January 9, 2016
"Keeping It REAL: Why Congress Must Act to Restore Pell Grant Funding for Prisoners"
The title of this post is the title of this new paper by SpearIt now available via SSRN. Here is the abstract:
In 1994, Congress passed the Violent Crime Control and Law Enforcement Act (VCCLEA), a provision of which revoked Pell Grant funding “to any individual who is incarcerated in any federal or state penal institution.” This essay highlights the counter-productive effects this particular provision has on penological goals. The essay suggests Congress acknowledge the failures of the ban on Pell Grant funding for prisoners, and restore such funding for all qualified prisoners.
January 8, 2016
SCOTUS grants cert on Johnson/ACCA vagueness retroactivity!
The new year is off to quite a start for federal sentencing fans: in addition to lots of notable action by the US Sentencing Commission this afternoon (basics here), the Supreme Court this afternoon granted cert via this order in Welch v. US to address the retroactive impact of its big Johnson Armed Career Criminal Act ruling declaring the residual clause of ACCA void for vagueness. Lyle Denniston has this new post at SCOTUSblog discussing the grant, and here is how it gets started:
Taking on a case that potentially may lead to the release of hundreds — and maybe more — prison inmates, the Supreme Court on Friday afternoon agreed to consider extending to earlier, closed cases its ruling last June in Johnson v. United States. A key factor in the Court’s review could be that the Justice Department now takes the position that Johnson should apply retroactively.
Defense lawyers have said that at least hundreds of inmates have already served the maximum sentence that would now be allowed under the Johnson case, but remain in prison under longer sentences, so a decision applying that precedent to them would lead to their prompt release. The question of the retroactivity of that ruling on enhanced sentencing has resulted in a nine-way split among federal appeals courts.
The new case is Welch v. United States; it will be argued in March.
US Sentencing Commission promulgates "Johnson fix" guideline amendment and proposes many other notable amendments
As noted in this recent post, today the US Sentencing Commission conducted a public meeting at which it was scheduled to "Vote to Promulgate Proposed Crime of Violence Amendment" and to "Vote to Publish Proposed Guideline Amendments and Issues for Comment." I suggested that these two agenda items could be a very big deal for federal sentencing fans; after watcing the meeting online, I now think the slate of new proposed guideline amendments that the USSC just unanimously voted to publish may be an even bigger deal than the "crime of violence" amendment that was also just officially promulgated by the USSC.
I say this because,
(1) on the crime of violence guideline amendment front, the USSC's new promulgated amendment (a) seemingly seeks to codify the best prior jurisprudence concerning what offenses should be enumerated as violent priors in the career offender guideline while eliminating the vague residual clause essentially blown up by the SCOTUS Johnson decision, and (b) seemingly will not be given retroactive effect because doing so could prove almost administratively impossible. Meanwhile....
(2) on the other proposed guideline amendment front, the USSC appears to be proposing potential amendments to a number of the most controversial and consequential amendments that it had not addressed in prior recent amendment efforts. Specifically, it seems that the USSC, after having adjusted the drug and fraud guidelines in the last two amendment cycles, now is ready and eager to consider at least some significant tweaks to the immigration and child pornography guidelines.
Because it is not easy to fully assess the potential import and impact of all the USSC action today simply by watching the public meeting live, I am hopeful that some follow-up documents will soon be available on the Commission's website so that all federal sentencing fans can fully understand and assess all of today's action. But, even before we see any official accounting of today's USSC efforts, I am eager to compliment all the members and staff of the Commission for reminding me that at least some inside-the-Beltway folks can conduct (and complete) critically important and consequential government work in an efficient and bipartisan manner (and on a Friday afternoon, no less). Kudos to the USSC!
UPDATE: I just got an official email from the US Sentencing Commission that included this text and links:
At today’s public meeting, the U.S. Sentencing Commission unanimously voted to adopt an amendment relating to the definition of “crime of violence” in the Career Offender and other federal sentencing guidelines (press release). This amendment was the result of a multi-year study prompted by concerns and problems relating to the definition of “crime of violence.” The amendment, which eliminates the so-called “residual clause,” was informed by the recent Supreme Court case, Johnson v. United States, issued in June 2015. Read the adopted amendment.
