December 19, 2015
An early set of takes on Prez Obama's clemency work to date
As first reported in this post (with has already generated an interesting set of comments), yesterday Prez Obama granted commutations of prison sentences to 95 federal inmates. And, as stressed in this posting from the White House blog, this development means that Prez Obama has now granted has now granted 184 commutations total -- more than the last five presidents combined." I think it is justifiable that the Obama Administration is now inclined to crow about its clemency record with respect to commutations, although it remains notable that Prez Obama has still granted precious few pardons and is still well behind even the commutation pace set by Republican predecessors like Calvin Coolige and Herbert Hoover.
Helpfully, P.S. Ruckman over at Pardon Power is already hard at work providing lots of historical context (and other types of contexts) for assessing what Prez Obama has done in this space only 24 hours since this latest grant. Here are his recent postings, all of which merit checking out:
"On sentencing reform, we have to talk more about reentry"
The title of this post is the headline of this notable new commentary authored by Ashley McSwain recently published by The Hill. Here are excerpts:
Congress displayed a refreshing and all too rare example of bipartisanship this fall when the Judiciary Committee voted 15 to 5 to move the Sentencing Reform and Corrections Act of 2015 to a floor vote. If it passes, the bill would mark a significant step in fixing our broken criminal justice system. Thirty years of tough-on-crime policies — such as mandatory minimum sentencings and three-strike policies for drug-related crimes — has led to over a 750 percent increase in our prison population. People go in, but they don’t come out.
Congress can change that. But in order to ensure success, our communities need to rethink how we help citizens return to the community once their time is served -- what we call “reentry.” As we talk about sentencing reform, we have to talk more about reentry and rehabilitation. It’s not enough to simply reduce sentences; we need to increase access to education, housing, job training, mentorship, and counseling to prepare people to reenter....
As the executive director of Community Family Life Services — a non-profit organization located in the shadow of the Capitol building – We work with women and men everyday who are returning home following a period of incarceration. When they are released from prison or jail, many are homeless, have limited clothing or any possessions other than what they brought to prison. Many don’t have adequate job training or updated skills to reenter the work force. Finally, they don’t have strong family or community supports which are central to a successful reentry strategy.... Faced with these challenges, returning citizens are at high-risk of drug addiction, recidivism, and even death. Without robust reentry programs, sentencing reform will be all for naught.
Currently, the Sentencing Reform and Corrections Act of 2015 calls for increasing rehabilitation programs for “eligible” prisoners over the next six years and monitoring reentry. That’s a good start, but it’s not nearly enough. But it’s also not up to Congress alone. It takes a village. As we rethink sentencing laws and work towards a more just and equitable criminal justice system, we need to come together — government agencies, foundations, non-profits, individuals — and help create livable communities here in Washington, D.C. and across the country.
The Federal Bureau of Prisons should be encouraged to forge more relationships with reentry programs and encourage those in prison to work towards rehabilitation from day one, regardless of the length or terms of their sentences. We need more citizens to volunteer as mentors and work with men and women both in prison and out of prison to ensure each returning citizen has the support, strength, and resolve necessary to make the transition to open society and live up to their full potential....
As Congress considers a vote on the Sentencing Bill, I invite members to visit us at 3rd and E St NW. Talk to the women returning home to DC so they can better understand the challenges they face and what it will take for them to succeed. Every person who steps into our resource center is capable of a successful reentry, but they need our support — everyone’s support — to achieve it.
December 18, 2015
Updating the bubbling lower-court vagueness mess six months after Johnson
Over at Casetext, Leah Litman has this effective and extensive new commentary (with lots of links) titled "Circuit Splits & Original Writs: What the Supreme Court must address — and now — in the wake of Johnson v. United States." Here is how it gets started:
Johnson v. United States held that the “residual clause” of the Armed Career Criminal Act (ACCA) is unconstitutionally vague. In a previous Casetext post, I described an emerging circuit split regarding whether the Supreme Court had “made” Johnson retroactive. The Anti-terrorism and Effective Death Penalty Act (AEDPA) — in particular title 28 section 2255(h)(2) — permits prisoners to file a second or successive petition for post-conviction review if the petition contains “a new rule of constitutional law, made retroactive to cases on collateral review by the Supreme Court.” By early August, less than two months after Johnson, the U.S. Courts of Appeals for the Seventh and Eleventh Circuits had issued conflicting opinions about whether the Supreme Court has “made” Johnson retroactive.
In the last four months, that circuit split has deepened. And, as my prior post explained, the statutory restrictions on post-conviction review mean that the Supreme Court cannot review by way of a petition for certiorari the court of appeals’ determination to allow a second or successive petition for post-conviction relief to proceed. Under title 28 section 2244(b)(3)(E), “the grant or denial of an authorization by a court of appeals to file a second or successive application shall not … be the subject of a petition … for a writ of certiorari.” So while the circuits disagree about whether the Supreme Court has “made” Johnson retroactive, the Supreme Court cannot resolve whether it has “made” Johnson retroactive in the traditional way, by granting certiorari to review one of the court of appeals’ decisions.
More troubling, it is has become prohibitively difficult for the Supreme Court to weigh in on the split by granting review in a case involving a first petition for post-conviction review because the United States is conceding that Johnson is retroactive. The courts of appeals and district courts have uniformly (and rightly, in my view) agreed with the United States, granting prisoners’ “first” — that is, initial — petitions for post-conviction review in cases where prisoners were sentenced under ACCA’s residual clause. And because no one is appealing these decisions — the government agrees Johnson is retroactive, and the decisions are favorable to prisoners — the Supreme Court will not be able to clarify whether Johnson is retroactive, or “make” Johnson retroactive, by granting certiorari in a case involving a “first” petition for post-conviction review.
In this post, I’ll highlight several circuit splits that have emerged in light of Johnson — about whether the decision is applicable to various provisions of the federal Sentencing Guidelines, and about whether the rule that Johnson announced has been made retroactive. I’ll also argue that the Supreme Court should exercise its discretion to weigh in on whether it has made Johnson retroactive by way of one of the extraordinary writs it has the power to issue. The Court has on its docket at least two petitions seeking such non-traditional habeas relief, and it will consider the petitions some time in January.
