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December 26, 2015

Hoping Californians get crisp "mend it or end it" capital initiative votes in 2016

This local article, headlined "Death penalty supporters seek to speed up executions," reports on efforts in California to give voters a chance to mend the state's broken capital punishment system by initiative.  Here are the basics:

Death penalty supporters got the state’s go-ahead Thursday to collect signatures for a November 2016 ballot measure aimed at speeding up executions, raising the prospect that voters will be asked to choose between toughening California’s death penalty law and repealing it.

The new initiative would require the state Supreme Court to rule on capital cases within five years. It would also limit death penalty appeals, set strict deadlines for filing appeals and seek to expand the pool of death penalty lawyers. Any attorney who now accepts court appointments to represent impoverished defendants in criminal cases would also have to take on capital cases, regardless of experience.

Another provision would eliminate the currently required public comment period before the state can approve a new single-drug execution method, which officials have proposed to replace the current three-drug executions.  Supporters of the measure say it would reduce by at least half the period, typically 25 years or more, needed to resolve death penalty appeals in California.  Opponents disagree, noting that the initiative would not add funding for death penalty lawyers or court staff.

A rival initiative to repeal the death penalty and replace it with life imprisonment without parole was cleared for circulation last month. A similar repeal measure was defeated by four percentage points in November 2012.  Both initiatives need 365,880 signatures of registered voters in 180 days to qualify for the ballot.  Sponsors of the new initiative have raised more than $1 million so far and expect to collect the needed signatures, said Charles Bell, a lawyer for the campaign.

This article also notes that California has not carried out an execution in a decade thanks to lethal injection litigation, while still having the nation's largest death row with nearly 750 condemned murderers waiting to receive their jury-imposed death sentence. As readers may recall, the remarkable size and delay that has come to define California's dysfunctional capital system itself led to a (temporary) ruling of unconstitutionality in federal courts in recent years.

As the title of this post highlights, I am hopeful that both proposals to deal with California's capital system come before voters in 2016. If both do, voters will likely have a crisp "mend it or end it" set of policy choices, and there will also likely be considerable funding (both local and national) devoted to informing voters about what votes on these proposals would mean in an election year likely to be marked by high turnout. Through such a process, we should get some really good insights concerning what voters in a huge (left-leaning) state really want to do about the death penalty circa 2016.

Prior related post:

December 26, 2015 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (3)

December 24, 2015

Is it reasonable to ask Santa Claus to bring a certiorari grant on acquitted conduct sentencing?

Download (6)The silly question in the title of this post is prompted by the terrific Christmas-week opinions authored by DC Circuit Judges Kavanaugh and Millett in concurrences to the denial of en banc rehearing in US v. Bell, No. 08-3037 (DC Cir. Dec. 22, 2015) (available here). Regular readers know that I have long been troubled by the use of so-called acquitted conduct in the calculations of an applicable guideline range, both opinions in Bell spotlight well some of the reasons why.

Interestingly, Judge Kavanaugh suggests he thinks Congress or the Sentencing Commission may need to act in order now to address problems with acquitted conduct. But Judge Millett's opinion in Bell provides, in the space of eight pages, a thoughtful and thorough accounting of why the Supreme Court should consider anew the constitutional validity of sentences enhanced dramatically on the basis of allegations that a jury considered insufficient for a lawful conviction.  I will provide here an exceprt from the start and end of Judge Millett's opinion:

This case is one in an “unbroken string of cases” encroaching on the Sixth Amendment right to a trial by jury, Jones v. United States, 135 S. Ct. 8, 9 (2014) (Scalia, J., joined by Thomas & Ginsburg, JJ., dissenting from the denial of certiorari).  The government indicted Gregory Bell for a “mélange” of crimes, “including conspiracy and crack distribution.”  Panel Op. 2.  Bell exercised his constitutional right to a trial by jury on those charges, and the jury acquitted Bell of ten of the thirteen charges against him, “including all narcotics and racketeering conspiracy charges.”  Panel Op. 3.  The jury convicted Bell of only three crack cocaine distribution charges that together added up to just 5 grams.

Because Bell had no significant criminal history and the amount of cocaine was relatively small, Bell’s Sentencing Guidelines range for the offense of conviction would have been 51 to 63 months.  At sentencing, however, the district court found that Bell had engaged in the very cocaine conspiracy of which the jury had acquitted him, and sentenced Bell to 192 months in prison — a sentence that was over 300% above the top of the Guidelines range for the crimes of which he was actually convicted.

In a constitutional system that relies upon the jury as the “great bulwark of [our] civil and political liberties,” Apprendi v. New Jersey, 530 U.S. 466, 477 (2000) (quoting 2 J. Story, Commentaries on the Constitution of the United States 540– 541 (4th ed. 1873)), it is hard to describe Bell’s sentence as anything other than a “perverse result,” United States v. Watts, 519 U.S. 148, 164 (1997) (Stevens, J., dissenting).  The foundational role of the jury is to stand as a neutral arbiter between the defendant and a government bent on depriving him of his liberty.  But when the central justification the government offers for such an extraordinary increase in the length of imprisonment is the very conduct for which the jury acquitted the defendant, that liberty-protecting bulwark becomes little more than a speed bump at sentencing....

While I am deeply concerned about the use of acquitted conduct in this case, I concur in the denial of rehearing en banc.  That is because only the Supreme Court can resolve the contradictions in the current state of the law, by either “put[ting] an end to the unbroken string of cases disregarding the Sixth Amendment” or “eliminat[ing] the Sixth Amendment difficulty by acknowledging that all sentences below the statutory maximum are substantively reasonable.”  Jones, 135 S. Ct. at 9 (Scalia, J., joined by Thomas and Ginsburg, JJ., dissenting from denial of certiorari).  Though I am not certain Bell’s argument is directly foreclosed by Supreme Court precedent, my colleagues on the panel have done their best to navigate existing precedent, recognizing that the Supreme Court has thus far declined to address this issue.  Going en banc would only delay affording the Supreme Court another opportunity to take up this important, frequently recurring, and troubling contradiction in sentencing law.

Despite seemingly having a number of sound vehicles for reconsidering Watts in the wake of Apprendi, Blakely, Booker et al., the Supreme Court has persistently dodged this acquitted conduct issue for well over a decade. Thus, we may need some of the holiday magic of Old Saint Nick in order to finally get the Justices to give needed attention to "this important, frequently recurring, and troubling contradiction in sentencing law."

December 24, 2015 in Blakely in the Supreme Court, Booker and Fanfan Commentary, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Highlighting how Chrismas clemency cheer brings a lump of coal for those left off Prez Obama's list

This Washington Post article, headlined "Obama’s clemency list brings joy to the lucky and anguish to the disappointed," notes the sadness felt by federal prisoners and their families when certain names fail to appear on the latest list of commutations. Here are excerpts from a lengthy piece that gives special attention to the (in)famous case of Weldon Angelos:

The president wants to use his clemency power to undo past injustices, and on Friday, in the largest single-day grant of his presidency, he signed 95 commutations.  They brought joy to families across the country.