In addition, the Commission proposed an amendment on immigration offenses which would recalibrate the guidelines to ensure more proportional sentences that reflect the totality of the circumstances in a particular case. The Commission also proposed amendments that would allow for higher penalties for animal fighting offenses. An update to the Commission’s policy statement pertaining to compassionate release was also proposed. Read all of the proposed amendments and issues for comment.
Might SCOTUS take up Johnson retroactivity ASAP via Texas case appealed from district court?
Hard-core federal sentencing fans (and/or obsessive readers of this blog) know that lower federal courts have been splitting since the summer over the reroactive application of Supreme Court's big Johnson Armed Career Criminal Act ruling declaring the residual clause of ACCA void for vagueness. As noted in this prior post, some prisoners have been urging SCOTUS to take up this issue ASAP via an original habeas petition, but now the US Solicitor General (which has been supportive of Johnson retroactivity) has this new SCOTUS filing suggesting that the Supreme Court might consider taking up the issue ASAP via a case from Texas being appealed directly from the district court's denial of relied.
This new SCOTUSblog posting by Lyle Denniston provide some broader context on all the substantive and procedural issues raised by post-Johnson litigation; it notes that the Justices are slated to consider this case from Texas, Harrimon v US, during their conference today. Here is the basic backstory of this particular case:
When Harrimon’s case was in lower courts, his sentence for illegal possession of a gun by a convicted felon was originally set at ninety-six months — eight years — but then was raised to fifteen years and eight months (188 months) by applying the enhancement provision of the residual clause. After the Johnson decision emerged, Harrimon began a federal habeas challenge to the longer sentence, seeking to rely upon that decision on the premise that it applied retroactively.
While his case was still pending in a trial court, the Fifth Circuit in a separate case ruled that theJohnson decision would not apply retroactively to cases pending on post-conviction review, such as federal habeas challenges. The district court judge rejected Harrimon’s plea, and his lawyers then moved on to the Fifth Circuit. However, instead of waiting for that court to decide his appeal, his lawyers filed a petition asking the Supreme Court to review his challenge prior to a decision by the appeals court.
I would love to see SCOTUS take up the Johnson retroactivity issue ASAP for a variety of substantive and procedural reasons. And I sincerely hope that the Justices feel some significant obligation to help lower federal courts properly clean up the uncertain mess that SCOTUS itself made through its remarkable Johnson vagueness ruling.
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 federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
- "The Circuit Split on Johnson Retroactivity"
- Should SCOTUS deal with Johnson retroactivity through an original habeas petition?
- Updating the bubbling lower-court vagueness mess six months after Johnson
"Full Restitution for Child Pornography Victims: The Supreme Court's Paroline Decision and the Need for a Congressional Response"
The title of this post is the title of this notable paper authored by Paul Cassell and James Marsh now available via SSRN. Here is the abstract:
In this article, we have reviewed the legal issues surrounding restitution for child pornography victims. In our view, the Supreme Court’s Paroline decision failed to fully implement the congressional mandate that victims receive restitution for the “full amount” of their losses. Congress should move swiftly to ensure full restitution for child pornography victims by enacting the proposed Amy and Vicky Act — a more rational scheme for awarding restitution.
After the Supreme Court's Paroline ruling in April 2014, a number of reasonable folks reasonably predicted that Congress could and would move quickly to pass legislation to remedy the victim-oriented concerns stressed in this article. But, now nearly two years later, "Paroline fix" legislation seems stuck in Congress while victims like Amy and Vicky and others wait and wait for statutory reforms that, in the words of this article, would create "a more rational scheme for awarding restitution."
January 8, 2016 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (7)
Is mass incarceration contributing to the dumbing down of America?
The question in the title of this post is prompted by this local article headlined "Oregon Spends Nearly Four Times More on Incarceration than Higher Education." As these excerpts reveal, the article focuses on just one state's investment of more taxpayer resources on locking up young people than on educating them:
According to new data released near the end of 2015, Oregon is among the states with the lowest ratio of higher education spending to prison and incarceration spending. Criminal justice and higher education experts, advocates and reformers told GoLocal that, the state’s disparity in funding is a major issue that needs to be addressed.