In the six months since Johnson was decided, at least two circuit splits have emerged. One concerns whether other provisions, including the career offender Guideline of the Federal Sentencing Guidelines, are also unconstitutionally vague. There is also some uncertainty about whether various procedural hurdles — specifically retroactivity and procedural default — bar defendants from being resentenced. The second circuit split concerns whether the Supreme Court has “made” the rule invalidating ACCA’s residual clause retroactive.
Prez Obama commutes 95 federal prison sentences and grants 2 pardons
As reported in this official White House press release, this afternoon "President Barack Obama granted commutations of sentence to 95 individuals and pardons to two individuals." The release has a list of all the recipients of these clemency actions and their crimes and sentences, and I am hopeful I will have time (and help) in the days ahead to assess whether there is any unique elements to these latest clemency actions. For now, I can just say huzzah and reprint part of this notable press release titled "Clemency Project 2014 Welcomes Commutation of 95 Federal Prison Sentences":
In his first clemency grants since July, President Barack Obama commuted the sentences of 95 prisoners today, 27 of whom were applicants whose petitions were supported by Clemency Project 2014.
"While it is my hope that President Obama will increase the use of his clemency power going forward, one can only be happy for each and every of today's grantees and their loved ones." said Cynthia W. Roseberry, project manager for Clemency Project 2014. "Clemency Project 2014's unprecedented army of volunteer lawyers has been steadfast in its efforts to meet the Project's commitment to ensure that every applicant who appears to meet the criteria has a volunteer lawyer to prepare and submit a timely clemency petition. We are determined to do our part to make clemency a cornerstone of the Obama legacy."
"We take President Obama at his word that there is no ceiling on the number of commutations he will grant before leaving office. And so while we are grateful for every single commutation, there are many hundreds more who deserve relief. We urge the President to confound the skeptics by making 2016 an historic year for clemency grants," said Norman L. Reimer, executive director of the National Association of Criminal Defense Lawyers, a partner organization in Clemency Project 2014.
"Dignifying Madness: Rethinking Commitment Law in an Age of Mass Incarceration"
The title of this post is the title of this notable new paper available via SSRN authored by Jonathan Simon and Stephen Rosenbaum. Here is the abstract:
Modern nation-states have been trapped in recurring cycles of incarcerating and emancipating residents with psychiatric disabilities. New cycles of enthusiasm for incarceration generally commence with well-defined claims about the evils of allowing “the mad” to remain at liberty and the benefits incarceration would bring to the afflicted. A generation or two later, at most, reports of terrible conditions in institutions circulate and new laws follow, setting high burdens for those seeking to imprison and demanding exacting legal procedures with an emphasis on individual civil liberties. Today, we seem to be arriving at another turn in the familiar cycle. A growing movement led by professionals and family members of people with mental health disabilities is calling for new laws enabling earlier and more assertive treatment.
Effective accounting of how hard it is to account accurately for intricacies of modern mass incarceration
The strangely named Xenocrypt on the website Medium has a terrific new posting titled "Why You Don’t Understand Mass Incarceration." I recommend a full read of this lengthy post, and here are excerpts highlighting why:
“Mass incarceration” usually refers to the historically high U.S. incarceration rate, which is the share of the population in state and federal prison at any given time. Starting in 1980 or so, incarceration rates had huge growth after decades of relative consistency....
But there’s a big problem. The incarceration rate — who’s in prison right now — follows from two basic questions, which those famous graphs (and phrases like “the prison population”) mash together:
1. Who did we send to prison in the first place, and for what? How much has “mass incarceration” meant expanded incarceration? Which people are going to prison who’d never have gone under other policies? There’s a moral version of the question, too: What should we send people to prison for?
2. How long were they in prison for? How much has “mass incarceration” meant deepened incarceration? Which people would have gone to prison anyway but are spending more time incarcerated, either serving longer sentences or cycling through the system over and over again? Again, there’s a moral version of the question: How long should people be in prison for?
Both of those questions are important, but they’re distinct topics, at right angles to each other analytically and morally: “should drug offenders go to prison at all?” is pretty different from “how long should convicted murderers serve in prison?”. The next time you read an article about incarceration in the popular press or on social media, though, try to see if it’s even aware of the distinction. (For example, “reducing the prison population” is a pretty meaningless phrase — does it mean having fewer people go to prison or having people go to prison for less time? One reason you don’t understand mass incarceration: the phrase “the prison population”.)
It’d be hard enough to understand how those two questions interact if we knew how to answer both of them, but no one knows how to answer either one. There’s been a lot of impressive, interesting work trying to answer who goes to prison for how long (John Pfaff has been a big influence on this piece) and even the best of it is hampered by limited or unreliable data and difficult inferences, while obviously there isn’t much consensus on who should....
Quick: How many people really were sent to state or federal prison in the United States since 1978? Don’t be surprised if you don’t know, since as far as I can tell no one else does either.
If you care about incarceration, then that should trouble you. This is, after all, the set of human beings that we’re talking about when we talk about mass incarceration. If we really understood mass incarceration then we would know a great deal about them. We would know how many were African-American or white, how many served one, two, or ten terms in total, how many had different kinds of criminal histories prior to incarceration, how many only went to prison on drug offenses, how many went to prison on drug offenses then went back on violent offenses, and so on (and how all of those things changed over time and between different states and places).
But we don’t know any of that. We don’t even know how to count them. And if we don’t know how to count how many people have been to prison, then we don’t really know how mass incarceration affected real human beings....
We have some idea of how many prison terms there have been. The Bureau of Justice Statistics (BJS) lists about 12.7 million “new court commitments” to state and federal prison since 1978 in their National Prisoner Statistics (NPS) data, which is my main source here. Of course, that doesn’t mean that 12.7 million different people were sent to prison between 1978 and 2014, since some people had multiple prison terms....
Let’s say I’m right that around 7.5 million people were sent to state and federal prison since 1978. Here’s another question that should be simple: How many of them wouldn’t have gone to prison without “mass incarceration” policies — and what does that mean, anyway? It’s clear that new prison terms did increase after 1978, so presumably a lot fewer people would have gone to prison without whatever it was that changed, but how many fewer people? More like two million or more like six million?
Nobody knows, but we can make up some numbers, and maybe that’s a start. For example we can consider a somewhat arbitrary hypothetical: What if new prison terms (new court commitments) had stayed constant per capita since 1978, when the rate was 57 in 100,000? Under that hypothetical, there would have been about 5.6 million new prison terms since 1978, not 12.7 million. I’ve illustrated this in the [reprinted] chart, which has the incarceration rate since 1978 in black, the rate of new prison terms in red, and the hypothetical of constant new terms per capita in blue.