“God be the Glory,” said Sharanda Jones, a 48-year-old Texas woman who was sentenced to life in prison without parole for a cocaine offense. She was a first-time, nonviolent offender. “I am overjoyed.”

But for thousands of other prisoners, who may also meet the president’s criteria, their exclusion was a hard blow.  “It was a great day for those who won the lottery and one more disappointment for everyone in the pipeline who should be on the list,” said Amy Povah, a former inmate and the founder of the Can-Do Foundation, a clemency advocacy group.

criminal justice reform advocates of an irrationally severe system.  He was sentenced in 2004 to a mandatory 55 years in prison without the possibility of parole after he was arrested for selling marijuana in three separate transactions with a Salt Lake City police informant, while possessing a firearm.  Angelos never used or pulled out the gun, but the informant testified that he saw a gun when he made the buys, and that triggered a statute referred to as “gun stacking,” which forced the judge to give him a long sentence.

Angelos’s case has been widely championed, including by Families Against Mandatory Minimums and conservative billionaire Charles Koch.  Former U.S. District Court judge Paul G. Cassell, who was appointed by President George W. Bush, has called the sentence he imposed on Angelos “unjust, cruel and even irrational.”  Mark Holden, general counsel and senior vice president of Koch Industries, said the failure to commute Angelos’s sentence Friday was “disappointing and devastating for Weldon and his family.”

“Think of anything in your life that you’ve waited for,” Holden said.  “Everything else pales in comparison to this. ​​ It is unclear why Angelos failed to get clemency.  A Justice Department spokeswoman said that officials do not discuss individual clemency petitions. Another official noted that the department is processing them “as thoroughly and expeditiously as we can.”

Each of the four times that the president has announced his commutations has been difficult for Angelos, but this time cut the deepest.  And it’s not because it came around the holidays. It’s because this group of inmates will be released on April 16.  “If I had been given clemency this time,” Angelos, a father of three, said in an interview at the Federal Correctional Institution at Mendota, “I would have been out for my oldest son’s graduation from high school in June.”

When he came in from the track, Angelos called his sister, Lisa.  She had heard he wasn’t on the list, and she was crying.  While talking to her, he looked up and saw Obama on the prison television set making his official announcement at his end-of-year news conference.  “I felt like someone had punched me in the stomach,” he said.

Similar scenes were playing out in other federal prisons, said Angelos’s lawyer, Mark Osler, a law professor at the University of St. Thomas in Minnesota and a co-founder of New York University’s Clemency Resource Center.  He represents nine clients who are seeking clemency. “I dreaded the phone ringing,” Osler said in a blog post he called “Sunday Reflection:  The sad call”: “I looked at the screen and it said what I feared it would: ‘Unknown,’ which is how calls from prison always come up. I let it ring once, twice, three times before pressing ‘answer.’ . . . And each time I talked to them about what had happened, how I did not know how they picked the lucky ones.  They told me, in heavy voices, what they would miss: a son’s graduation, the last days of a mother in fading health.  And each time I hung up and sat in silence.”

White House Counsel W. Neil Eggleston said last week that Obama, who has granted 184 clemencies, has already commuted the sentences of more individuals than the past five presidents combined.  “We expect that the president will grant more commutations and pardons to deserving individuals in his final year in office,” Eggleston added.

But clemency advocates say that Obama has put himself in a different position than previous presidents. Instead of granting a moment of mercy to an inmate — much like the odds of being struck by lightning — Obama’s Justice Department set out eight specific clemency criteria, including having served at least 10 years, having no significant criminal history prior to conviction and demonstrating good behavior in prison.  And he raised the hopes of thousands who believed they could qualify. “What the president announced was a categorical grant to people who met those eight criteria,” Osler said. “If it’s a categorical grant, we should be seeing consistency.”

I suspect there may well be a cruel irony to the decision not to have (my former pro bono client during his 2255 efforts) Weldon Angelos on the lastest list of commutation: I think Prez Obama and his advisors might reasonably fear that granting clemency to Angelos now could undercut some urgency in Congress to continue pressing forward with statutory sentncing reform. GOP Senator Mike Lee has often mentioned the Angelos case in his advocacy for federal sentencing reform, and the stacking of mandatory minimums that resulted in Angelos' extreme sentence would be fixed in the reform bills that have been slowly moving through Congress.

I suspect Prez Obama is especially eager to see Angelos get relief from a duly enacted law, and I remain hopeful that Angelos will appear on a clemency list before this time next year if Congress in 2016 proves unable to reform the problematic provision that led to Angelos receiving a mandatory 55 years for a few minor marijuana sales. In the meantime, I hope Weldon, his family and all those advocating on his behalf might get a glimmer of comfort from the possibility that Angelos' continued incarceration may actually foster continued congressional reform efforts which would benefit thousands of fellow federal prisoners.

December 24, 2015 in Clemency and Pardons, Offense Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

"Child Pornography Sentencing in the Sixth Circuit"

The title of this post is the title of this notable new papaer by Carissa Byrne Hessick now available via SSRN. Here is the abstract:

This Symposium Essay explores and analyzes the Sixth Circuit’s approach to child pornography sentencing.  It critiques the Sixth Circuit’s decision to apply heightened scrutiny to below-Guideline sentences for child pornography possession.  In addition to presenting a critique of the Sixth Circuit’s cases, the Essay also provides guidance for defense attorneys seeking a below-Guidelines sentence.  It notes that there are particular strategies those attorneys should follow in order to secure not only a more lenient sentence from a district court judge, but also a sentence that is more likely to be upheld by the Sixth Circuit on appeal.

During the course of this discussion, the Essay identifies and criticizes three significant features of the Sixth Circuit’s cases in this area.  First, it notes that the Sixth Circuit is the only circuit to have adopted heightened appellate review of below-Guideline sentences for child pornography possession.  Second, it explains that the Sixth Circuit appears to be developing a common law of sentencing in child pornography cases; such a common law is contrary to the language and the logic of the Supreme Court’s Sixth Amendment sentencing cases.  Finally, it explains that the Sixth circuit has failed to give appropriate deference to district court decisions to sentence below the Guidelines based on facts and circumstances of particular cases.

December 24, 2015 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (0)

December 23, 2015

Making a space for the airing of sentencing grievances this Festivus

Images (12)Among the many ways I reveal (to myself) my age and geeky nature is by still getting strangely jazzed when I realize it is Festivus.  I suppose if I was a hard-core geek, I would make a serious effort to honor all the faux-holiday's grand traditions,   But, lacking the energy for anything more than this silly post, I have decided to make my lasy post today a place and a space for anyone eager engage in the Festivus tradition of airing grievances particularly focused on sentencing.  (As this news item highlights, Senator Rand Paul is using Twitter today to air Festivus grievances against his GOP Prez rivals.)