According to a study entitled Public Research Universities: Changes in State Funding, published by the American Academy for Arts and Sciences, Oregon spends $204 million in higher education each year, only fifth from the bottom in the United States. Meanwhile, the state spends nearly four times that, $802 million in total, on corrections.
That gives them the second largest disparity in the country, trailing only Michigan and leading Arizona, Vermont and Colorado in the top five. According to the Academy, the lack of funding can have major impacts on the U.S. and state economy in the future....
The Partnership for Safety and Justice is also calling for a decrease in the amount of money spent on prisons. The group fights for a decrease in crime and a change in the way the criminal justice system is funded. In an interview with GoLocal, Shannon Wight, Vice President of the Partnership for Safety and Justice, said that recent actions taken by the State of Oregon to cut prison spending should be only the beginning....
Business leaders told GoLocal that more spending for schools is crucial, especially given Oregon’s issues with education. "First and foremost, we need to improve the reputation of our education system," John Taponga, President of ECONorthwest, told GoLocal.
In order to do so, groups like the Partnership for Safety and Justice recommend taking a closer look at funding for education and incarceration. “A few years ago Pew did a similar analysis and what we learned from that is that it’s important to note is how much of our general fund we are spending on corrections vs education,” Wight said. “Certainly as a state we want to emphasize education over incarceration if we want to see the state, and its residents, thrive.”
Wight cautioned, however, that spending should be shifted gradually to avoid taking important resources away from those already serving time behind bars. “It’s important to remember that we can’t just spend less on prison and put all that money into schools right away,” Wight said. “We have to thoughtfully reduce the number of people in our correctional systems by evaluating who should be under correctional control and who shouldn’t; who should instead be receiving help from mental health or addiction services and who can be held accountable without doing prison time. Counties need the state investment to do that work effectively.”
The full report published by the American Academy for Arts and Sciences referenced in this article is available at this link. The figure reprinted here comes from the report (which also details how increased spending on health care is another key factor reshaping how states spend limited resources).
January 7, 2016
US Sentencing Commission slated to vote on "Johnson fix" guideline amendment and promulgate other proposals
As detailed in this official notice, the United States Sentencing Commission has "a public meeting of the Commission ... scheduled for Friday, January 8, 2016, at 1:00 p.m.... This meeting will be streamed live." Here is the agenda (with my emphasis added):
- Vote to Adopt August 2015 Meeting Minutes
- Report from the Chair
- Report from the Staff Director
- Possible Vote to Promulgate Proposed Crime of Violence Amendment
- Possible Vote to Publish Proposed Guideline Amendments and Issues for Comment
These last two agenda items could be a very big deal, depending on what the USSC has in the works.
Deep dive into notable state-level clemency developments
This notable new Stateline piece, headlined "Move Is on to Make End-of-Year Pardons Less Random," reports on some notable new developments in state clemency practices. I recommend a full read of the piece for clemency fans, and here are excerpts:
Barry Beach in Montana got one. Gabrielle Cecil in Louisville got one. And actor Robert Downey Jr. in California got one. They won the holiday-time clemency lottery and, in the past two months, had their sentences commuted or pardoned.
Beach’s 100-year sentence for murder was shortened to time served, 30 years. Cecil’s life sentence for killing her abusive partner was forgiven. And “Iron Man” actor Downey, whose felony drug conviction in the 1990s led to nearly a year in jail, got a pardon for good behavior. They’re the lucky ones.
Only 15 states, including Arkansas and California, grant frequent and regular pardons, to more than 30 percent of applicants, according to the Collateral Consequences Resource Center, a nonprofit that promotes public discussion of the lasting effects of conviction. The largest group — 21 states, including Kansas, Kentucky and Tennessee, as well as the District of Columbia —provided few or no pardons in the past 20 years. Nine states have a regular pardon process but grant clemency to just a small percentage of those who ask for it, and five states — Louisiana, Maine, New Mexico, Ohio and Wisconsin — grant pardons only infrequently, depending on the governor.
