more time behind bars for some. Bryce Peterson, a researcher at the Urban Institute, said longer sentences have “some effect” on the aging prison population. “It would be misleading to downplay that too much.” Mr. Peterson said he believed that Messrs. Luallen and Kling would have found that the length of time served in prison played a larger role in the graying of the inmate population had their study looked back further than 2000.
With overwhelming public support, Japanese Justice Minister continues with capital punishment
As reported in this news article, "Japan is to continue applying the death penalty after over 80 percent of the country's population expressed their support for the measure, media Thursday cited Justice Minister Yoko Kamikawa as saying." Here is more:
A recent government survey revealed that 80.3 percent of respondents backed the death penalty, while 9.7 percent felt that it should be abolished. Kamikawa termed the results as positive and said strict and careful measures would continue in this regard.
She said there was no intention of revising the current policy in the short term, despite having hinted at times the possibility of introducing life sentences for capital crimes. "Most people believe it is unavoidable for those who committed extremely malicious crimes to face (execution)," Kamikawa said, according to the Asahi daily newspaper.
Kamikawa also made a reference to the global trend against the death penalty and the petition by activists for Japan to end capital punishment. "It is a problem associated with what country Japan should be, and it is (the Japanese people's) business," she said.
Eleven convicts have been executed since the current government took office in December 2012. Japan, along with the US, is the only developed and democratic country that still imposes the death penalty.
I tend also to include India on a list of "developed and democratic country that still imposes the death penalty," but maybe some would dispute characterizing India as developed.
"The Eternal Criminal Record"
The title of this post is the title of this important new book by James B. Jacobs. Here is a description of the book via the publisher's website:
For over sixty million Americans, possessing a criminal record overshadows everything else about their public identity. A rap sheet, or even a court appearance or background report that reveals a run-in with the law, can have fateful consequences for a person’s interactions with just about everyone else. The Eternal Criminal Record makes transparent a pervasive system of police databases and identity screening that has become a routine feature of American life.
The United States is unique in making criminal information easy to obtain by employers, landlords, neighbors, even cyberstalkers. Its nationally integrated rap-sheet system is second to none as an effective law enforcement tool, but it has also facilitated the transfer of ever more sensitive information into the public domain. While there are good reasons for a person’s criminal past to be public knowledge, records of arrests that fail to result in convictions are of questionable benefit. Simply by placing someone under arrest, a police officer has the power to tag a person with a legal history that effectively incriminates him or her for life.
In James Jacobs’s view, law-abiding citizens have a right to know when individuals in their community or workplace represent a potential threat. But convicted persons have rights, too. Jacobs closely examines the problems created by erroneous record keeping, critiques the way the records of individuals who go years without a new conviction are expunged, and proposes strategies for eliminating discrimination based on criminal history, such as certifying the records of those who have demonstrated their rehabilitation.
Some end-of-month highlights from Marijuana Law, Policy and Reform
Though it has been less than two weeks since my last round-up of notable new posts from Marijuana Law, Policy and Reform, a lot of cannabis commotion justifies another link review:
- "Medical or Recreational Marijuana and Drugged Driving"
Intriguing review of early impact of California's Prop 47 reducing offense seriousness
Though marijuana reform is the national criminal justice reform story most significantly driven by voter initiatives, voters in California the last two major election cycles have been enacting significant sentencing reforms through the initiative process. In 2012, voters approved Proposition 36 to revise the state's tough Three Strikes Law; last year, voters passed Proposition 47 to reduced various crimes from felonies to misdemeanors. These developments provide yet another reason to view California as the most interesting and dynamic of all states in the history of modern sentencing reform.
The Los Angeles Times now has this lengthy new article detailing some early impacts of Prop 47. The piece is headlined "Prop. 47 brings a shift to longer time spent behind bars," and here are excerpts:
For decades, Los Angeles County jail inmates divided their sentences by five, 10 or 20 to calculate the time they would actually spend behind bars. Because of overcrowding, they left after completing as little as 5% of their sentences.
Now, as Proposition 47 begins to reshape the California criminal justice system, they are serving much more of their time. The new law, passed by voters Nov. 4, reduced drug possession and other minor crimes from felonies to misdemeanors. The county jail population plummeted and sheriff's officials began increasing the time served for the remaining inmates to 90% or more.
Most of the affected inmates will end up serving only half of that, due to automatic credits prescribed by state law, but the change is still profound. Because of Proposition 47, others who would have landed in jail are not being arrested as street cops take a pass because of the low stakes. At the Los Angeles County Sheriff's Department, bookings are down by 23% and narcotics-related arrests are down 30%.
Other California counties are also seeing significant decreases in their jail populations as a result of the new law. In Los Angeles County, the altered landscape has led to renewed questions about how big the new Men's Central Jail should be, as well as concerns about whether those now being issued misdemeanor citations are missing out on drug treatment that could turn their lives around.
Under the new law, the cost savings from smaller county jail populations, which the state legislative analyst estimated could be hundreds of millions of dollars, will be channeled into substance abuse and mental health programs, victim services and reducing school dropouts and truancy.
But some, including law enforcement officials, worry that people who need help will not enter the system. Already, fewer are opting for mandatory drug treatment programs because they face little to no jail time as an alternative. "What concerns me is that some of those offenders were getting treatment," said Gardena Police Chief Ed Medrano, the Los Angeles County representative for the California Police Chiefs Assn., which lobbied against Proposition 47. "If they're getting arrested less, that doesn't mean their drug addiction problems have gone away."