December 17, 2015
"Leaders With Criminal Histories Should Be Included in Reform Debate"
The title of this post is the headline of this notable new Huffington Post commentary authored by Rev. Vivian Nixon Become, who is Executive Director of the College and Community Fellowship and Co-Founder of the Education from the Inside Out Coalition. Here are excerpts:
When tech companies hold panels on diversity consisting entirely of white men, there is an outcry — and rightly so. And when Congressional hearings on women's reproductive rights are devoid of actual women, the public is similarly aghast. The reason for this outrage is easy to understand. The people whose lives, careers, and bodies are impacted by these systems should be allowed to speak from direct experience, and are best positioned to guide meaningful decision-making.
So, why is there no uproar when policy decisions on criminal justice don't consider the recommendations of formerly incarcerated people? It's high time that those who have direct experience with mass incarceration get a seat at the table in policy conversations on reform.
As a country, we've finally come to terms with the impact of a 500 per cent increase in our prison population over the last 30 years. There is a bipartisan dialogue about the best ways to tackle the failures of America's criminal justice system. But when the nation's leading politicians and thinkers gather to address these issues, they rarely include the people who will be most impacted by policy shifts, and who bring a valuable perspective — those who have actually experienced the lifetime consequences of criminal conviction.
Many men and women with criminal history records are leaders actively working to create meaningful change, both behind the bars and once they re-enter society. I know this firsthand — while I was incarcerated in a New York state correctional facility, I spent time tutoring women in basic adult education and high school equivalency courses. Upon my release, I was eager to find a way to pursue higher education. Through the College and Community Fellowship and the Education from the Inside Out Coalition, I've worked with countless individuals who've similarly turned their lives around and helped their peers to do the same.
Why aren't these men and women seen as experts in their own cause? Sadly, society continues to ostracize the formerly incarcerated and devalue their experiences. The "tough on crime" 1990s didn't just increase our prison populations; it also allowed us to dehumanize people in prison, or those who have a criminal record. We assigned them terms like "felon," "con," and "inmate" and reduced them to their crimes — regardless of the length of their sentence and whether or not they were expected to re-enter society.
Demonizing incarcerated and formerly incarcerated individuals permitted us to leave them out of daily American life. Even worse — we excluded them from conversations about their own fates and continued to punish them with collateral consequences, long after they had served their time. In America, every sentence is a life sentence....
[F]ormerly incarcerated leaders are mobilizing. This December, 200 formerly incarcerated men and women from across the Northeast gathered in New York to discuss methods to end mass incarceration, after similar regional conferences held in the South and on the West Coast. They spoke directly and honestly with representatives from the federal government about their personal experiences and stories.
These candid conversations with people who have lived through prison and become leaders in the reform movement are invaluable for shaping criminal justice reform. The more the voices of people with criminal record histories are heard, the harder it will be to silence them — and the more likely we are to be outraged when they are excluded from conversations that impact their lives. With more than 70 million members of our society living with criminal records, we can't afford to ignore their experiences. Let's open up a seat at the table for these leaders.
Justice Department urges SCOTUS to refuse to take up original suit about marijuana brought by neighbor states against Colorado
As discussed here by Rob Mikos over at my Marijuana Law, Policy & Reform blog, late yesterday the US Solicitor General filed an amicus brief in the Supreme Court concerning the suit brought by Nebraska and Oklahoma against Colorado seeking various kinds of legal relief in the wake of Colorado's legalization of recreational marijuana. Rob provides this basic background and summary of the filing:
Per its practice, SCOTUS had requested the SG’s input. The brief can be found via this link. (To provide some background, the SG handles all litigation involving the United States before SCOTUS, and it also commonly files amicus briefs in SCOTUS cases in which the U.S. is not a party. The SG’s positions can be quite influential on the Court.) For earlier postings on this case, see here, here and here.
In a nutshell, the SG argued that SCOTUS should refuse to exercise original jurisdiction over the action. Why? Perhaps most importantly, the SG suggested that the NE / OK suit didn’t fit the mold of cases over which SCOTUS had traditionally exercised original jurisdiction – namely, cases in which one state had directly harmed another. Importantly, the SG argued that CO hadn’t directly injured its neighboring states, e.g., by exporting marijuana or authorizing private citizens to do so. Rather, any injury NE / OK have suffered is more directly traceable to the actions of private parties who buy marijuana in CO and then take it outside the state.
Because it focused on SCOTUS practice, the SG did not need to weigh in on the merits of the underlying action. But I think the argument the SG makes favors CO, if SCOTUS (or another court) ever had to decide the matter. After all, if CO is not directly responsible for the injury to NE / OK’s regulatory interests, it’s hard to see why CO could be held responsible for any injury to federal regulatory interests. In other words, if CO isn’t responsible for people using marijuana in NE / OK, then it arguably isn’t responsible for people using marijuana in CO either.
As the SG itself notes, even if SCOTUS declines original jurisdiction over the suit, NE / OK could still file it in a federal district court. Of course, it would have to overcome some daunting procedural hurdles there as well (e.g. ,standing), as noted in the SG brief.
I am hopeful I will have time in the coming days to closely analyze this SG amicus brief and to post some additional commentary at the Marijuana Law, Policy & Reform blog or here. In the meantime, here is how the Discussion section of the SG's brief gets started:
The motion for leave to file a bill of complaint should be denied because this is not an appropriate case for the exercise of this Court’s original jurisdiction. Entertaining the type of dispute at issue here — essentially that one State’s laws make it more likely that third parties will violate federal and state law in another State — would represent a substantial and unwarranted expansion of this Court’s original jurisdiction.
"Is the Solicitor General Playing a Shell Game With the Supreme Court Over Johnson Retroactivity?"
The title of this post is the title of this notable, lengthy commentary by Steve Vladeck over at PrawfsBlawg, which gets started this way:
I've already written a pair of posts about the very significant current conflict among the circuits over the retroactive effect of the Supreme Court's June 2015 in Johnson v. United States, and the extent to which the Court may need to use an application for extraordinary relief (perhaps including an "original" writ of habeas corpus) to resolve that split — given (1) the unavailability of certiorari to review denials of second-or-successive habeas petitions; (2) government's agreement that Johnson may be retroactively enforced; and (3) the one-year statute of limitations, which likely requires all Johnson-based claims to be filed by June 26, 2016. And in my most recent post, I noted that the Solicitor General had already recommended denial of review in one case by reference to three pending "original" applications — perhaps hinting that it would support the Court's using one or all of those cases as a vehicle for settling the circuit split (and clarifying that Johnson is indeed retroactive).