But several governors and state legislatures have moved in recent months to make the clemency process easier and pardons more frequent, reflecting a growing consensus that harsh mandatory minimum sentences have left too many Americans behind bars. “I do see a wave of mercy rolling across the country,” said P.S. Ruckman Jr., who teaches political science and runs a clemency blog, pardonpower.com. “Over the last 10 years, governors erred on the side of caution, and did nothing” to grant clemency or pardons, Ruckman said. “Increasingly that mindset is changing.”...
Yet despite the flurry of activity, the use of clemency and pardons by governors to ease long sentences or restore civil rights to people who have served their time remains largely a matter of chance. Your odds of getting a pardon or having your sentence commuted to, for example, time served, depend completely on what state you’re convicted in and, most importantly, on who the governor is. “It’s wholly dependent on what the governor wants to do, who the governor is, and how safe, politically, the governor feels,” said former Maryland Gov. Bob Ehrlich, a Republican who granted 228 pardons during his time in office.
Ehrlich now campaigns for regular clemency through a partnership with the law school at Catholic University in Washington, D.C., where students help inmates prepare clemency petitions to governors or the president. “It’s all subjective factors. They should not play into it, but they do,” Ehrlich said....
In the states, sporadic changes in legislation have begun to streamline the process for getting clemency, and some high-profile governors are starting to address the issue:
- New York: Democratic Gov. Andrew Cuomo said in October he would create a “clemency project” to identify prisoners who qualify for clemency, and he commuted sentences for two people and pardoned two others. The New York Times called it a "drastic turnaround" in a state whose governors have granted few pardons over the past four decades.
- Illinois: In November, Republican Gov. Bruce Rauner granted clemency to 10 people while denying 200 other requests. But the governor said he now is working through a backlog of 1,200 petitions from previous administrations.
- Montana: A new law took effect Oct. 1 that lets the governor grant clemency, even if the state board of pardons and paroles denies it. That allowed Democratic Gov. Steve Bullock to cut the 100-year murder sentence of Barry Beach to time served.
Some states like Arkansas, Connecticut and Delaware have a “culture of clemency,” said Margaret Love, the U.S. pardon attorney under Presidents George H.W. Bush and Bill Clinton. “Some states have a pretty good system, but most rely on the character of the particular governor.”
"The Fog Around Cost-Benefit Studies of Crime and Punishment May Finally Be Clearing: Prisoners and Their Kids Suffer Too"
The title of this post is the title of this new essay authored by Michael Tonry and available via SSRN. Here is the abstract:
Cost-benefit and cost-effectiveness studies of crime control and punishment have proliferated since the late-1980s. Especially in relation to crime prevention programs and punishment policies they have been hugely, and regrettably, influential. “Regrettable” because many have relied on exaggerated estimates of “intangible costs” of victimization so unrealistically high that that almost any sanctioning policy no matter how severe could be shown to be effective.
Likewise, almost any prevention program estimated to have prevented rapes or robberies could be shown to generate benefits in excess of costs. Estimates for rape and homicide were greatly exaggerated because they were initially based on jury damage awards in civil law suits, the right hand tale of any crime distribution because a successful lawsuit depends on the presence of an egregious crime and one or both of a highly sympathetic victim and a wealthy or well-insured defendant. The latter are not common characteristics of rape and homicide defendants.
More recent studies have relied on statistical life valuations ranging from $0.7 to 26.4 million, a range so wide that any number chosen is inherently arbitrary. Recent work, however, has shown that studies relying on estimates of intangible victim costs are fundamentally flawed for the reasons described and others.
Are there any clear data patterns linking marijuana reforms and broader criminal justice developments?
The somewhat cumbersome question in the title of this post is prompted by the number crunching appearing in this interesting data-focused new piece by Jon Gettman via High Times titled ""Pot Matters: Marijuana in the Larger Context of Criminal Justice Reform." Here are excerpts:
The Bureau of Justice Statistics has recently release their annual data on correctional populations in the United States, comparing the latest data (from 2014) with prior years. This data on people under correctional supervision consists of totals of people incarcerated in either jail or prison, those on probation, or released on parole. This data does not include information on the offenses committed by people under correctional supervision. The big headline is that the total population of people under the watchful eye of the correctional supervision is declining.