Early release has been a near-constant feature in Los Angeles since 1988, when a federal judge allowed sentenced inmates to be let out early as a temporary solution to overcrowding. Many inmates were freed after serving only 10% of their time. A 2006 Times investigation found that nearly 16,000 were rearrested for new offenses while they could have been finishing out their sentences. Sixteen were charged with murder....
Over the years, the county has tried solutions including electronic monitoring, work programs and firefighting camps. But nothing had a dramatic impact until Proposition 47 passed with nearly 60% of the vote.
More than 400 county jail inmates have been released in the last three months because their crimes — which include theft and writing bad checks as well as drug possession — have been downgraded to misdemeanors under Proposition 47. That, combined with the reduced number of arrests, helped bring the jail population down to a low of about 15,000 from 18,600. Since early release has been scaled back, the inmate count has rebounded to about 17,400.
Inmates with county sentences for burglary, theft, DUI and the like are now serving 90% of their terms, whereas men had been serving 20% and women serving 10%. Those convicted of more serious offenses such as child molestation or assault with a deadly weapon are now serving 100% of their terms, compared with 40% previously. About 3,000 inmates are serving the longer county sentences; most of those serving state sentences are not affected.
The smaller jail population has allowed sheriff's officials to complete overdue repairs and has freed up more space for educational programs, Cmdr. Jody Sharp said. Dist. Atty. Jackie Lacey praised the news that serious offenders in Los Angeles County are now serving most of their terms, calling it "a positive and welcome effect" that could help her office strike better plea deals. "Every defendant asks the following question: 'When can I get out?' " Lacey said. "If the 'when can I get out' is far in the future, it could impact if they plead guilty early or if they demand a trial."
Lacey emphasized that keeping a close eye on crime and recidivism rates will be key to understanding the full impact of the new law.
In Orange County, the inmate count has dropped nearly 22% since Proposition 47 took effect after the election, allowing sheriff's officials to close a section of the James A. Musick jail. Previously, there were no extra beds for new arrivals on the long weekends when court was not in session. "Now, we've got the luxury of not waiting on pins and needles — now we have some space," said Lt. Jeff Hallock, a department spokesman.
This report provides early evidence that Prop 47 has succeeded in redirecting California's state law enforcement and correction resources principally to the most serious offenders presenting the greatest risk to public safety. Of course, long-term developments and analyses will been needed to conclusively assess whether the Prop 47 reform is an unqualified success. But this early report sure is encouraging (and perhaps explains why the folks at Crime & Consequences, who had substantive posts assailing Prop 47 before the November vote, have not substantively discussed the law since its passage).
Some prior related posts on California's Prop 47:
- Initiative details and debates over California's Proposition 47 to reduce severity of various crimes
- Is California's Prop. 47 a "common-sense" or a "radical" reform to the state's criminal laws?
- Reviewing California's debate over lowering sentences through Prop 47
- Notable pitch for California Prop 47 based in mental health concerns
- New York Times editorial makes the case for California's Prop 47
- California sentencing reform initiative Prop 47 wins big getting almost 60% support
- Impact of California's Prop 47 already being felt ... by defense attorneys and police
January 28, 2015
Notable political debate over adding LWOP to punishments in Canada
The lengthy press article from Canada, headlined "Tories to table life in prison without parole, shifting legal landscape," spotlights an interesting debate over LWOP sentences up north. Here are excerpts:
The Conservative government is developing legislation that would mean some murderers will have no hope of release from prison. The new penalty would apply to several categories of those convicted of first-degree murder: killers of police and jail guards, anyone who kills during a sexual assault, kidnapping or act of terrorism and for especially brutal murders. The current penalty for first-degree murder is an automatic life sentence with the first chance for a parole review after 25 years, and the supervision of parole authorities for life.
The planned legislation has yet to be approved by cabinet, a source said. The departments of Public Safety and Justice, which are working together on the new bill, were told to speed up their work after a man shot two Mounties in St. Albert, Alta., on Jan. 17, killing one. The bill is expected to be introduced within a couple of weeks of a new terrorism bill coming on Friday, the source said....
A spokesperson for Justice Minister Peter MacKay declined to comment directly on the categories outlined by The Globe, but quoted the Throne Speech of October, 2013, saying: “Canadians do not understand why the most dangerous criminals would ever be released from prison. We are currently reviewing options to ensure that a life sentence actually means life.”...
The United States is one of the last democracies with the death penalty, and all states but Alaska have the penalty of “life without parole.” The U.S. Supreme Court says life without parole shares some characteristics with the death penalty in that it alters an offender’s life by a “forfeiture that is irrevocable.” Prisoner advocates have dubbed it “the other death penalty,” and “death by incarceration.”
Since Canada abolished the death penalty in 1976, the homicide rate has fallen from 3.08 victims for every 100,000 people to 1.44, its lowest rate since 1966. “It is so patently a sentence that reeks of vengeance that it’s hard to have a sensible political debate,” Archie Kaiser, a specialist in criminal law at Dalhousie’s Schulich School of Law in Halifax, said of life without parole. Vengeance is “really something we have cast aside in Canada, at least since we removed the death penalty.”
Gary Clewley, a defence lawyer in Toronto whose clients are mostly police officers, said the law professor “confuses vengeance with legitimate public indignation. You can’t compare a trial and appellate process at great public expense where people are guaranteed legal counsel and a trial of their peers to a lynch mob.”...