In the past week, the government has effectively mooted one of the three original cases (by completely reversing a position it had taken earlier in different litigation involving the same prisoner), and has filed briefs opposing extraordinary relief in the other two. As I explain in the post that follows, these actions (and the arguments in the briefs) give rise at least to the appearance that, even though the Solicitor General agrees that Johnson is retroactive on the merits and should therefore be enforceable by federal prisoners through both original and second-or-successive applications for post-conviction relief, the government is perfectly content to run out the clock — and to not support efforts to have the Supreme Court so hold before next June's deadline.
A few prior related posts:
- SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
- A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
- How many hundreds (or thousands?) of ACCA prisoners could be impacted by a big ruling in Johnson?
- How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
- Should SCOTUS deal with Johnson retroactivity through an original habeas petition?
Curious Cato commentary attacks Obama Administration for failing to change prosecutorial charging policies that have been changed
As regular readers know, I have often bashed the Obama Administration for too much talk and too little action in the arena of criminal justice reform. But because I always try to ground my criticisms in facts and to give credit to the Administration for its actions, I must call out as misinformed and misguided this new Cato commentary by Nat Hentoff headlined "Obama Ignores Judge’s Plea for Justice Reform."
The Hentoff commentary properly notes that the "charging policies that federal prosecutors are forced to follow are the one area of criminal justice reform that the president of the United States has the authority to impose unilaterally." But the commentary suggests, wrongly in my view, that through the 2010 Holder memorandum (first discussed here) the Obama Administration failed to change federal charging policy for the better.
In addition, and even more troublesome, the Hentoff commentary completely fails to mention the important 2013 Holder memorandum (first discussed here) and a 2014 Holder follow-up memo (discussed here) concerning charging of mandatory minimums and recidivist enhancements in federal drug cases. Also, and not to be overlooked in the context of federal charging policies, the Obama Administration has been quite bold when issuing a series of major charging directives that encourage federal prosecutors largely to keep their noses out of state-level marijuana reform efforts. Collectively, these major charging directives from the Obama Administration's Department of Justice to line prosecutors have marked a significant shift in charging policies, and various federal sentencing statistics suggest these changed DOJ charging policies have been having a significant impact on federal criminal justice outcomes.
This all said, though I am troubled by the particulars in this Cato commentary, I see much merit in Hentoff's final critical sentence: "Obama continues to pay lip service to criminal justice reform by enacting half-hearted half-measures." Though I believe the Obama Administration has actually been quite effective and astute in the modification of federal prosecutorial charging policies, I also believe that it has been far less effective and astute in moving forward with an array of other badly needed federal criminal justice reform efforts.
December 16, 2015
Mixed outcomes for marijuana reform efforts in latest omnibus spending bill from Congress
Though there are a number of federal marijuana reform bills kicking around Congress, it seems very unlikely any of these bills will be moving forward anytime soon. In the meantime, though, marijuana reform issues and proposals keep coming up in debates over government spending bills. And, in the wee hours last night, Congress passed a big new spending bill that included (and failed to include) some notable marijuana reform provisions.
Representative Earl Blumenauer, a supporter of federal marijuana reforms, issued today this press release summarizing what appears and does not appear in the omnibus bill. Here is part of the text of this release:
Representative Blumenauer is pleased to see the inclusion of the following provisions in the omnibus package:
- The policy championed by Representatives Dana Rohrabacher (R-CA) and Sam Farr (D-CA) that prevents the Department of Justice from interfering in the ability of states to implement legal medical marijuana laws (Division B, Title V, Section 542)
- Language that supports industrial hemp research allowed under Section 7606 of the 2014 Farm Bill (Division B, Title V, Section 543 and Division A, Title VII, Section 763)
Representative Blumenauer is disappointed, however, that the bill falls short by not including provisions that:
- Make it easier for banks to do business with state-legal marijuana businesses
- Allow Veterans Health Administration providers to recommend medical marijuana to their patients in accordance with state law, a provision he championed in the House
Representative Blumenauer is also disappointed to see the continuation of a rider that interferes with Washington, DC's ability to pass laws dealing with the sale of marijuana for adult use.
Cross-posted at Marijuana Law, Policy & Reform.
Two notable new papers looking at life sentences from two notable perspectives
Via SSRN, I have recently noticed two new papers providing different perspectives on life sentences. Here are titles, links and the abstracts for both interesting pieces:
Abstract: A comparison between United Kingdom (UK) and Australian law concerning irreducible life sentences indicates that human rights charters and/or other strong human rights guarantees in a jurisdiction can produce improved protections for offenders against penal populism. In a series of challenges to draconian state laws that remove any possibility of parole from ten notorious murderers, the Australian courts steadfastly refused to intervene. Without clear authority to consider such legislation’s effect on human rights, the judges were careful to avoid creating any perception that they were undemocratically overriding Parliament’s will. But while the UK approach to irreducible life sentences is more desirable than that prevailing in Australia – especially concerning child offenders – Vinter v United Kingdom and succeeding events demonstrate that even courts that have explicitly been empowered to resolve human rights controversies possess far from a complete freedom, or ability, to effect change in this emotive area.
"Some Facts About Life: The Law, Theory, and Practice of Life Sentences" by Melissa Hamilton
Abstract: A diverse band of politicians, justice officials, and academic commentators are lending their voices to the hot topic of correcting the United States’ status as the world’s leader in mass incarceration. There is limited focus, though, upon the special role that life sentences play in explaining the explosion in prison populations and the dramatic rise in costs that result from providing for the increased needs of aging lifers. This Article highlights various ways in which life sentences occupy unique legal and political statuses. For instance, life sentences are akin to capital punishment in likely ending in death within prison environs, yet enjoy few of the added procedural rights and intensity of review that capital defendants command. In contrast to term prisoners, lifers cannot expect to reenter civil society and thus represent an exclusionist ideological agenda. The paper reviews whether life penalties remain justified by fundamental theories of punishment in light of new evidence on retributive values, deterrence effects, and recidivism risk. It also situates life sentences within an international moral imperative that reserves life penalties, if permitted at all, for the most heinous offenders and, in any event, demands period review of all long-term prison sentences.