I readily could rattle off a wide range of sentencing grievances against the likes of Prez Obama and Congress for their tepid efforts on federal sentencing reform to date, or against the Supreme Court for failing to take up an array of Fifth, SIxth and Eighth Amendment sentencing issues that I think merit their attention, or against many of the Prez candidates (and their media inquisitors) for being unwilling (or perhaps unable) to engage seriously with an array of criminal justice reform topics, or even against some advocacy groups and media outlets for continuing to place so much emphasis on death penalty developments when there are so many more criminal justiuce issues that are so much more consequential for so many more people and yet receives so much less attention.  More often than not, though, I find spending too much time on grievances make me grumpy and achieves little more.  So I won't bother to vent at length here.

That said, I learn a lot (and perhaps get some misery-loves-company comfort) from hearing about others'  sentencing grievances.  Consequently, with this as my last post on a warm Festivus day in Ohio, I welcome and encourage any and all readers eager to air their sentencing grievances to go for it in the comment here.

December 23, 2015 in Who Sentences? | Permalink | Comments (4)

"IQ, Intelligence Tests, 'Ethnic Adjustments' and Atkins"

The title of this post is the title of this article by Robert Sanger recently posted on SSRN. Here is the abstract:

In Atkins v. Virginia the U.S. Supreme Court declared that executing the intellectually disabled violated the U.S. Constitution’s Eighth Amendment prohibition against cruel and unusual punishment.  In Atkins, the Court relied heavily on medical standards, which indicated that individuals with an IQ of approximately or below seventy and who met the other criteria for intellectual disability were ineligible for the death penalty.  Twelve years later, in Hall v. Florida, the Court evaluated a Florida statute that created a bright line rule, making anyone whose IQ was above seventy eligible for execution, regardless of other factors suggesting the defendant was, despite his IQ score, intellectually disabled.  Finding the statute violated the Constitution, the Court stated that the Florida statute’s bright line rule made the possibility too great that an intellectually disabled person would be executed.

Since Atkins, some prosecution experts have begun using so-called “ethnic adjustments” to artificially raise minority defendants’ IQ scores, making defendants who would have been protected by Atkins and its progeny eligible for the death penalty.  This Article details this practice, looking at several cases in which prosecutors successfully adjusted a defendant’s IQ score upward, based on his or her race.  The Article then turns to the arguments put forth by these prosecutors for increasing minority defendants’ IQ scores, namely that it would be improper not to adjust the scores.

Statistically, some minority cohorts tend to perform worse on tests than White cohorts; prosecutors argue that this discrepancy is not based on intellectual inferiority, but rather that there are testing biases and behavioral factors that cause minority test-takers to underperform.  Thus, the argument goes, minority IQ scores should be increased to control for these biases and behavioral factors.

Evaluating the merits of these arguments, this Article concludes that ethnic adjustments are not logically or clinically appropriate when computing a person’s IQ score for Atkins purposes.  This Article looks at epigenetics to explain the discrepancies in IQ scores, concluding that environmental factors — such as childhood abuse, poverty, stress, and trauma — can cause decreases in actual IQ scores and which can be passed down from generation to generation.  Therefore, given that individuals who suffered these environmental factors disproportionately populate death row, ethnic adjustments make it more likely that individuals who are actually intellectually disabled will be put to death.  Ultimately, after looking at the Supreme Court’s affirmative action jurisprudence, this Article concludes that the practice of ethnic adjustments for the purpose of determining eligibility for the death penalty violates the Fourteenth Amendment’s Equal Protection Clause and would not survive strict scrutiny.

December 23, 2015 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Based on SCOTUS Johnson ruling, Seventh Circuit declares statutory sentence enhancement for illegal reentry offenses

A helpful reader made sure I did not miss a notable post-Johnson vagueness ruling by a Seventh Circuit panel in US v. Vivas-Ceja, No. 15-1770 (7th Cir. Dec. 22, 2015) (available here). Here is how the panel opinion gets started:

Raul Vivas-Ceja pleaded guilty to illegally reentering the United States after removal, the maximum sentence for which is raised to 20 years if the defendant has been convicted of an “aggravated felony” prior to removal.  See 8 U.S.C. § 1326(b)(2).  As relevant here, the definition of “aggravated felony” is supplied by the definition of “crime of violence” in 18 U.S.C. § 16(b), which includes “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

The district court concluded that Vivas-Ceja’s Wisconsin conviction for fleeing an officer was a crime of violence under § 16(b), raising the maximum sentence to 20 years.  The court imposed a sentence of 21 months.  Vivas-Ceja appeals, arguing that § 16(b)’s definition of “crime of violence” is unconstitutionally vague in light of Johnson v. United States, 135 S. Ct. 2551 (2015).

The Fifth Amendment’s Due Process Clause prohibits the government from depriving a person of liberty under a statute “so vague that it fails to give ordinary people fair notice … or so standardless that it invites arbitrary enforcement.”  Id. at 2556.  In Johnson the Supreme Court held that sentencing a defendant under the so-called “residual clause” of the Armed Career Criminal Act (“ACCA”), 18 U.S.C. § 924(e)(2)(B)(ii), violates this prohibition.  Section 16(b) is materially indistinguishable from the ACCA’s residual clause.  We hold that it too is unconstitutionally vague according to the reasoning of Johnson.  We therefore vacate Vivas-Ceja’s sentence and remand for resentencing.

December 23, 2015 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

"Reforming the Nation’s Criminal Justice System: The Impact of 2015 and Prospects for 2016"

The title of this post is the title of this notable report recently produced by the U.S. Justice Action Network. Here are excerpts on how it starts and ends:

Over the past year, criminal justice reform has been propelled to the forefront of national conversation, and on the minds of millions of Americans.  For years, advocates have worked tirelessly to chart a path forward to overhaul a justice system that has become bloated, unsustainable and inefficient.  But they knew that, to advance meaningful solutions to reduce the prison population and expand opportunities for formerly incarcerated people, that national momentum and widespread support would be needed to spur action.

Fortunately for advocates of criminal justice reform, 2015 proved to be the year that would ultimately place reform within the nation’s reach.  And because of the progress made this year, prospects for achievable, comprehensive reform in 2016 are appearing considerable....

The collective efforts witnessed throughout 2015, at the state and federal levels, certainly made it the most significant in the fight for reform.  For the first time, the nation at large took an active, invested role in the conversation — no longer was justice reform a topic relegated to policy conferences, legislative hearing rooms and opinion pages — it was a debate being waged in living rooms, at dinner tables, in schools and churches, and by people of every political stripe, in every age range, in every community across the country.  Below is a look ahead to some of next year’s key moments, issues and actions that could impact prospects for reform in 2016, and which will ultimately determine whether or not 2016 will be the year that reforms were achieved.

Narrowing window of opportunity means the first few months are key: With the 2016 election cycle kicking into high gear, it will be crucial for federal lawmakers and national advocates for reform to make progress on reforms as early as possible in the new year.  Momentum and support for reform has reached historically high levels, helping to create a political and legislative environment ripe for reform.