Until now, the Conservative government has taken an incremental approach to life penalties. In 2011, it removed the “faint-hope clause,” which allowed those convicted of murder to apply to a jury after 15 years for the right to an early parole hearing. Also in 2011, it allowed judges to add together the periods of parole eligibility for multiple murders. Two Canadians have been sentenced under the provision, including Justin Bourque, 24, sentenced to life with no eligibility for 75 years in the shooting deaths of three Mounties in New Brunswick last spring....
The cost could be enormous: Canada has 1,115 offenders who were sentenced to life for first-degree murder, of whom 203 have been released on parole; the average cost to keep a man in maximum security is $148,000, compared with $35,000 on parole, figures from Correctional Service Canada show. Forty years in jail would cost nearly $6-million for one person in maximum-security, and $6-billion for 1,000.
As of 2006, lifers on parole had killed 58 people. That category includes those such as Robert Bruce Moyes, sentenced to life as an armed bank robber, who, while on parole killed seven people in Abbotsford, B.C., in 1996. In recent years, the website of Correctional Service Canada has described those serving life sentences as “the most likely to succeed on parole.” A spokesperson said on Monday the agency could not identify, for privacy reasons, the last first-degree murderer released on parole who killed again, nor how many have done so since 1976.
"Lynch to Cast Herself as Departure From Holder in Bid to Be Attorney General"
The title of this post is the headline of this New York Times article previewing the start today of hearings concerning President Obama's nomination for Eric Holder's replacement as Attorney General. Here is how the article starts:
Loretta E. Lynch on Wednesday will cast herself as an apolitical career prosecutor who is a departure from Eric H. Holder Jr. when she faces a new Republican-controlled Judiciary Committee that includes some of the administration’s fiercest critics in Congress.
“I look forward to fostering a new and improved relationship with this committee, the United States Senate, and the entire United States Congress — a relationship based on mutual respect and constitutional balance,” Ms. Lynch said in testimony prepared for the confirmation hearing. “Ultimately, I know we all share the same goal and commitment: to protect and serve the American people.”
If she is confirmed, Ms. Lynch would be the nation’s first African-American woman to serve as attorney general. Her allies have sought to differentiate her from Mr. Holder, an outspoken liberal voice in the administration who clashed frequently with Republicans who accused him of politicizing the office.
In particular, Ms. Lynch is expected to face tough questioning about her opinion of the president’s decision to unilaterally ease the threat of deportation for millions of unauthorized immigrants. Mr. Holder approved the legal justification for that action, enraging some Republicans.
In these hearings, I am expecting some Senators to ask some questions about sentencing reform and federal marijuana policy. I hope to be able to provide some coverage and commentary about what gets asked and what nominee-Lynch says in future posts.
Prior related posts:
- Prez Obama selects Loretta Lynch to replace Eric Holder as US Attorney General
- Notable past remarks by AG-nominee Lynch on criminal justice reform to the Convention on the Elimination of Racial Discrimination
- Will this week's confirmation hearings for AG nominee Loretta Lynch produce any fireworks?
Did feds just win the drug war?: kingpin twin drug dealers get kingly sentencing break thanks to cooperation
As detailed in this AP story, headlined "Trafficking Twins Get Sharply Reduced Sentences," the sentencing benefits of cooperating with the government was on full display yesterday in a Chicago federal courtroom. Here are the details:
Identical twin brothers who ran a drug-trafficking ring that spanned much of North America were sentenced Tuesday to 14 years in prison after a judge agreed to sharply reduce their penalty as a reward for becoming government informants and secretly recording Mexico's most notorious drug lord.
In a rare courtroom display, it was a federal prosecutor who poured praise on Pedro and Margarito Flores, portraying them as among the most valuable traffickers-turned-informants in U.S. history and describing the courage they displayed in gathering evidence against Joaquin "El Chapo" Guzman and other leaders in Mexico's Sinaloa cartel.
With credit for time served awaiting sentencing and for good behavior in prison, the brothers, now 33, could be out in as little as six years.
Chief U.S. District Judge Ruben Castillo likened Americans' sense of security to walls and scolded the brothers for introducing drugs that fueled violence and despair. "You devastated those walls. You knocked them down," he said. The twins' cooperation was the only thing that spared them from an actual life sentence, Castillo told the brothers. But, he added, they would still serve a life sentence of sorts — having to look over their shoulders the rest of their lives in constant fear of a deadly attack by an assassin working for the cartel they betrayed.
Castillo said the twins were the most significant traffickers ever in his court. But he said he had also never seen traffickers at the height of their power and wealth come forward to offer to become government witnesses, as the siblings had.
The twins appeared in court with the same olive-green clothes and the same closely cropped haircuts. Both kept tapping one foot nervously throughout the hourlong hearing. Just before the judge imposed a sentence, each walked to a podium separately to speak, appearing uneasy. "I'm ashamed. I'm embarrassed. I'm regretful," Margarito Flores said. "There is no excuse."
So successful was their criminal enterprise that the jewelry-loving, Maserati-driving twins smuggled $1.8 billion — wrapped in plastic and duct tape — into Mexico, according to prosecutors....
Prosecutor Mike Ferrara had asked for a sentence of around 10 years. He noted the twins' cooperation led to indictments of Guzman and more than 50 others. The twins began cooperating with agents in 2008 and engaged cartel leaders for months, sometimes switching on recorders and shoving them in their pockets. They continually risked death, Ferrara said.