In 2014, there were 6,851,000 people in the system, a decline of 52,200 offenders from 2013. The overall rate of 2.8 percent of adults in the United States being under some form of correctional supervision is the lowest since 1996. The correction population has been declining by an annual average of one percent since 2007. The incarcerated population increased slightly (by 1,900) in 2014, and most of the decrease over time has been in the area of community supervision (probation and parole). Reducing the number of marijuana arrests in a jurisdiction is an easy way to reduce the burden on probation officers given that many marijuana possession offenses result in probation....
From 2005 to 2014, the total correctional population in the United States fell by 241,000 from 7,055,600 to 6,814,600. Actually, the federal population increased by 33,500 in this period, but the state population fell by 274,500. However, the correction population increased in 26 states by a total of 283,100. It fell in 24 states and the District of Columbia by 557,300.
So which states are increasing their correctional populations? The biggest increases from 2005 to 2014 were in Georgia (48,000), Pennsylvania (47,500), Kentucky (30,700), Colorado (25,500) and Tennessee (20,600). The other states rounding out the top 10 were Alabama, Mississippi, Virginia, Arizona and Iowa.
The biggest decreases in correctional populations were in California (-160,700), Massachusetts (-101,800), Florida (-49,300), New York (-38,400) and Texas (-34,500). The rest of the top 10 in reduced correctional populations were New Jersey, Illinois, Minnesota, Connecticut and North Carolina.
There is no clear pattern here with respect of state marijuana laws, but there is an interesting trend worth noting. States that rely more on community supervision than incarceration often have reformed their marijuana laws....
Of the 15 jurisdictions with the highest levels of community supervision, in addition to Georgia, seven of them have decriminalized or legalized marijuana (Washington D.C., Minnesota, Ohio, Massachusetts, Washington, Oregon and Maryland). Increasing the list to 16 adds Colorado. Other states in this group of 16 have medical marijuana laws (Rhode Island, Hawaii, New Jersey, Vermont and Michigan).
Marijuana law reform and legalization are sound policies with great merit, but they are also part of a larger issue in the United States, the reform of the criminal justice system in ways that reduce the number of people under correctional supervision. This has always been part of the argument for legalizing cannabis — the justice system should stop wasting resources on marijuana users and divert them to violent offenders.
The recent trends in correctional supervision data present good news and bad news when it comes to the legalization of cannabis. The good news is that many states are receptive to criminal justice reform, particularly ones that have already made a commitment to community supervision as an alternative to incarceration. These states, and states that are reducing their correctional populations, may be the most receptive to ending arrests for marijuana offenses.
The bad news is that other states remain committed to increasing arrests and increasing correctional populations. These states, their criminal justice professionals and their political leaders will present the greatest challenges to the legalization of cannabis throughout the United States.
I would be very eager for readers to point me to any other research or data sets starting to look at whether and how a state's approach to marijuana reform may (or may not) be incfluencing other criminal justice developments in the state. And, of course, anyone just generally interested in marijuana reform ought to be regularly checking out my Marijuana Law, Policy & Reform blog. Here are links to a few recent posts from that locale:
- Should we expect any major federal marijuana reform developments in 2016?
- Two different prespectives on the coming marijuana reform future
- Gearing up for historic 2016 in the arena of marijuana law, policy and reform
- MPP Director provides Top 10 accounting of marijuana reform achievements in 2015
- SAM Prez provides Top 10 accounting of marijuana reform difficulties in 2015
January 6, 2016
Two new Slate commentaries assailing the modern death penalty and modern prisons
The on-line magazine Slate has these two notable new commentaries on two topics that are often the focal point of this blog:
Making the case for a "20-Year Maximum for Prison Sentences"
The excessively lengthy incarceration of offenders — yes, even for violent crimes — is counterproductive, costly, and inhumane. To remedy this problem, Congress and state legislative bodies should establish an upper limit of 20 years in prison as a maximum penalty, except in unusual cases such as a serial rapist who has not been amenable to treatment in prison or a mass murderer. The rationale for such a policy shift is grounded in both humanitarian and public-safety concerns. Life sentences ruin families and tear apart communities; they deprive the person of the chance to turn his or her life around. Moreover, it has long been known that individuals “age out” of crime, and that this occurs at a surprisingly young age. As is true of all adults, offenders mature in prison as they age and develop a longer-term vision for their lives. Research by leading criminologists Alfred Blumstein and Kiminori Nakamura demonstrates that an 18-year-old arrested for robbery is no more likely to be arrested for this crime by the age of 26 than anyone in the general population. Thus, each successive year of incarceration after this decline sets in produces diminishing returns for public safety.