Law enforcement: Prominent law enforcement leaders are standing up and joining the push for action, and this widespread law enforcement advocacy effort will be crucial in the coming year to continue advancing criminal justice reforms that protect public safety and create better outcomes for all.

Congressional leadership: Senate Majority Leader Mitch McConnell (R-KY) and House Speaker Paul Ryan (R-WI) have both signaled that reforming the justice system is an important priority.  In November, both McConnell and Ryan made optimistic statements signaling the bills could be included on a short list of priorities for congressional action, but stopped short of committing to floor time.

2016 election cycle: The 2016 presidential election cycle has for the first time made criminal justice reform a hot-button issue being discussed on the campaign trail by presidential candidates.  Candidates on both sides of the aisle have shared proposed policies to reform the system, and have shared differing perspectives on the state of justice reform.  As the campaigns continue marching forward, it is anticipated that criminal justice reform will continue making appearances in stump speeches, rallies, and interviews by those running for the White House.

45th anniversary of War on Drugs: The War on Drugs is sourced with both increasing attention on the scourge of drugs and substance abuse issues, but also amplifying the use of mandatory minimums and other one-size-fits-all criminal justice policies for lower-level drug issues.  In June, the U.S. will mark the 45th anniversary of the War on Drugs, and will surely see calls for federal lawmakers to continue to reconsider current U.S. drug policies and their impact on incarceration rates, and also more effective ways of addressing substance abuse issues that impact communities everywhere.

December 23, 2015 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (0)

December 22, 2015

Could a profit motive help improve recidivism rates (and criminal justice programming more generally)?

The question in the title of this post is prompted by this intriguing new article by Alana Semuels in The Atlantic headlined "A New Investment Opportunity: Helping Ex-Convicts; A New York program asks outsiders to fund a promising initiative to reduce recidivism. If it gets results, they get a payout." Here is how the article gets started:

Every year, the government spends billions of dollars on programs designed to help America’s neediest citizens.  In many cases, whether these programs work is anyone’s guess.

Less than $1 out of every $100 of federal government spending is “backed by even the most basic evidence that the money is being spent wisely,” wrote Peter Orszag, the former head of the Office of Management and Budget, and John Bridgeland, the former director of the White House Domestic Policy Council, in a 2013 piece in The Atlantic. In their article, Orszag and Bridgeland advocate for a “moneyball for government,” arguing that an era of fiscal scarcity should force Washington to become more results-oriented.

A new partnership among New York State, 40 private investors, and a nonprofit called the Center for Employment Opportunities seeks to apply this sort of thinking to an area of policy that has been particularly resistant to interventions: lowering the recidivism rate in an era of growing prison populations.

The investors, including private philanthropists and former Treasury Secretary Larry Summers, have put up a total of $13.5 million to fund an expansion of the work that an organization called the Center for Employment Opportunities (CEO) already does with people coming out of prison.  CEO’s model is simple: It prepares people who have criminal records for the workplace, gives them up to 75 days of temporary employment, and then helps them find jobs of their own.  With the $13.5 million, CEO will work with an additional 2,000 clients, targeting the highest-risk people.

But the expansion of the program isn’t charity: The project is a so-called “Pay for Success” initiative, modeled after social-impact bonds, which were first used in the United Kingdom five years ago.  The basic idea is that investors fund a program that has a promising approach, putting in place extensive data-collection points so that they can track the program’s results.  The investors are betting on the idea that the program can do a better — and less expensive — job of providing a given service than the status quo.  If they’re right, and the program meets certain expectations — in this case the benchmarks for success are to reduce recidivism by eight percent and increase employment by five percent — the government will have saved money in less prison spending.  The government then pays back the investors with its savings.  If the program succeeds, investors can earn a return.  If it exceeds those goals substantially, investors can get a bigger return, which in this case is capped at 10 percent.  The state at no point spends more money than it would have spent incarcerating the 2,000 individuals anyway.

The Pay for Success strategy isn’t just a way to test CEO’s model.  It’s a way to bring careful, data-based monitoring of a program’s effect into government spending.

There are dozens of programs that seek to help people re-enter the community once they’re released from prison.  They provide job training and housing assistance and college-preparation classes and counseling.  But a lot of people still end up back in prison.  About 700,000 individuals are released from prison nationally each year; the national recidivism rate is about 40 percent.

CEO can make a dent in this, its backers say, because it gives its clients something more: a job.  Clients come in, go through a week of job-readiness training, and then get a pair of steel-toed boots and a spot on one of CEO’s five-to-seven-person crews.  The crews rotate through the city, cleaning courtrooms and performing maintenance on community-college buildings and public-housing properties.

Getting clients back into the workforce, even temporarily, is a key part of CEO’s program, Sam Schaeffer, the executive director of CEO, told me.  People who have never worked, or who haven’t worked in decades find themselves furnished with a metro card, a place to be every morning, and a supervisor to report to.  “You’re earning a daily paycheck, and all of a sudden you’re getting on the subway, with that metro card that you couldn’t afford two weeks ago and you're reading the paper, and you’re sort of like, ‘Yea, I can do this,’” he said.

December 22, 2015 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

"To forgive prisoners is divine — or as close as government gets"

The title of this post is the sub-headline of this notable new commentary published by the American Conservative and authored by Chase Madar under the main headline "The Case for Clemency."  I recommend the lengthy piece in full, and here are excerpts:

President Obama’s recent announcement that he would commute the sentences of 95 federal prisoners and fully pardon two others is welcome news.  So is a holiday press release from New York Governor Andrew Cuomo, who has hitherto been miserly with clemency, but will pardon nonviolent offenses committed by 16 and 17 year olds (who will continue to be automatically tried as adults, a harshness almost unique among the fifty states).  But we should see these gestures for what they are: small trickles of clemency where what is demanded is a rushing, roaring pipeline scaled to the globally unprecedented size of our prison population and incarceration rate. We need industrial-scale clemency.  Here is why and how....

At the federal level — which only accounts for about 12 percent of U.S. prisoners — mild sentencing reform has both bipartisan support and bipartisan resistance in the Senate.  Looking to the states, a much hyped “moment” of criminal-justice reform is more than countervailed by the deeply ingrained punitive habits of governors and legislatures across the land, from Massachusetts, whose liberal governor signed a tough “three strikes” law in 2012, to Louisiana, where Bobby Jindal upped penalties for heroin-related offenses.

Whether we admit it or not, we are in quite a spot: our hyper-incarceration is unprecedented in U.S. history.  Rectifying this will require changes in policing, a cutting back of what we criminalize, and serious revision of our sentences, which far outstrip their deterrent value.  Another part of the solution will have to be clemency on a massive scale: pardons, which all but expunge a criminal record; commutations, which shorten a prison sentence; parole; geriatric and compassionate release; and retroactive sentencing reform.