The 5-foot-4 twins' trafficking careers soared after they left Chicago to live in Mexico around 2004. In mid-2005, they met with Guzman in his secret mountain compound to cut major drug deals, government filings said. The brothers ran their operation from a Mexican ranch. Their network stretched from its Chicago hub to New York, Detroit and Washington, D.C., and to Los Angeles and Vancouver, British Columbia....
Later Tuesday, Chicago-based U.S. Attorney Zachary Fardon announced new charges against several Sinaloa figures stemming from the twins' cooperation. Asked about their lenient sentences and the message it sent to other would-be cartel traffickers, Fardon said it should demonstrate, "You can right some of what you did wrong ... by helping the government."
So does this all mean that the federal drug war can be declared officially over, and that we can claim the good guys officially won this 50-year costly war? After all, this was a sentencing of two of the most significant drug traffickers, and they have become the "most valuable traffickers-turned-informants in U.S. history." Surely this must scare off and deter all other current and would-be drug dealers and all the trillions in taxpayer dollars spent on the drug war has now been vindicated as money well spent.
Of course, I am asking the question above and in the title of this post with my tongue firmly planted in my cheek. A key problem with the drug war, as I see it, is that even a huge drug war "victory" in catching and prosecuting some drug dealers typically will make it that much more valuable and enticing for other drug dealers to seek to replace the captured criminals. I fear that , unless and until illegal drug demand is reduced, illegal drug suppliers will be plentiful in part because the drug war makes their activities potentially much more lucrative.
January 27, 2015
"Back to the Future: The Influence of Criminal History on Risk Assessment"
The title of this post is the title of this timely new paper by Melissa Hamilton now available via SSRN. Here is the abstract:
Evidence-based practices providing an empirical basis for predicting recidivism risk have become a primary focus across criminal justice decision points. Criminal history measures are the most common and heavily weighted factors in risk assessment tools, yet is such substantial reliance fully justified? The empirical and normative values placed on criminal history enjoy such commendation by criminal justice officials, practitioners, and the public that these practices are rarely questioned. This paper fills the gap by introducing and exploring various issues from legal, scientific, and pragmatic perspectives.
As a general rule, a common assumption is that past behavior dictates an individual’s likely future conduct. This axiom is often applied to criminal behavior, more specifically, in that prior offending is considered a primary driver to predict future recidivism. Criminal justice officials have a long history of formally and informally incorporating risk judgments into a variety of criminal justice decisions, ranging from bail, sentencing, parole, supervisory conditions, and programming. A more contemporary addendum represents empirically informed risk assessment practices that integrate actuarial tools and/or structured professional judgments. Various criminal history measures pervade these newer evidence-based practices as well.
Instead of presuming the value and significance of prior crimes in judging future recidivism risk, this Article raises and critically analyzes certain unexpected consequences resulting from the significant reliance upon criminal history in risk assessment judgments. Among the more novel issues addressed include: (1) creating a ratchet effect whereby the same criminal history event can be counted numerous times; (2) resulting in informal, three-strikes types of penalties; (3) counting nonadjudicated criminal behaviors and acquitted conduct; (4) proportionality of punishment; (5) disciplining hypothetical future crime; (6) punishing status; and (7) inadequately accounting for the age-crime curve. In the end, criminal history has a role to play in future risk judgments, but these issues represent unanticipated outcomes that deserve attention.
More good crime news for first part of 2014 according to FBI data
As reported in this official press release, the "the FBI’s Preliminary Semiannual Uniform Crime Report reveal overall declines in both the number of violent crimes and the number of property crimes reported for the first six months of 2014 when compared with figures for the first six months of 2013." Here are some highlights detailing this great news via the FBI:
All the offenses in the violent crime category — murder and non-negligent manslaughter, rape (revised definition), aggravated assault, and robbery — showed decreases when data from the first six months of 2014 were compared with data from the first six months of 2013. The number of murders declined 6.0 percent, the number of rapes (revised definition) declined 10.1 percent, aggravated assaults decreased 1.6 percent, and robbery offenses decreased 10.3 percent.
Violent crime decreased in all city groupings. The largest decrease, 6.7 percent, was noted in cities with fewer than 10,000 in population.
Violent crime declined in each of the nation’s four regions. The largest decrease, 7.6 percent, was noted in the Midwest, followed by 6.6 percent in the Northeast, 3.0 percent in the South, and 2.7 percent in the West.
All three offenses in the property crime category — burglary, larceny-theft, and motor vehicle theft — showed decreases in the number of offenses for January to June 2014 when compared with data for the same months of 2013. Burglary offenses dropped 14.0 percent. There was a 5.7 percent decrease in the number of motor vehicle thefts, and a 5.6 percent decrease in larceny-theft offenses.
Each of the city population groups had decreases in the overall number of property crimes. Law enforcement agencies in cities with populations under 10,000 inhabitants reported the largest decrease, 8.9 percent.
All four of the nation’s regions showed declines in the number of property crime: 12.5 percent in the Midwest, 7.6 percent in the Northeast, 5.9 percent in the South, and 5.8 percent in the West.
As I have said before, this great news on crime rates is also great news for those eager to encourage continued reform of state and federal criminal justice policies and practices. In recent years, the federal system and many state systems have experienced consequential reductions in some sentencing levels and in incarceration rates, and drug-offense reforms have been especially pronounced. That crime rates continue to fall throughout this period suggests — though, importantly, does not conclusively prove — that these sorts of reforms are not have an adverse impact on public safety.