This article provides a novel perspective, too, by presenting an empirical study in order to further investigate the law and practice of life sentences. Utilizing federal datasets, descriptive statistics and a multiple regression analysis offer important insights. The study makes an original contribution to the literature by exploring the salience of certain facts and circumstances (including demographic, offense-related, and case processing variables) in accounting for life sentence outcomes in the federal system. While some of the attributes of life sentenced defendants are consistent with current expectations, others might be surprising. For example, as expected, sentencing guideline recommendations, the presence of mandatory minimums, and greater criminal history predicted life sentences. Results also supported the existence of a trial penalty. On the other hand, lifers in the federal system were not representative of the most violent offenders or worst recidivists. Life sentences were issued across a variety of violent and nonviolent crimes, and in recent years a substantial percentage presented with minimal criminal histories. Regional disparities in the use of life sentences were also indicated. In concluding, this Article reviews potential remedies to the overreliance upon life penalties in the American justice system.
DPIC releases year-end report highlighting death penalty use "declines sharply" in 2015
This press release from the Death Penalty Information Center, titled "Death Penalty Use in 2015 Declines Sharply: Fewest Executions, Fewest Death Sentences, and Fewest States Employing the Death Penalty in Decades," provides a summary of the DPIC's 2015 year-end report on the administration of the death penalty in the United States. Here are excerpts from the press report:
The use of the death penalty in the U.S. declined by virtually every measure in 2015. The 28 executions this year marked the lowest number since 1991, according to a report released today by the Death Penalty Information Center (DPIC). As of December 15, fourteen states and the federal government have imposed 49 new death sentences this year, a 33% decline over last year’s total and the lowest number since the early 1970s when the death penalty was halted by the U.S. Supreme Court.
Only six states conducted executions this year, the fewest number of states in 27 years. Eighty-six percent of executions this year were concentrated in just three states: Texas (13), Missouri (6), and Georgia (5). Executions in 2015 declined 20 percent from 2014, when there were 35. This year was the first time in 24 years that the number of executions was below 30.
Death sentences have been steadily declining in the U.S. over the past 15 years. The country has now imposed fewer death sentences in the past ten years than in the decade just before the U.S. Supreme Court declared the death penalty unconstitutional in 1972. “The use of the death penalty is becoming increasingly rare and increasingly isolated in the United States. These are not just annual blips in statistics, but reflect a broad change in attitudes about capital punishment across the country,” said Robert Dunham, DPIC’s Executive Director and the author of the report....
Relatively few jurisdictions handed down death sentences in 2015. A single county — Riverside, California — imposed 16% of all death sentences in the U.S., and accounted for more death verdicts than any state, except for Florida. More than a quarter of the death sentences were imposed by Florida and Alabama after non-unanimous jury recommendations of death — a practice barred in all but three states. Texas, by contrast, imposed only two new death sentences in 2015. Nearly two-thirds of all new death sentences this year came from the same two percent of U.S. counties that are responsible for more than half of all death-sentenced inmates nationwide.
Even as the use of the death penalty declined, its most dangerous flaw remained apparent. Six death row prisoners were exonerated of all charges this year, one each in Alabama, Arizona, Florida, Georgia, Mississippi, and Texas. Since 1973, a total of 156 inmates have been exonerated and freed from death row. The number of people on death row dropped below 3,000 for the first time since 1995, according to the latest survey by the NAACP Legal Defense Fund.
At least 70 death row prisoners with execution dates in 2015 received stays, reprieves, or commutations, 2.5 times the number who were executed.
I have reprinted above the DPIC graphic emphasizing the continued decline in the number of death sentences imposed each year because I view that metric as the most significant and consequential in any serious discussion of the present status and future prospects of capital punishment throughout the US.
December 15, 2015
How many fundamental rights in the Bill of Rights can be uniquely regulated for adults under 21?
The answer to the question in the title of this post would seem to be "at least one" in light of an interesting ruling today by the Seventh Circuit in Horsley v. Trame, No. No. 14-2846 (7th Cir. Dec. 15, 2015) (available here). Here is the starting, ending and some in-between key passages from the panel decision:
Tempest Horsley’s application to possess an Illinois Firearm Owner’s Identification Card, commonly known as a “FOID card,” was returned to her as incomplete because she was over 18 but not yet 21 and her application did not contain a parent or guardian signature. Although she could have under Illinois law, she did not seek further review from the Director of the Illinois State Police. We disagree with Horsley that the Illinois statutory scheme violates her rights under the Second Amendment. Illinois does not impose a categorical ban on firearm possession for 18-to- 20-year-olds whose parents do not consent. Rather, when an applicant cannot obtain a parent or guardian signature, he or she may appeal to the Director for a FOID card, and the Director will make a determination. We conclude that this process for 18-to-20-year-olds is not unconstitutional, so we affirm the decision of the district court....
Horsley ... maintains that firearm possession by 18-to-20-year-olds falls within the scope of the Second Amendment. She emphasizes that persons over 18 can vote and serve in the military, get married without parental consent, and own land. Even though the age of majority was for many years 21, it is now 18, and so she argues that presentday 18-year-olds cannot be restricted from possessing firearms based on age alone. She points to historical evidence that she contends favors her position as well. The First Militia Act enacted by the United States Congress in 1792, for example, included 18-year-old men in the scope of those eligible for the militia. Because a minor could be a member of the militia and be armed, she reasons that the Second Amendment gives these persons a right to bear arms. We need not decide today whether 18-, 19-, and 20-year-olds are within the scope of the Second Amendment. Cf. Nat’l Rifle Ass’n, 700 F.3d 185 at 204-05 (also declining to resolve issue). Even if they are, our next step would be to turn to means-ends scrutiny of the regulation. Ezell, 651 F.3d at 703.... Significantly, although Horsley’s arguments treat the challenged statute as a categorical ban on firearm possession, the FOID Card Act does not in fact ban persons under 21 from having firearms without parent or guardian consent. Having a parent or guardian signature may speed up the process, but it is not a prerequisite to obtaining a FOID card in Illinois. Rather, a person for whom a parent’s signature is not available can appeal to the Director of the Illinois State Police [and any] denial is subject to judicial review....