As of this writing, Obama has issued more commutations than any other president since Lyndon Johnson.  But the supply of imprisoned Americans is orders of magnitude greater than it was in Johnson’s day, and Obama has only granted pardons or commutations at the exceedingly stingy rate of one out of 136, in line with the steep plummet in clemency since World War II. The Department of Justice has promised to routinize clemency, issuing new guidelines for nonviolent offenders who have served 10 years already, but the results so far have been bonsai-scaled in comparison to the magnitude of the federal prison population....

So much for Washington, which despite much misty-eyed self-congratulation has not shown itself up to the task of scaling back our prison state.  Washington’s timidity means less than it first appears however: despite lazy media focus on the federal justice system, the real action is at the state level, which handles most policing, sentencing, and imprisoning.  Alas, here too the general trend has been towards greater stinginess with clemency. 

Take the example of Minnesota, a state that has, by U.S. standards, a low incarceration rate and arguably the most humane penal system in the country, with perhaps more in common with Denmark and Germany than with Texas and Louisiana.  Yet it says something that Mark Dayton, one of the most progressive governors in the country, has a more merciless default setting than virtually all of his executive predecessors from the mid-20th century.  Minnesota used to grant pardons and commutations by the barrelful: from 1940-89, the state granted 741 commutations and nearly 90 percent of all pardon applications.  Minnesota’s clemency process began to tighten in the 1970s, only to be choked off further in the 1980s. From 2000-10, the number of pardons plummeted. In the past quarter-century, Minnesota has not issued a single commutation.

The barriers to mercy are dug deeply into American politics and intellectual culture.  At the same time there is a rich tradition of clemency in this country, which can and should be tapped into.... Devotion to the Rule of Law has an ugly side in resentment of executive acts of mercy, at the level of practice and high theory.... Overall, the thrust of American legalism militates against executive clemency, which seems to many a kind of short circuit, a deus ex machina, an insult to the rule of law, smelling of elitism and monarchical whims....  (And it has to be said, occasionally this image of executive mercy as sleazy end-run around the justice system is correct: think of Bill Clinton granting a full pardon to felonious oil trader Marc Rich, whose ex-wife had been a major Democratic fundraiser.)

But in the face of this hostility to the pardon power there is a great counter-tradition of American clemency.  At the founding of the country, executive power was seen not as a violation of our self-image as a “nation of laws not men” but as a necessary and healthily legitimate part of any popular government. As Hamilton wrote in Federalist 74: “the benign prerogative of pardoning should be as little as possible fettered.”  Without pardon power, “justice would wear a countenance too sanguinary and cruel.”...

U.S. history turns out to be generously littered with acts of mass clemency.  In the 1930s, Mississippi Governor Mike Conner went to Parchman Farm, the state penitentiary, and held impromptu “mercy courts” that freed dozens of African-American prisoners, in an act that entered national folklore — as did Texas Governor Pat Neff’s pardon in 1925 of Huddie “Lead Belly” Ledbetter, who issued his clemency request in song.  In the 20th century, Governors Lee Cruce of Oklahoma, Winthrop Rockefeller of Arkansas, and Toney Anaya of New Mexico all commuted their states’ death rows down to zero upon leaving office.  Among presidents, according to political scientist P.S. Ruckman Jr’s excellent blog Pardon Power, Abraham Lincoln granted clemency every single month of his administration as an act of mercy and a canny political strategy.  Woodrow Wilson, though a teetotaler himself, pardoned hundreds convicted of booze-related infractions to signal his disapproval of Prohibition....

Reversing course on hyper-incarceration and clemency will be a generational project, and an Augean one at that. Judges and prosecutors are not the most self-effacing career group, and many would sooner eat their Civil Procedure books than admit error.... But for most people, clemency in cases of judicial and prosecutorial error is a no brainer: the law’s finality should not come at the expense of justice.   The type of clemency we need today, however, is to remedy a problem several orders of magnitude larger, admitting not legal or judicial error but political or legislative disaster.  A rushing, roaring clemency pipeline would be an explicit recognition that the various state and federal tough-on-crime policies, virtually all of which passed with broad bipartisan support, were dead wrong....

Our incarcerated population is also aging rapidly, and though older prisoners have far lower recidivism rates, few states are availing themselves of geriatric release. For instance, Virginia in 2012 granted geriatric release to less than 1 percent of about 800 prisoners eligible, according to the state parole board. Meanwhile, as the Virginian Pilot reported, “during the same period, 84 inmates died in state prisons.” Running high-security nursing homes is neither compassionate nor fiscally sound—another reason to restore and expand clemency.

What is needed is a restoration of the kind of clemency that was once the everyday norm in this country, expanded to meet the needs of our enormous 21st-century prison population.  There will surely be stentorian howling that industrial-scale clemency is the invasive hand of overweening government power.  These fault-finders ought to be reminded that our incarceration regime is on a scale rarely seen in human history: our only competitors are third-century BC “legalist” China; the late, off-the-rails Roman Empire; and the Soviet Union from 1930-55.  Routinized clemency on a grand scale will be necessary to tame this beast.

To say that mass incarceration is an issue best addressed by the legislature, not by the executive, is theoretically correct.  But procedural rectitude should not be taken to the point of sadism, ignoring the tens of thousands of harshly sentenced prisoners who are already stuck halfway through the penal snake’s digestive tract.  Besides, this would hardly be the first time that elected officials have used the pardon power as a tool to alter policy.  To give one more glorious example, on Christmas Day in 1912, Governor George Donaghey of Arkansas pardoned 360 state prisoners as a condemnation of the state’s brutal and corrupt “convict leasing” system, making national headlines and dealing a death blow to the corrupt practice.

The time is as ripe as it will ever be for industrial-scale clemency . Even with an 11 percent average increase in homicides in big American cities for 2015 so far (bringing the nation back to 2012 murder levels), violent crime is as low as it’s been since the early 1960s....  How we proceed with clemency is not just about how we treat thousands of prisoners..., it is about how we treat ourselves. According to Shakespeare’s most famous courtroom speech, mercy “blesseth him that gives and him that takes: ‘Tis mightiest in the mightiest: it becomes the throned monarch better than his crown.” With an expansion of the pardon power, we have the opportunity to rule ourselves as monarchs, with all the magnanimity and grace that implies. Or we can remain a nation of vindictive jailers that lectures the rest of the world about freedom.

December 22, 2015 in Clemency and Pardons, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

December 21, 2015

Pennsylvania Supreme Court upholds Gov Wolf's execution moratorium

As reported in this local press article, Pennsylvania's "Gov. Wolf acted within his constitutional authority to temporarily halt the execution of a convicted murderer from Philadelphia, the state Supreme Court ruled on Monday."  Here is more from the article about this notable ruling from the top court in the Keystone State:

In a unanimous decision, the high court said Wolf had the power to delay the death sentence for Terrance Williams until a legislative task force issued its final report on the future of capital punishment in Pennsylvania.  The ruling doesn't apply to Wolf's broader moratorium on the death penalty, but represented a victory for the governor in the broader and contentious battle over the future of executions in the commonwealth.