"The Humane Death Penalty Charade"
The title of this post is the headline of this New York Times editorial. Here are excerpts:
When the United States at last abandons the abhorrent practice of capital punishment, the early years of the 21st century will stand out as a peculiar period during which otherwise reasonable people hotly debated how to kill other people while inflicting the least amount of constitutionally acceptable pain.
The Supreme Court stepped back into this maelstrom on Friday, when it agreed to hear Warner v. Gross, a lawsuit brought by four Oklahoma deathrow inmates alleging that the state’s lethalinjection drug protocol puts them at risk of significant pain and suffering.
In accepting the case, the justices had to change its name. The lead plaintiff, Charles Warner, was executed on Jan. 15 after the court, by a vote of 5-to-4, denied him a lastminute stay. That may sound strange until you consider that while it takes only four justices to accept a case for argument, it takes five to stay an execution. The case is now named for another inmate, Richard Glossip. (On Monday, the Oklahoma attorney general requested temporary stays of the impending executions of Mr. Glossip and the other two plaintiffs.)...
The justices have been here before. They upheld the constitutionality of lethal injection in 2008. But, since then, the battles over the practice have grown more warped. Many drug makers now refuse to supply their products for killing, leaving states to experiment on their inmates with other drugs, often acquired under cover of official secrecy and administered by authorities with no medical training. During a hearing last month on Oklahoma’s protocol, a state witness who testified that midazolam is effective appeared to rely on the website drugs.com, not scientific studies. It would all be a laughable farce if it didn’t involve killing people.
There is disingenuousness on both sides. Many who oppose the death penalty, this page included, are obviously not interested in identifying more “humane” methods of execution; the idea itself is a contradiction in terms. Nor are many capital punishment supporters concerned with how much suffering a condemned person might endure in his final moments. In the middle sit the armchair executioners who engage in macabre debates about the relative efficiency of, say, nitrogen gas.
It is time to dispense with the pretense of a painfree death. The act of killing itself is irredeemably brutal and violent. If the men on death row had painlessly killed their victims, that would not make their crimes any more tolerable. When the killing is carried out by a state against its own citizens, it is beneath a people that aspire to call themselves civilized.
I love the phrase "armchair executioners," even though I could not help reacting with a classic "Taxi Driver" response.
Recent related posts:
- Oklahoma geared up to restart its machinery of death nine months after ugly execution
- Over dissent of four Justices, SCOTUS lets Oklahoma execution go forward (... and Florida executes around the same time)
- Seven years after Baze, Supreme Court takes up another lethal injection challenge
- The SCOTUS culture of death: "Execution Case Highlights the Power of One Vote"
January 26, 2015
Could charter schools within the prison system help reduce recidivism?
The question in the title of this post is prompted by this interesting article from Georgia headlined "Gov. Deal wants new charter high schools for prison system." Here are excerpts:
Gov. Nathan Deal in the both the amended 2015 and 2016 budgets is [recommending the legislature devote] money to help lower the recidivism rate in Georgia’s prisons. He’s including over $15 million dollars for two new charter high schools in the prison system so inmates can actually earn a diploma as opposed to just a GED. He says seven out of ten Georgia inmates have neither.
“Education can open the door of opportunity while shutting the revolving door that has plagued our prison system for far too long,” says Deal.
The recommendation includes nearly 30 academic positions for the new schools which would begin with the 2015-2016 school year. Deal says the schools would partner with the newly renamed Georgia Career College System, formerly the state’s technical colleges, to teach vocational skills. He says private prisons would also be given incentives to do the same.
“With a high school diploma or a GED, these individuals will certainly be better equipped to get a job and hopefully able to assume a greater pursuit of a job opportunity in the future because they have this basic education behind them,” says Deal.
He’s also including money to help inmates better assimilate into society once released through a transitional housing program for those inmates considered at highest risk for reoffending. Another $5 million is being proposed to expand the state’s accountability courts to keep non-violent offenders out of prison.
"Beyond a Reasonable Disagreement: Judging Habeas Corpus"
The title of this post is the title of this notable new article by Noam Biale now available via SSRN. Here is the abstract:
This Article addresses ongoing confusion in federal habeas corpus doctrine about one of the most elemental concepts in law: reasonableness. The Supreme Court recently announced a new standard of reasonableness review for habeas cases, intended to raise the bar state prisoners must overcome to obtain federal relief. This new standard demands that errors in state court decisions be so profound that “no fairminded jurist could disagree” that the result is incorrect. Scholars have decried the rigid and exacting nature of this standard, but very little interpretive work has yet been done to theorize what it means and how it should be used.
This Article develops a theoretical framework for understanding the new habeas standard and shows that the assumptions lower courts are making about its meaning are wrong. It concludes that federal courts need more data beyond the mere possibility of fairminded disagreement to find that a decision is reasonable. The Article draws on scholarship and jurisprudence in other areas of law that employ reasonableness standards, and argues that the missing data should be supplied by examining the state adjudicative process. The case for focusing on state process in federal habeas cases is not new, but this Article represents the first argument that the new habeas standard not only permits such a focus but, in fact, requires it.
The SCOTUS culture of death: "Execution Case Highlights the Power of One Vote"
The title of this post is drawn from the headline of this New York Times piece by Adam Liptak that highlights why the Supreme Court's decision on Friday to grant cert to review Oklahoma's execution protocol is so interesting and creates much death penalty drama for this coming week and the months ahead. Here is how the piece starts:
There are nine justices on the Supreme Court. It takes four votes to hear a case, but it takes five to stay an execution.