The absence of a blanket ban makes the Illinois FOID Card Act much different from the blanket ban on firearm possession present in Heller. That there is not a categorical ban here also distinguishes this case from Planned Parenthood v. Danforth, 428 U.S. 52 (1976), to which Horsley points. There the Supreme Court struck down a “blanket provision” requiring the consent of a parent or person in loco parentis before an unmarried minor could have an abortion during her first 12 weeks of pregnancy unless necessary to preserve the mother’s life. Id. at 74....
The Illinois statute is substantially related to the achievement of the state’s interests. The goal of protecting public safety is supported by studies and data regarding persons under 21 and violent and gun crimes.... Trame also points to scholarly research on development through early adulthood that supports a conclusion that the Illinois FOID card application procedure for persons under 21 fits the state’s compelling interest in public safety....
We conclude that Illinois has shown a sufficient meansend relationship between the challenged statute and an important government interest. Illinois’s decision to use parents as a first check on firearm possession by persons under 21 is reasonable. The parent or guardian signature provision provides for an individualized assessment of the applicant’s fitness for possession of a firearm by a person likely to be in the best position to make such an evaluation. That signature also subjects the parent to liability for harm caused by firearm ownership. The legislature could reasonably conclude that many persons under 21 would not have the financial ability to compensate a person injured in a firearms incident, and the signature provision in the Illinois statute provides a means for an additional source of income in that event. If no parent or guardian is willing or able to sign the application, the Illinois statute provides that another person can make the individualized assessment — the Director of State Police. The challenged provisions in the FOID Card Act are substantially related to the state’s important interests, and we do not find the law unconstitutional.
NY Times debates " What Age Should Young Criminals Be Tried as Adults?"
The Room for Debate section of the New York Times has this new set of notable commentaries discussing the appropriate age for when an offender should (or should not be) brought into adult court for trial and sentencing. Here is the section's set up:
The governor of Connecticut has proposed raising the age juveniles can be tried as adults to 21 in attempts to keep more young people out of cycles of incarceration. Michigan, one of few states that still charge 17-year-olds as adults, is also considering raising the age for eligibility of juvenile status to 18. Is this a good idea? What age is appropriate for young law-breakers to be tried as adults?
Here are the contributions, with links via the commentary titles:
"Raise the Minimum Age to 21" by Vincent Schiraldi
"There Is No One-Size-Fits-All Age Limit" by Charles Stimson
"No Younger Than 18" by Carmen Daugherty
"Raising the Age Doesn’t Lower Juvenile Crime" by Charles Loeffler
Examining the crimmigration connections between sentencing and deportation
An important and timely new and growing speciality in the legal academy is "crimmigration," a label used to describe and analyze the intersections of criminal law and immigration law. In that vein, I just came across this notable new paper by Jason Cade available via SSRN titled "Return of the JRAD," which looks closely at the particular intersection of sentencing decision-making and deportation consequences. Here is the abstract:
Ignacio Diaz Aguilar’s felony conviction for document forgery made him a priority for deportation and disqualified him from the possibility of discretionary relief from removal, despite apparently significant equities and mitigating factors. And yet, when Federal District Court Judge Jack B. Weinstein sentenced Mr. Aguilar on August 14, 2015, he recommended that the government not deport Mr. Aguilar, even though no legal rules provided him with a route to that result. This essay places Judge Weinstein’s recommendation in a broader context, explaining its importance within the modern deportation regime. Statutory reforms and new agency practices have made criminal history the primary marker of noncitizen undesirability. Even longtime lawful permanent residents with only minor convictions often cannot escape removal or make a case for discretionary relief. As a result, the immigration system, as it works today, is in deep tension with the principle that under a humane system of justice the penalty should fit the crime.
Judge Weinstein’s sentencing order in Aguilar points the way to an important reform that would decrease the likelihood of disproportionate removals in cases that involve noncitizens with a criminal history. A sentencing judge’s decision to recommend against deportation in criminal cases offers immigration authorities an efficient, reliable, and cost-effective means of assessing a noncitizen’s positive and negative equities and determining whether removal is an appropriate part of the total penalty for the noncitizen’s transgression. In short, a sentencing judge’s recommendation against deportation could serve as a disproportionality rule of thumb, tempering and refining the role that criminal history plays in deportation decisions. This essay makes the case that immigration authorities could rely on such recommendations -- as well as other forms of relief from all-out criminal punishment (e.g., pardons, expungements, and deferred adjudications) -- as signals that a noncitizen’s encounter with the criminal system presumptively should not lead to deportation. To be sure, in some cases, that presumption should be overcome, particularly when the government can establish the noncitizen’s dangerousness or otherwise demonstrate social undesirability. But deportation should be the exception, not the rule, in cases where the end result of the criminal process involves elimination or mitigation of the underlying criminal conviction.
December 14, 2015
SCOTUS yet again summarily reverses circuit reversal of state death sentence
The Supreme Court this morning issued what has become a notably common type of summary reversal: in White v. Wheeler, No. 14-1372 (S. Ct. Dec. 14, 2015) (available here), the Justices via a per curiam opinion determined the Sixth Circuit was wrong to overturn a death sentence based on the exclusion of a juror. Here is part of how the opinion starts and ends:
A death sentence imposed by a Kentucky trial court and affirmed by the Kentucky Supreme Court has been overturned, on habeas corpus review, by the Court of Appeals for the Sixth Circuit. During the jury selection process, the state trial court excused a juror after concluding he could not give sufficient assurance of neutrality or impartiality in considering whether the death penalty should be imposed. The Court of Appeals, despite the substantial deference it must accord to state-court rulings in federal habeas proceedings, determined that excusing the juror in the circumstances of this case violated the Sixth and Fourteenth Amendments. That ruling contravenes controlling precedents from this Court, and it is now necessary to reverse the Court of Appeals by this summary disposition....
The two federal judges in the majority below might have reached a different conclusion had they been presiding over this voir dire. But simple disagreement does not overcome the two layers of deference owed by a federal habeas court in this context.
The Kentucky Supreme Court was not unreasonable in its application of clearly established federal law when it concluded that the exclusion of Juror 638 did not violate the Sixth Amendment. Given this conclusion, there is no need to consider petitioner’s further contention that, if there were an error by the trial court in excluding the juror, it should be subject to harmless-error analysis....