This impact comes at great cost as well. Estimates are that the cost of imprisoning an elderly offender is double that of a young offender, largely due to high health-care costs. Given that public-safety resources are finite, incarcerating aging prisoners inevitably diverts resources from preschool programs, substance abuse treatments, and mental health interventions that all produce demonstrated and substantial crime-reduction benefits.
Lengthy prison terms also exacerbate the dramatic racial and ethnic disparities that have defined the phenomenon of mass incarceration. Nationwide, nearly two-thirds of the people serving life in prison are African-American or Latino. The sight of elderly men of color in prison uniforms and bound in wheelchairs only reinforces the racialized nature of incarceration in the modern era.
Some skeptics would argue that while the public-safety argument may apply to many offenders, there are nonetheless individuals who present such a threat to the community that even 20 years in prison is not sufficient for public protection. That’s certainly correct. But the problem is that on the day of sentencing, no one — including the judge — can predict who those people are, or how individuals may mature over a 20-year period.
For this reason, policymakers could establish a mechanism to evaluate the public-safety risk of select prisoners as they near the end of their 20-year term. A review board comprised of psychologists and other professionals could make recommendations either to a judge or a parole board regarding whether continued confinement is necessary for public safety. And in such cases, they should also propose appropriate treatment interventions designed to produce behavioral change leading to eventual release.
While some might think this is unrealistic, sentences of more than 20 years are quite rare in many democratic nations. Norway, for example, limits prison terms to no more than 21 years, followed by a period of civil confinement when deemed necessary. Even the worst mass killer in the country’s history, Anders Breivik, who killed 77 people in 2011, is serving such a prison term. Contrast this to the current practice in the United States, where countless drug offenders are serving far lengthier terms.
January 5, 2016
Interesting international death penalty data via Amnesty International
Amnesty International (AI) is a human rights organization that has long called for abolition of the death penalty worldwide. Via this New York Times article, headlined "Death Sentences Surge, Even as More Countries Drop Capital Punishment," I see that AI has released its latest accounting on global capital punishment practives in this lengthy report titled "Death Sentences and Executions in 2014." Here is the report's executive summary:
Amnesty International recorded executions in 22 countries in 2014, the same number as in 2013. At least 607 executions were carried out worldwide, a decrease of almost 22% compared with 2013. As in previous years, this figure does not include the number of people executed in China, where data on the death penalty is treated as a state secret. At least 2,466 people are known to have been sentenced to death in 2014, an increase of 28% compared with 2013. This increase was largely due to sharp spikes in death sentences in Egypt and Nigeria, where courts imposed mass sentences against scores of people in some cases.
An alarming number of countries that used the death penalty in 2014 did so in response to real or perceived threats to state security and public safety posed by terrorism, crime or internal instability. For example, Pakistan lifted a six-year-long moratorium on the execution of civilians in the wake of the horrific Peshawar school attack. The government also pledged to execute hundreds of people on death row who had been convicted on terrorism-related charges. China made use of the death penalty as a tool in the “Strike Hard” campaign, which the authorities characterized as a response to terrorism and violent crime in the Xinjiang Uighur Autonomous Region.
There is no evidence that the death penalty has a greater deterrent effect on crime than terms of imprisonment. Where governments present the death penalty as a solution to crime or insecurity they are not only misleading the public but — in many cases — failing to take steps to realize the goal of abolition recognized in international law.
Many of those states that retain the death penalty continued to use it in contravention of international law and standards. Unfair trials, “confessions” extracted through torture or other ill-treatment, the use of the death penalty against juveniles and people with mental or intellectual disabilities, and for crimes other than “intentional killing” continued to be concerning features of the use of the death penalty in 2014.
Despite these concerns, the world continues to make progress towards abolition.