That can leave a lethal gap. A death penalty case can be important enough to claim a spot on the court’s docket of perhaps 75 cases a year. But the prisoner who brought it may not live to see the decision.
In agreeing on Friday to hear a challenge to the chemicals Oklahoma uses to execute condemned prisoners, the court brought fresh attention to the life-or-death importance of a single vote. The lead petitioner in Friday’s case, Charles F. Warner, was already dead. He was executed eight days earlier, after the Supreme Court refused to stay his execution. The vote was 5 to 4.
“What happened to Charles Warner was not an isolated glitch,” said Eric M. Freedman, a law professor at Hofstra University and the author of a new article on the court’s voting procedures in capital cases. “It was a typical, if high-visibility, example of a systemic flaw in the machinery of justice that has gone unrepaired for far too long.”
The case the court agreed to hear used to be called Warner v. Gross, No. 147955. On Friday, taking account of Mr. Warner’s death, the court changed it to Glossip v. Gross, No. 147955. It may change again. The new lead petitioner, Richard Glossip, is scheduled to be executed on Thursday. The other two petitioners in the case also have execution dates in coming weeks, all of them well before the court is expected to hear arguments in the case, in April.
The Supreme Court did not say on Friday whether it would stay the other three executions. In a statement, Scott Pruitt, Oklahoma’s attorney general, made a pointed reference to the fact that it took only four votes to grant review. He seemed to indicate that the state was prepared to proceed with the executions.
The petitioners’ lawyers will doubtless seek stays. In Mr. Glossip’s case, they will have to act quickly. How the court responds will illuminate the current vitality of its fitful commitment to a procedure it sometimes uses to bridge the voting gap: the “courtesy fifth” vote to stay executions. Such votes are said to be available once the court makes a formal decision to grant review of a condemned prisoner’s case.
Recent related posts:
- Oklahoma geared up to restart its machinery of death nine months after ugly execution
- Over dissent of four Justices, SCOTUS lets Oklahoma execution go forward (... and Florida executes around the same time)
- Seven years after Baze, Supreme Court takes up another lethal injection challenge
Shouldn't true fiscal conservatives question a federal program with 600% recent spending growth?
The question in the title of this post is part of my reaction to this new fact sheet released by the Pew Public Safety Performance Project. The Pew document is titled "Growth in Federal Prison System Exceeds States': Federal imprisonment rate, taxpayer costs soar as states curtail expansion, protect public safety," and here is how it starts (footnoted omitted):
Between 1980 and 2013, the federal imprisonment rate increased 518 percent, from 11 inmates for every 100,000 U.S. residents to 68. During the same period, annual spending on the federal prison system rose 595 percent, from $970 million to more than $6.7 billion in inflation-adjusted dollars. Prison expenditures grew from 14 percent of the Justice Department’s total outlays to 23 percent, increasingly competing for resources with law enforcement and national security programs.
States, like the federal government, recorded sharp increases in incarceration and corrections costs over the past three decades. However, between 2007 and 2013, many states made research-driven policy changes to control prison growth, reduce recidivism, and contain costs. While the federal imprisonment rate continued to rise during that period, the state rate declined.
Folks like Bill Otis and some other defenders of the modern state of the modern federal criminal justice system are often suspect when I (and others like Senator Rand Paul and Grover Norquist) assert that a true commitment to conservative values should prompt serious questions about the size and operation of federal criminal justice system. And I fully understand how folks committed to certain social conservative values, and who also believe the federal government should be actively promoting certain social values, can continue to support strongly the federal war on drugs and ever-increasing federal expenditures in service to promoting certain social values.
But, as the title of this post suggests, I do not understand how anyone who is truly committed to fiscal conservative values is not now compelled to examine whether it is wise to keep spending/borrowing more and more federal monies to keep growing the federal prison system. As this Pew document and many others have highlighted, a significant number of states have been able to reduce its spending on incarceration over the last decade without any obvious harmful impact on public safety. My advocacy for federal sentencing reform is based largely on the hope and belief that the feds can now do the same.
High-profile capital trials put spotlight on dynamics of death-qualification of jurors
This new AP story, headlined "Death-qualified' juror search slows marathon, theater cases," effectively reviews the distinct notable realities that attend jury selection in a capital case. Here are some excerpts:
One prospective juror was brutally frank when asked whether he could consider a sentence of life in prison for the man accused of bombing the Boston Marathon. "I would sentence him to death," he said, then added: "I can't imagine any evidence that would change how I feel about what happened." Another prospective juror said he couldn't even consider the death penalty, telling the court, "I just can't kill another person."
The two men are on opposite sides of the capital punishment debate, but both unlikely to make it on the jury for the trial of Dzhokhar Tsarnaev: to be seated for a death penalty case a juror must be willing — but not eager — to hand down a sentence of either life or death.
The process of finding "death qualified" jurors has slowed down jury selection in federal case against Tsarnaev, who is charged with setting off two bombs that killed three people and injured more than 260 during the 2013 marathon. It is expected to do the same in the state trial of James Holmes, the man accused of killing 12 people and injuring 70 others in a suburban Denver movie theater in 2012.
The process is designed to weed out jurors who have strong feelings for or against the death penalty. A 1985 ruling from the U.S. Supreme Court said a juror can lawfully be excused if his views on the death penalty are so strong that they would prevent or substantially impair his ability to follow the law.