Wolf announced the reprieve for Williams in February, saying he would shelve all executions until after the report was issued.  That decision that was challenged by Philadelphia District Attorney Seth Williams and prosecutors from other counties, who argued, among other things, that the governor's position unlawfully meddled with the jury's decision in the case.

But in a 33-page decision written by Justice Max Baer, the court said, "we disagree with the Commonwealth's suggestion that the reprieve unconstitutionally altered a final judgment of this Court; rather, the execution of the judgment is merely delayed."

The court was careful to say it was not considering whether Wolf's overall moratorium was legal; instead, it said, it was weighing specifically whether the governor could delay the execution of Williams, a former quarterback at Germantown High School who was convicted for the 1984 killing of Amos Norwood, a 56-year-old church volunteer. "Future challenges to reprieves granted by Governor Wolf will have to await independent examination based upon our holdings herein," the court wrote....

Wolf issued a brief statement saying he was pleased by the court's ruling. When he announced the decision earlier this year, he called the death penalty "ineffective, unjust, and expensive."  A report from the task force studying if the death penalty can be legally and effectively administered in Pennsylvania was initially due two years ago. But its deadline has been extended.

Shawn Nolan, Terrance Williams' attorney, said Monday that he had not yet shared the news with his client but was pleased with the decision. "We have been saying all along that it was constitutional what the governor did," he said. "We're gratified that the Supreme Court made a unanimous decision."

Williams' case is also scheduled to go before the U.S. Supreme Court in February. In that appeal, Nolan is arguing that former Pennsylvania Supreme Court Justice Ronald D. Castille should have recused himself from hearing appeal in the case because he was Philadelphia's district attorney when Williams was sentenced to death.

Cameron Kline, spokesman for the Philadelphia District Attorney's Office, said that prosecutors respected the decision even though they had argued for another outcome.

The ruling of the Pennsylvania Supreme Court today in Pennsylvania v. Williams is comprised by  this majority opinion and this concurring opinion.

Prior related posts:

December 21, 2015 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

NY Gov Cuomo moves ahead with significant clemency effort for youthful offenders and others

635603709893412683-cuomoAs reported in this official press release, titled "Governor Cuomo Offers Executive Pardons to New Yorkers Convicted of Crimes at Ages 16 and 17," the top elected official in New York today announced a major new clemency initiative.  Here are just some of the details from the press release:

Governor Cuomo announced that he will use his pardon power to alleviate the barrier of a criminal conviction for people convicted of non-violent crimes committed when they were minors, and who have since lived crime-free for 10 or more years. This action, the first of its kind in the nation, advances the principles from his Raise the Age Campaign, which calls upon New York to join 48 other states in recognizing that 16 and 17 year old children do not belong in the adult court system.

The Governor’s action acknowledges that people can and do move beyond the mistakes of their youth, However, their adult criminal records can make it hard for them to find work, get admitted to college, find a place to live, and become licensed in certain occupations. The Governor chooses today to use his Constitutional pardon power to remove the bars created by state law that are associated with these convictions, and allow deserving individuals to move forward with their lives....

By pardoning New Yorkers who have reached this milestone crime-free, the Governor is helping people who present little danger to the public. Moreover, the pardon will be conditional, meaning that if a person defies the odds and is reconvicted, it will be withdrawn.

The Governor’s action will affect a significant number of lives. Of 16 and 17 year olds who committed misdemeanors and non-violent felonies since such records have been tracked by the state, approximately 10,000 have not been reconvicted after at least 10 years. Annually, approximately 350 people convicted as 16 and 17 year olds of misdemeanors and non-violent felonies remain conviction-free after 10 years. In addition to lifting the burden on these individuals themselves, their families will also feel the positive impact of this action. Now a son or daughter, husband or wife, father or mother will be better equipped to help their loved ones as they find it easier to attain employment, go to school, find housing, and work in licensed professions....

Agency staff will make a recommendation to the Governor to grant a pardon if:

The person was 16 or 17 at the time they committed the crime for which they were convicted.

At least 10 years have passed since the person was either convicted of the crime, or released from a period of incarceration for that crime, if applicable.

The person has been conviction-free since that time.

The person was convicted of a misdemeanor or a non-violent felony.

The person was not originally convicted of a sex offense.

The person is currently a New York State resident.

The person has paid taxes on any income.

The person is a productive member of his or her community, meaning that the individual is working, looking for work, in school or legitimately unable to work.

In addition to this general invitation to apply, the Administration will do targeted outreach to candidates for the pardon, starting with the most recent cohort of potentially eligible individuals, those convicted in the year 2004. Administrative staff will review the cohort and will attempt to contact those convicted of qualifying crimes committed while they were 16 or 17 and who have stayed conviction-free. They will be informed of their initial eligibility for a pardon and invited to apply, using the website. Once the 2004 cohort has been contacted, the process will be repeated for individuals convicted in 2003, and further back until outreach has been made to all potential candidates.

The Governor’s action reinforces his commitment to alleviating barriers for people with criminal convictions, exemplified by his creation of the Council of Community Reintegration and Reintegration in 2014, and his acceptance and implementation of 12 recommendations for executive action from that Council in September of this year. These executive actions included adopting new anti-discrimination guidance for New York-financed housing, and adopting “fair chance hiring” for New York State agencies....

With assistance from the National Association of Criminal Defense Lawyers, representatives from the Governor’s Office have developed a comprehensive training program and will begin working with these associations to train volunteer attorneys via webinar in early 2016. Although individuals may apply for clemency without the assistance of an attorney, assistance from a pro bono attorney will enhance the quality of an inmate’s application and present his or her best case to the Governor. The New York County Lawyers Association, New York State Bar Association, New York City Bar Association, the Legal Aid Society, and the New York State Association of Criminal Defense Lawyers will prepare petitions for sentence commutations and the Bronx Defenders will provide post-petition legal services with respect to benefits, housing, and employment, for successful petitioners. The trainings, delivered via webinar with accompanying materials, will walk volunteer attorneys associated with the collaborating legal organizations through each step of being assigned a case, communicating with their client, and preparing a strong petition.

Today Governor Cuomo also granted clemency relief to two individuals who have demonstrated rehabilitation and made positive strides in their lives since their criminal convictions. These individuals were granted clemency relief in the interests of justice and rehabilitation. The clemencies granted today are in addition to the four the Governor granted several weeks ago.

December 21, 2015 in Clemency and Pardons, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Astute review of factors killing the death penalty ... with a questionable final assessment

20151219_USD001_0The Economist has this lengthy new piece (as well as this intriguing graphic) about the modern administration of capital punishment in the United States headlined "Who killed the death penalty?: Many suspects are implicated in capital punishment’s ongoing demise. But one stands out."  I recommend the full piece; but, as explained below, I am put off a bit by its concluding statement.  First, here are extended excerpts along with the closing paragraph:

Exhibit A is the corpses. Or rather, the curious paucity of them: like the dog that didn’t bark in Sherlock Holmes, the bodies are increasingly failing to materialise. Only 28 prisoners have been executed in America in 2015, the lowest number since 1991. Next, consider the dwindling rate of death sentences — most striking in Texas, which accounts for more than a third of all executions since (after a hiatus) the Supreme Court reinstated the practice in 1976.  A ghoulish web page lists the inmates admitted to Texas’s death row.  Only two arrived in 2015, down from 11 the previous year.