As a final matter, this Court again advises the Court of Appeals that the provisions of AEDPA apply with full force even when reviewing a conviction and sentence imposing the death penalty. See, e.g., Parker v. Matthews, 567 U.S. ___ (2012) (per curiam); Bobby v. Dixon, 565 U.S. ___ (2011) (per curiam); Bobby v. Mitts, 563 U.S. 395 (2011) (per curiam); Bobby v. Van Hook, 558 U.S. 4 (2009) (per curiam).
Kent Scheidegger at Crime & Consequences has this interesting closing thought in this post about this latest SCOTUS summary reversal:
The fact that it is necessary for the high court to so admonish the federal appellate courts is a sad commentary on the state of our judiciary. Judges who cannot or will not decide capital cases fairly should not sit on them. They should be excludable just like the jurors. If they will not recuse themselves, perhaps it is time to establish a challenge for cause. How about a rule that a federal court of appeals judge who is three times reversed by the Supreme Court for failure to obey AEDPA in a capital case will sit on no more capital cases?
Reviewing and reflecting on persistent problems with the federal clemency process
The recent Washington Post article about criminal justice reform efforts during the second term of the Obama Administration (discussed here) hinted that we could expect to see Prez Obama grant a significant number of additional prison commutations in the coming weeks. But this effective new Marshall Project piece by Bill Keller, headlined "The Bureaucracy of Mercy: Why hasn’t President Obama freed more prisoners? Maybe that’s the wrong question," reviews why federal clemency procedures and practices have been persistently disappointing for those who believe there is a need for much more than sporadic grants of executive mercy. I recommend the lengthy article in full, and here is how it starts and ends:
As the two presidents, one incoming and the other outgoing, shared a limo to the inauguration in January 2009, President Bush had some advice for President-elect Obama: “Announce a pardon policy early on, and stick to it.” Bush had been stunned by a final-days flood of appeals for clemency on behalf of friends and former colleagues convicted of federal crimes.
“I came to see a massive injustice in the system,” Bush recalled in his memoir, “Decision Points.” “If you had connections to the president, you could insert your case into the last-minute frenzy. Otherwise, you had to wait for the Justice Department to conduct a review and make a recommendation.”
As he approaches his own last-minute frenzy, President Obama has embraced criminal justice reform —especially the problem of over-incarceration — as a major cause of his administration.
“Over the course of this year, I’ve been talking to people all across the country about reforming our criminal justice system to be fairer, to be smarter, to be more effective,” he said in a speech in November.
And yet Obama’s clemency record so far — counting commutations and pardons — lags behind every recent president except George H.W. Bush, who had only a single term. On pardons, which give ex-inmates a better chance to get jobs, find housing, vote and generally live normal lives, Obama is the stingiest president since John Adams — 64 granted so far, fewer than three percent of the petitions filed....
But to many advocates of reform, the numbers miss the larger point: after navigating the multi-stage process of CP14, applicants still had to pass through the Department of Justice, where the main job is to lock people up, not let people out. Between prosecutors and defenders, says David Patton, head of the Federal Defenders of New York, there is “a difference in role and perspective.” Prosecutors, he said, are “less able to see things through the eyes of our clients, or through the eyes of anyone other than the prosecutor.”
“In some sense, by recommending that a sentence be reduced you are taking a position that is, in all likelihood, contrary to what DOJ took at the sentencing proceeding,” he said.
Top officials at the Justice Department publicly discount the idea that the department’s culture is hostile to clemency. “We’re not the Department of Prosecutions,” Deputy Attorney General Sally Yates told The Washington Post in May.
Various clemency advocates have different suggestions for change: an independent commission; restoring a federal parole board, which was abolished in the 1980’s, and having it handle commutations; or plucking the pardon attorney’s office from the Department of Justice and locating it in the White House. What they all have in common is reducing the role of the Justice Department. “I would want prosecutors to weigh in on every case,” said Rachel Barkow, a New York University law professor and member of the U.S. Sentencing commission. ”But I wouldn’t want them to be a veto point, where they could just make a case go away. And that’s what it is right now.”
Margaret Colgate Love, a clemency lawyer who spent 20 years in the Justice Department and was the department’s pardon attorney from 1990 to 1997, agreed: “It’s hopeless, you can’t reform it in the department.”
But Love argues that the focus on presidential clemency is misplaced. Intended as a remedy for individual cases of injustice, she says, executive clemency should not be a tool to reduce prison populations.
Other vehicles exist for more systemic reform, she notes. The U.S. Sentencing Commission, an independent agency of the judicial branch, has found 46,000 inmates eligible for earlier release by making new sentencing guidelines for certain drug crimes retroactive. A bill inching through Congress would do the same for some 6,500 people locked up during the national panic over crack cocaine.
Love says that when she hears speculation about moving thousands of people through the clemency process she wonders, “How could anybody who had half a brain imagine that clemency could be used to deal with even a thousand cases? It’s never been done.”
Her prescription is to empower the Bureau of Prisons to identify prisoners ready for commutation and take those cases directly to a judge. “Wardens know who ought to be out, and who not,” she said. “Why should we be putting the president in the position of vouching for a whole bunch of people who did pretty serious crimes, many of them, and have been in prison for many years?”
No one expects any of these reforms to be enacted in the year Obama has left. Which will give him something to pass on to his successor at the next inauguration.
Will Senate leader ever bring latest federal sentencing reform bill up for a full Senate vote?
The question in the title of this post is prompted by this notable inside-the-Beltway report from the New York Times headlined "Mitch McConnell Demurs on Prospects of Criminal Justice Overhaul." Here are excerpts:
Despite a concerted push from a broad right-left coalition, Senator Mitch McConnell said he had not determined whether he would bring a bipartisan criminal justice overhaul to the Senate floor next year. “I haven’t decided yet,” Mr. McConnell, the Kentucky Republican and majority leader, said in an interview on Thursday as he began looking toward 2016.
The Senate leader definitely seemed open to the idea. He said the proposal, which would reduce some mandatory minimum sentences, lead to early release for thousands of nonviolent offenders and set up new programs to help them adjust to life after prison, seemed to meet his criteria for allocating precious Senate floor time.
“It seems to have pretty broad bipartisan support,” Mr. McConnell said of the criminal justice legislation approved by the Judiciary Committee in October. “This is the kind of thing, when you look at it, you have principals on both sides who are interested in it. That makes it worthy of floor time.”