But death penalty opponents have long said the process is fundamentally unfair. They argue that death-qualified juries do not represent a true cross-section of the community and are less likely to be sympathetic to the defense. "You end up with a jury with less women, less blacks, less Democrats ... you end up with a jury that is skewed in ways that make it probably more conservative, more accepting of prosecution arguments, of state authority," said Richard Dieter, executive director of the Death Penalty Information Center, a nonprofit organization that opposes executions.
The Capital Jury Project, a consortium of university researchers, interviewed about 1,200 jurors in 353 capital trials in 14 states beginning in the early 1990s. The group's research has shown that death penalty juries are more likely to convict and that jurors often make up their minds about what punishment to hand down long before they're supposed to, said William Bowers, director of the project....
Death penalty opponents have argued that to get around this kind of pre-judgment, separate juries should be chosen to hear evidence in the guilt phase and the punishment phase. But that idea has not gained traction....
In the Holmes case, an unprecedented 9,000 jury summonses were mailed. As of Friday, 210 prospective jurors had been excused over four days. Individual questioning is set to begin next month. In the marathon bombing case, 1,373 people filled out juror questionnaires. Individual questioning of prospective jurors has been slowed as the judge has probed people at length about their feelings on the death penalty. The judge had originally said he hoped to question 40 jurors each day, but during the first five days only averaged about 15.
Capital punishment supporters say the current system of screening out strong pro- and anti-death penalty jurors is the only fair way to choose juries in death penalty cases. "The process simply says that jurors must be willing to abide by the law," said John McAdams, a Marquette University professor who supports the death penalty.
"The Unconvincing Case Against Private Prisons"
The title of this post is the title of this intriguing recent article by Malcolm M Feeley just now appearing on SSRN. Here is the abstract:
In 2009, the Israeli High Court of Justice held that private prisons are unconstitutional. This was more than a domestic constitutional issue. The court anchored its decision in a carefully reasoned opinion arguing that the state has a monopoly on the administration of punishment, and thus private prisons violate basic principles of modern democratic governance. This position was immediately elaborated upon by a number of leading legal philosophers, and the expanded argument has reverberated among legal philosophers, global constitutionalists, and public officials around the world. Private prisons are a global phenomenon, and this argument now stands as the definitive principled statement opposing them.
In this Article, I argue that the state monopoly theory against privatization is fundamentally flawed. The Article challenges the historical record and philosophy of the state on which the theory is based, and then explores two other issues the theory wholly ignores: private custodial arrangements in other settings that are widely regarded as acceptable if not exemplary and third-party state arrangements that are universally hailed as exemplary.
The Article presents first-of-its-kind empirical data on private prisons in Australia, discusses the implications of readily available information on juvenile facilities, and explores interstate compacts on prisoner transfers. The Article maintains that the state monopoly theory erroneously asserts that privatization is inconsistent with the modern state, and concludes with a call for policymakers and judges to imbue their future privatization decisions with local knowledge and time-honored pragmatism.
January 25, 2015
Will this week's confirmation hearings for AG nominee Loretta Lynch produce any fireworks?
This new National Law Journal article suggests the answer to the question in the title of this post may actually be no. The piece is headlined "Nominee Isn't Drawing a Crowd: Loretta Lynch hasn't inspired the passions that Eric Holder Jr. did — but that might be by design." Here are excertps:
Since Loretta Lynch's nomination on Nov. 8 for attorney general, the Senate Judiciary Committee has received about a dozen letters supporting her — a volume that starkly contrasts with the outpouring Eric Holder Jr. inspired six years ago.
That may not be a bad start for a nominee whose Senate hearings are scheduled to begin on Jan. 28. But by the time Holder's confirmation hearings began on Jan. 15, 2009, the committee had received more than 100 letters from law enforcement, victims' rights and civil rights organizations — among other groups and individuals — weighing in on Holder's fitness for the job.
A former White House lawyer who worked on previous Obama administration nominations told the NLJ that the dearth of formal submissions concerning Lynch is less about a lack of enthusiasm for her than the fact her work in the law hasn't generated sharp, easily defined divisions on Capitol Hill.
Lynch's critics so far haven't pointed to any particular moment in her career that raises questions about her fitness to serve as the nation's top law enforcement officer. Indeed, some Republicans intend to challenge Lynch as a proxy for the Obama administration at large — with a focus on the president's executive action on immigration....
As of press time, the Judiciary Committee had posted 13 letters addressing Lynch's nomination. Lynch's public support, so far, represents a cross-section of federal prosecutors, district attorneys, in-house corporate attorneys, African-American lawmakers and law enforcement officers. She has the formal support of general counsel at Alcoa Inc. and Estée Lauder Cos. Inc., the National Organization of Black Law Enforcement Officers, the Federal Bar Council, the Congressional Black Caucus and the National District Attorneys Association....
From almost as soon as Obama nominated Lynch, some Senate Republicans signaled they wouldn't stand in her way. In November, for example, Sen. Orrin Hatch, R-Utah, said Lynch "looks good to me." Sen. Lindsey Graham, R-S.C., called her a "solid choice." That does not mean there won't be opposition. The difference between 2009 and 2015 in the political climate and the Senate's composition — now with the Republicans in control — may mean Lynch will be confirmed by a narrower margin than Holder's 75-21 tally, which included 19 Republican "yea" votes. "The pattern of recent confirmations has been that nominees will get just enough to get through," Gorelick said.