There is circumstantial evidence, too: the political kind. Jeb Bush, a Republican presidential candidate — who, as governor of Florida, oversaw 21 executions — has acknowledged feeling “conflicted” about capital punishment.  Hillary Clinton, the Democratic frontrunner, said she “would breathe a sigh of relief” if it were scrapped.  Contrast that stance with her husband’s return to Arkansas, during his own campaign in 1992, for the controversial execution of a mentally impaired murderer.  Bernie Sanders, Mrs Clinton’s main rival, is a confirmed abolitionist.

The proof is overwhelming: capital punishment is dying. Statistically and politically, it is already mortally wounded, even as it staggers through an indeterminate — but probably brief — swansong.  Fairly soon, someone will be the last person to be executed in America.  The reasons for this decline themselves form a suspenseful tale of locked-room intrigue, unexpected twists and unusual suspects.  So, whodunnit?  Who killed the death penalty?

Where politicians follow, voters often lead.  Capital punishment is no longer a litmus test of political machismo because public enthusiasm for it is waning.  Most Americans still favour retaining it, but that majority is narrowing. And one critical constituency — the mystery’s first prime suspect — is especially sceptical: juries....

The widely available alternative of life without parole — which offers the certainty that a defendant can never be released — helps to explain that trend [of fewer jury-imposed death sentences].  So does the growing willingness of jurors, in their private deliberations, to weigh murderers’ backgrounds and mental illnesses; ditto the greater skill with which defence lawyers, generally better resourced and trained than in the past, muster that mitigating evidence. But the biggest reason, says Richard Dieter of the DPIC, is juries’ nervousness about imposing an irrevocable punishment.  Behind that anxiety stands another, unwilling participant in the death-penalty story: the swelling, well-publicised cadre of death-row exonerees....

Those mistakes implicate another suspect in the death penalty’s demise: prosecutors. The renegades who have botched capital cases — by suppressing evidence, rigging juries or concentrating on black defendants — have dragged it into disrepute.  But some responsible prosecutors have also contributed, by declining to seek death in the first place. They have been abetted by another unlikely group: victims’ relatives....

To avoid that protracted agony [of repeated capital appeals], says James Farren, district attorney of Randall County in Texas, “a healthy percentage” of families now ask prosecutors to eschew capital punishment. Mr Farren also fingers another key player in the death-penalty drama: the American taxpayer.  Capital cases are “a huge drain on resources”, spiralling costs that — especially given juries’ growing reluctance to pass a death sentence anyway — have helped to change the calculus about when to pursue one, Mr Farren says....

Even when the appeals are exhausted, enacting a death sentence has become almost insuperably difficult — because of an outlandish cameo by the pharmaceutical industry.  Obtaining small quantities of drugs for lethal injection, long the standard method, might seem an easy task in the world’s richest country; but export bans in Europe, American import rules and the decision by domestic firms to discontinue what were less-than-lucrative sales lines has strangled the supply....

Lethal injection was intended to be reassuringly bloodless, almost medicinal (as, once, was electrocution).  Should it become impractical, it is unclear whether Americans will stomach a reversion to gorier methods such as gassing and shooting: they are much less popular, according to polls.  The death penalty’s coup de grace may come in the form of an empty vial.

Or it may be judicial rather than pharmaceutical: performed in the Supreme Court, the most obvious suspect of all.  In an opinion issued in June, one of the left-leaning justices, Stephen Breyer, voiced his hunch that the death penalty’s time was up. He cited many longstanding failings: arbitrariness (its use varying widely by geography and defendants’ profiles); the delays; the questionable deterrent and retributive value; all those exonerations (Mr Breyer speculated that wrongful convictions were especially likely in capital cases, because of the pressure to solve them).  He concluded that the system could be fair or purposeful, but not both. Meanwhile Antonin Scalia, a conservative justice, recently said he would not be surprised to see the court strike capital punishment down.

Cue much lawyerly soothsaying about that prospect.  Yet the legal denouement is already in train: a joint enterprise between state courts, legislatures and governors.  Of the 19 states to have repealed the death penalty, seven have done so in the past nine years. Others have imposed moratoriums, formal or de facto, including, in 2015, Arkansas, Ohio, Oklahoma, Montana and Pennsylvania.  The number that execute people — six in 2015 — is small, and shrinking. (After their legislature repealed the death penalty in May, Nebraskans will vote in 2016 on reinstating it; but their state hasn’t executed anyone since 1997.)  These machinations may help to provoke a mortal blow from the Supreme Court. After all, the fewer states that apply the punishment, the more “unusual”, and therefore unconstitutional, it becomes.

Juries; exonerees; prosecutors, both incompetent and pragmatic; improving defence lawyers; stingy taxpayers; exhausted victims; media-savvy drugmakers: in the strange case of the death penalty, there is a superabundance of suspects. And, rather as in “Murder on the Orient Express”, in a way, they all did it. But in a deeper sense, all these are merely accomplices. In truth capital punishment is expiring because of its own contradictions.  As decades of litigation attest — and as the rest of the Western world has resolved — killing prisoners is fundamentally inconsistent with the precepts of a law-governed, civilised society.  In the final verdict, America’s death penalty has killed itself.

This article does an effective job summarizing how and why the death penalty in the US continues to be subject to attacks that could lead to its eventual demise.  But, even using just 2015 evidence, one could still build an argument that capital punishment has steady heartbeat in the United States.  Prez Obama's Justice Department sought and secured a federal death sentence against the Boston bomber in deep blue Massachusetts, while Gov Brown's Attorney General appealed and got reversed a judicial ruling threatening the largest state capital punishment system in deep blue California.  Meanwhile, officials in swing state Pennsylvania and activists in heartland Nebraska still (reasonably) think advocating for the death penalty makes for good politics.

Ultimately, I see 2016 as a make-or-break year for the future of the death penalty in the US.  If voters in Nebraska (and perhaps also California) vote for the death penalty's repeal, or if US voters elect a new Prez likely to appoint abolitionsit-minded judges and Justices, I will jump on the "death penalty is dying" bandwagon.  But, because actual voters rather than just elites still shape the direction of significant legal reforms in our democracy, I do not expect the death penalty to be truly dying until a significant majority of Americans share the legal elite's belief that "killing prisoners is fundamentally inconsistent with the precepts of a law-governed, civilised society."

It is these words at the end of this article that put me off because I continue to struggle with the notion that giving tens of thousands of lesser offenders life-without-parole prison sentences is somehow more "civilized" than giving a few of the very worst murderers a death sentence.  Though I respect and understand why abolitionists feel strongly that the death penalty is inconsistent with many American values they cherish, I find it problematic and troubling that so many abolitionists seem to have little respect and understanding for those who believe the death penalty vindicates legitimate values.  And, I think that the reduced use of the death penalty well-chronicled in this Economist article suggest reasons why, over time, it could become easier for supporters of the death penalty to show to voters that capital punishment will in the future only be used in the very worst cases involving no doubt about the guilt and the horrors of the murders committed.