However, the legislation, while endorsed by both conservative and progressive interest groups, could present a sticky election-year vote for some Republicans who typically see themselves as law-and-order politicians. And the issue could get very complicated should Senator Ted Cruz of Texas become the Republican presidential nominee. Mr. Cruz voted against the plan in the Judiciary Committee and was outspoken in his criticism. So if the Republican-led Senate moved forward, it could conceivably be pushing legislation opposed by its candidate for the White House.
It is critical to recall that just a few years ago when Democrats still controlled the Senate, then-Senate leader Harry Reid never brought the Smarter Sentencing Act up for a full Senate vote ever after the SSA passed through the Senate Judiciary Committee with bipartisan support and even though there was good reason to believe the SSA would have garnered majority support from the full Senate. Thus, as this article spotlights, the passage of the Sentencing and Correction Reform Act through the Senate Judiciary Committee provides no certainty that even the full Senate will get a chance to vote of this reform bill.
As reported earlier, it is clear that the first few months of 2016 now constitute the next critical period for federal statutory sentencing reform. I remain cautiously optimistic that the broader political and social forces that have so far propelled bipartisan support for reform to this point will help carry some bill through both houses of Congress in some form in 2016. But I am not counting any sentencing reform chickens anytime before they completely hatch out of Congress and find their way to the desk of the President.
December 14, 2015 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)
December 13, 2015
"The Effect of Prison Sentence Length on Recidivism: Evidence from Random Judicial Assignment"
The title of this post is the title of this notable new empirical paper authored by Michael Roach and Max Schanzenbach available via SSRN. Here is the abstract:
Whether punishment promotes or deters future criminal activity by the convicted offender is a key public policy concern. Longer prison sentences further isolate offenders from the legitimate labor force and may promote the formation of criminal networks in prison. On the other hand, greater initial punishment may have a deterrence effect on the individual being punished, sometimes called “specific deterrence,” through learning or the rehabilitative effect of prison.
We test the effect of prison sentence length on recidivism by exploiting a unique quasi-experimental design from adult sentences within a courthouse in Seattle, Washington. Offenders who plead guilty are randomly assigned to a sentencing judge, which leads to random differences in prison sentence length depending on the sentencing judge’s proclivities. We find that one-month extra prison sentence reduces the rate of recidivism by about one percentage point, with possibly larger effects for those with limited criminal histories. However, the reduction in recidivism comes almost entirely in the first year of release, which we interpret as consistent with prison’s rehabilitative role.
Encouraging DUI alternative sentencing story from South Dakota
The AP this past week had this encouraging story about an alternative approach to drunk driving offenses headlined "States encouraged to mull South Dakota sobriety program." Here are excerpts:
Twice a day for three years, Chris Mexican has showed up at the county jail in Pierre to blow into a tube and prove he hasn't been drinking. After several drunken driving convictions, it has allowed him to remain free and to become a better, more clearheaded father to his kids....
South Dakota's 24-7 sobriety program has helped curb drunken driving and domestic violence, and some incentives for states that adopt the model were included in the $305 billion transportation law that President Barack Obama signed [earlier this month].
The program offers those accused or convicted of an alcohol-related crime an alternative to jail. The provision in the highway law, pushed by U.S. Sen. John Thune, creates an incentive grant totaling about $18 million over four years for states that implement the sobriety program.
It's akin to existing funds for states that have adopted seatbelt requirements or ignition interlock laws. "This will give other states a chance to find out if it works as well," said U.S. Sen. Mike Rounds, who was South Dakota governor when the program began. The new transportation law also allows states that implement a 24-7 program to avoid a penalty that routes construction funds to highway safety.
An independent study released in 2013 by the RAND Corp., a nonprofit think tank, found that South Dakota's program cut the rate of repeat DUI arrests at the county level by 12 percent and domestic violence arrests by 9 percent in its first five years. "These are large reductions when you consider that we're talking about the community level," said Beau Kilmer, who conducted the study and continues to research the program.
Experts say incentive grants are an effective way to encourage states. "When it's a federal law, the word spreads and other communities that are looking for solutions find out about it, so they're much more likely to adopt it themselves," said safety advocate Joan Claybrook, a former National Highway Traffic Safety Administration chief.
South Dakota started the practice in 2005. Participants come to a site each morning and evening to blow into an alcohol breath test. Those who live farther away or who have difficulty remaining sober wear alcohol-monitoring bracelets or have ignition interlock systems in their vehicles. Over the past decade, nearly 40,000 people have participated in South Dakota's twice-daily program, compiling a pass rate of more than 99 percent.
North Dakota and Montana have started similar monitoring systems, and more states are running or planning pilot programs. South Dakota's attorney general, Marty Jackley, has also discussed the program with his counterparts in other states. And West Virginia Attorney General Patrick Morrisey said South Dakota's "very positive" results warrant examination by his state, where a program would require legislative support.
Top Massachusetts court decides due process now demands heightened proof standard for sex offender classification
A helpful reader alerted me to a notable new procedural ruling by the Massachusetts Supreme Judicial Court this past week. In Doe, Sex Offender Registry Bd. No. 380316 v. Sex Offender Registry Board, SJC-11823 (Mass. Dec. 11, 2015) (available here), the top Massachusetts court decided that the preponderance standard of proof is inadequate for sex offender classification. Here is how the opinion starts:
We are asked in this case to consider anew the standard of proof that the Sex Offender Registry Board (SORB) must satisfy in order to classify a convicted sex offender under the provisions of the sex offender registry law, G. L. c. 6, §§ 178C-178Q. The plaintiff, John Doe No. 380316 (Doe), is a convicted sex offender who was classified by a preponderance of the evidence as having a moderate risk of reoffense. In Doe, Sex Offender Registry Bd. No. 972 v. Sex Offender Registry Bd., 428 Mass. 90, 91 (1998) (Doe No. 972), we held that SORB need only prove the appropriateness of a sex offender's risk classification by a preponderance of the evidence. In light of amendments to the sex offender registry law and other developments since our decision in that case, however, Doe contends that the preponderance standard no longer adequately protects his due process rights. We agree. For the reasons stated below, we hold that SORB is constitutionally required to prove the appropriateness of an offender's risk classification by clear and convincing evidence.