Gun Owners of America intends to voice its concerns to the judiciary committee for those senators looking for reasons to vote "no" against Lynch. In a proposed letter, the group said Lynch has "no real paper trail." The letter tied her to justices Elena Kagan and Sonia Sotomayor, as well as to Holder, each of whom the Gun Owners of America calls "a committed anti-gun radical." "She's kind of like Eric Holder in a skirt," organization president Larry Pratt told the NLJ. Although Lynch has made her name as a longtime prosecutor, Pratt's letter highlights sustained criticism of Holder as an activist attorney general.
Prior related posts:
- Prez Obama selects Loretta Lynch to replace Eric Holder as US Attorney General
- Notable past remarks by AG-nominee Lynch on criminal justice reform to the Convention on the Elimination of Racial Discrimination
"The Politics of Mercy: Is clemency still the third rail? We may find out."
The title of this post is the headline of this lengthy piece by Ken Armstrong at The Marshall Project. Here are excerpts:
For decades, the conventional wisdom has been that clemency equals danger. Any governor who grants pardons or commutations to convicted felons invites political risk – with no potential benefit. In Massachusetts, Mitt Romney signed not a single pardon, a record he later touted.
But when [Robert] Ehrlich was governor of Maryland from 2003 to 2007, he made clemency a priority, dedicating lawyers to screen requests and meeting monthly with senior aides to review applications. In the end, Ehrlich granted clemency more than 200 times. And should he run for president, he plans to hold up that record as a signature achievement, arguing that it shows he is someone who leads instead of cowers.... The GOP field could also include other candidates who have resisted convention, such as Ohio Gov. John Kasich, who has commuted the death sentences of five condemned inmates since 2011.
Is it possible that a willingness to grant clemency might now offer some political benefit? “I would give it a qualified yes,” says P.S. Ruckman Jr., a political science professor at Rock Valley College in Rockford, Ill., and editor of the Pardon Power blog. “I think increasingly there’s a sense that it’s a nebulous plus if you at least appear to be someone who takes the Constitution seriously and isn’t stuck in the 1980s, pushing the Willie Horton button.”...
Ehrlich says there has since been a cultural shift, with growing concern about harsh sentencing laws — for example, mandatory minimums — and a realization that “the drug epidemic is more appropriately viewed as a health issue than as a criminal justice issue.” The country’s booming prison population “is impacting so many people, so many families, so many careers, so many parents,” Ehrlich says. “It crosses every line.”...
Margaret Love, who served as U.S. Pardon Attorney under presidents Clinton and George H.W. Bush, says, “This is a function of the justice system that should not be subject to these political whims. I get sort of annoyed whenever I see it treated as a sort of holiday gift-giving. That’s not what it is. It’s part of the system, or at least ought to be.”
On Thursday, Love wrote a post on the website for the Collateral Consequences Resource Center, noting the symbolism of Virginia Gov. Terry McAuliffe’s recent summoning of the media to watch him sign a conditional pardon for an autistic inmate. “There may be no more telling sign that the ‘soft on crime’ label is losing its power over elected officials than McAuliffe’s decision to publicize this bedside act of mercy,” she wrote.
In the next campaign, no candidate would test the power of that label more than Mike Huckabee, who this month left his Fox News show to consider running. In his decade as Arkansas governor, Huckabee granted clemency more than 1,000 times. On Thursday, BuzzFeed published an unaired ad that Mitt Romney’s campaign had prepared during the 2008 race, tying Huckabee to the early release of a serial rapist who, once freed, committed murder. Romney’s campaign ultimately balked at using the ad.
Since then, Huckabee has become an even more inviting target. In 2009, in Washington state, a former Arkansas inmate named Maurice Clemmons shot and killed four police officers in a coffee shop. Nine years before, Huckabee had commuted Clemmons’s prison sentence, making him eligible for parole.
It might seem that advocates for clemency would cringe at the prospect of a Huckabee candidacy in 2016, given his vulnerability to Willie Horton-type attacks. But Mark Osler, a law professor at the University of St. Thomas in Minneapolis, says, “I’ve told people for the last few years that one of the best things for clemency would be for Huckabee to run.”
What Osler and others see in Huckabee is an opportunity for an open discussion of what clemency is – and is not. “It does not lead to perfection, in the same way the jury system does not lead to perfection,” Osler says. “With clemency you have an independent moral actor who is unpredictable — and that’s the person receiving clemency. You can never guarantee that that person will not commit another crime.”
Clemency advocates believe Huckabee, an ordained minister, can make a persuasive case for mercy, particularly given how he links clemency to his Christian faith and to his belief in what he calls “restorative justice.”...
Ehrlich, unlike Huckabee, has not had any grants of mercy come back to haunt. And when talking about his embrace of clemency, he’s found support among dramatically different audiences, from a dinner co-hosted by the Charles Koch Foundation to a forum sponsored by George Soros’s Open Society Foundations. “So it’s hard right and hard left, but the audiences have generally the same view on this issue,” he says. In a speech three years ago, Ehrlich boiled his motives for making clemency a priority down to this: “Because it's the right thing to do. It's really not that complicated.”...
The field of potential presidential candidates also includes governors at the opposite end of this spectrum. Wisconsin Gov. Scott Walker, a Republican, has refused to grant any pardons, portraying them as an undermining of the criminal justice system, rather than as a way to recognize someone’s rehabilitation or help check an unduly harsh law or ill-conceived prosecution. To Ruckman, Walker is “on the wrong side of history. He’s a dinosaur on this one.”