December 21, 2015 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (13)

Federal judge enjoins Tennessee county's privatized probation system operating like debtors' prison

As reported in this local article, "Judge's order frees 13 held for not paying probation fees," a group of probationers got a holiday gift in the form of a significant federal judicial order preventing a locality for jailing low-level offenders for failing to pay fines or court costs. Here are the basics:

Heather Keller is looking forward to spending Christmas with her children after a federal judge's order set her free from the Rutherford County Detention Center Friday afternoon. A day earlier, a federal judge in Nashville granted an injunction that prevented officials and probation supervisors in Rutherford County from holding people in jail for certain violations or only because they could not pay fees. It also said that anyone being held for those reasons should be let go.

Keller, 35, was one of 13 inmates released from the jail in Murfreesboro who were held there because they could not pay fees to the private company contracted to oversee the Rutherford County misdemeanor probation system. The injunction that won Keller’s release was part of a lawsuit filed against Providence Community Corrections, which has changed its name to Pathways Community Corrections.

The suit was filed in October and accuses Rutherford County and PCC of working together to extort people on probation there by charging excessive fees. Many of the seven people named in the lawsuit rely on government assistance and have said in court testimony or documents that PCC's excessive fees leave them struggling to pay bills and facing extended probation terms because they cannot pay court costs.

It is a practice Alec Karakatsanis, attorney for the plaintiffs, likens to the operation of a debtors' prison. Karakatsanis said Sharp's order is only the beginning of possible probation reform in Rutherford County.

“We will fight to end permanently what we believe to be the rise of a modern debtors' prison system in which the poor and destitute are jailed and threatened with jail solely because of their inability to make monetary payments to a private company and their local government,” Karakatsanis said. “This is a very important ruling for impoverished people in Tennessee.”

The injunction was granted by Chief District Judge Kevin Sharp in Nashville. In addition to freeing these prisoners, Sharp also ordered PCC immediately stop the practice of violating probationers solely for non-payment of fees.

Keller was originally arrested for driving on a suspended license and since has been jailed twice for non-payment of probation fees, she said. “I’ve spent more time in jail for non-payment than the original charge,” Keller said.

And Sharp ordered Rutherford County Sheriff Robert Arnold to free any inmates held on violation of probation charges stemming solely from non-payment of fees and fines.

The federal district judge's 20-page injunction order in Rodriguez v. Providence Community Corrections is available for download here:  Download Opinion Granting Injunction

December 21, 2015 in Fines, Restitution and Other Economic Sanctions, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

December 20, 2015

Michigan Supreme Court takes up punishing questions about lifetime sex offender registration

As reported in this local article, the "Michigan Supreme Court has agreed to look at the case of a man who’s on the sex offender list for life, although his conviction was erased nearly 20 years ago."  Here is more about the case and context:

The man was 19 when he was charged with kissing and groping a 12-year-old girl in Wayne County. He pleaded guilty, but his conviction was erased in 1997 after he completed three years of probation. A law gives breaks to young offenders who commit crimes but subsequently stay out of trouble. Nonetheless, he’s on the sex offender list.

In an order released Saturday, the Supreme Court said it will take up the appeal. The court wants lawyers to address several issues, including whether the registry in some cases violates the constitution as “cruel and unusual punishment.”

The man in the Wayne County case said his status on the registry has hurt his ability to work, affected his family life and caused depression. In 2012, a judge ordered his removal, but the state appeals court last year reversed that decision. “The central purpose of (the registry) is not intended to chastise, deter, or discipline. Rather, it is a remedial measure meant to protect the health, safety and welfare of the general public,” the appeals court said.

The Michigan Supreme Court's order in Michigan v. Telemoski is available at this link, and here are excerpts from it:

The parties shall include among the issues to be briefed: (1) whether the requirements of the Sex Offenders Registration Act (SORA), MCL 28.721 et seq., amount to “punishment,” see People v Earl, 495 Mich 33 (2014); (2) whether the answer to that question is different when applied to the class of individuals who have successfully completed probation under the Holmes Youthful Trainee Act (HYTA), MCL 762.11 et seq.; (3) whether MCL 28.722(b) (defining HYTA status to be a “conviction” for purposes of SORA) provides the defendant constitutionally sufficient due process where the defendant is required to register pursuant to SORA as if he had been convicted of an offense, notwithstanding that upon successful completion of HYTA the court is required to “discharge the individual and dismiss the proceedings” without entering an order of conviction for the crime.... (6) whether it is cruel and/or unusual punishment to require the defendant to register under SORA, US Const, Am VIII; Const 1963, art 1, § 16.

The Criminal Defense Attorneys of Michigan and the Prosecuting Attorneys Association of Michigan are invited to file briefs amicus curiae. Other persons or groups interested in the determination of the issues presented in this case may move the Court for permission to file briefs amicus curiae.

December 20, 2015 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (25)

"'Necessary AND Proper' and 'Cruel AND Unusual': Hendiadys in the Constitution"

The title of this post is the headline of this intriguing paper I just came across on SSRN authored by Samuel Bray.  In addition to getting me thinking about the cool word hendiadys, this paper provides some interesting ideas for fans of Eighth Amendment.  Here is the abstract:

Constitutional doctrine is often shaped by the details of the text. Under the Necessary and Proper Clause, the Supreme Court first considers whether a law is “necessary” and then whether it is “proper.”  Some justices have urged the same approach for the Cruel and Unusual Punishments Clause: first ask if the punishment is “cruel,” then if it is “unusual.” That each clause has two requirements seems obvious, and it is has been the assumption underlying vast amounts of scholarship.  That assumption is incorrect.

This Article argues that “necessary and proper” and “cruel and unusual” are best read as instances of hendiadys. Hendiadys is a figure of speech in which two terms, separated by a conjunction, have a single complex meaning.  It is found in many languages, including English: e.g., “rise and shine,” “nice and fat,” “cakes and ale.”  When “cruel and unusual” is read as a hendiadys, the clause does not prohibit punishments that merely happen to be both cruel and unusual.  Rather, it prohibits punishments that are unusually cruel, i.e., innovative in their cruelty.  If “necessary and proper” is read as a hendiadys, then the terms are not separate requirements for congressional action.  The word “necessary” requires a close relationship between a statute and the constitutional power it is carrying into execution, and “proper” instructs us not to interpret “necessary” in its strictest sense.

To read each of these constitutional phrases as a hendiadys, though seemingly novel, actually aligns closely with the early interpretations, including the interpretation of the Necessary and Proper Clause in McCulloch v. Maryland.  The readings offered here solve a number of puzzles, and they better capture the subtlety of these clauses.

December 20, 2015 in Recommended reading, Sentences Reconsidered | Permalink | Comments (3)