With the exception of Europe and Central Asia region, where Belarus — the only country in the region that executes — resumed executions after a 24-month hiatus, Amnesty International documented positive developments in all regions of the world. The Sub-Saharan Africa region saw particular progress, with 46 executions recorded in three countries, compared to 64 executions in five countries in 2013 — a 28% reduction. The number of executions recorded in the Middle East and North Africa region decreased by approximately 23% — from 638 in 2013 to 491 in 2014. In the Americas, the USA is the only country that executes, but executions dropped from 39 in 2013 to 35 in 2014, reflecting a steady decline in executions over recent years. The state of Washington imposed a moratorium on executions.
Fewer executions were recorded in the Asia-Pacific region, excluding China, and debates on abolition began in Fiji, South Korea and Thailand.
"Reducing Crime Through Expungements"
The title of this post is the title of this timely and interesting (and perhaps controversial) new paper by Murat Mungan now available via SSRN. Here is the abstract:
Expungements reduce the visibility of a person's criminal record, and thereby reduce the informal sanctions that may be imposed on him. This reduction is enjoyed by the ex-convict only if he does not become a repeat offender, because otherwise he re-obtains a criminal record. Thus, the value a person attaches to having his record expunged is inversely related to his criminal tendency.
Therefore, by making expungements costly, the criminal justice system can sort out low criminal tendency individuals — who are unlikely to recidivate — from people who have high criminal tendencies. Moreover, the availability of expungements does not substantially affect a first time offender's incentive to commit crime, because one incurs a cost close to the reduction in informal sanctions that he enjoys by sealing his criminal record. On the other hand, expungements increase specific deterrence, because a person who has no visible record suffers informal sanctions if he is convicted a second time. Thus, perhaps counter-intuitively, allowing ex-convicts to seal their records at substantial costs reduces crime.
John Gleeson, a member of my Sentencing Judges Hall of Fame, joins notable "teammates" in stepping down from federal bench
In a (personal favorite) post of mine here more than a decade ago, I mused about creating a "Sentencing Judges Hall of Fame" — an institution like the Baseball Hall of Fame which would seek to foster an appreciation of the historical development of sentencing and its impact on our justice system. In that post, I noted that the first inductee of my Sentencing Judges Hall of Fame would be easy: Judge Marvin Frankel, whose text Criminal Sentences: Law Without Order helped launch modern sentencing reforms. I thereafter went on to praise the more recent sentencing work of US District Judges Nancy Gertner and Paul Cassell, suggesting their post-Blakely sentencing opinions earn them a spot in the SJ Hall of Fame.
I bring up that long ago post in part because Nancy Gertner and Paul Cassell, in addition to having both done extraordinary sentencing work as federal district judges, both made the (fairly unusual) decision in recent years to step down from the federal bench and return to private practice. And now, as reported in this New York Daily News article, US District Judge John Gleeson — another extraordinary judge who has done extraordinary sentencing work in recent years — has told his judicial colleagues that he is soon to be stepping down from bench. Here are the basics:
Brooklyn Federal Judge John Gleeson, the former prosecutor who nailed the late Gambino boss John Gotti on racketeering and murder charges — shattering his “Teflon Don” reputation — is stepping down from the bench to practice law, the Daily News has learned. Gleeson, 62, made the announcement to his fellow judges on Monday, sources said. He said the decision was made in the best interests of his family — Gleeson is married and has two college-age daughters.
Gleeson was next in line to become the chief judge for the Eastern District of New York when Judge Carol Amon’s term as chief expires. With Gleeson out of the picture, Judge Dora Irizarry is expected to be the next chief judge, sources said.
“He’s worked in government service practically his entire life,” a source told The News. “If he wants to earn money while he’s still young, there’s nothing wrong with that.” Federal judges make about $200,000 a year, and Gleeson is expected to make in the seven figures in private practice.
It is rare, but not unheard of, for a federal judge with lifetime tenure to return to private practice. John Martin gave up his judicial robe in the Southern District of New York in 2003 to join a law firm....
President Clinton rewarded Gleeson [for his work as a federal prosecutor] in 1994 by appointing him to the bench....
In recent years, Gleeson was somewhat of a maverick on the bench, advocating against draconian sentences that took away a judge’s discretion. Federal prosecutors are also fighting him tooth and nail on a decision to expunge the criminal record of a Brooklyn woman who convinced the judge that she was trying to turn her life around but could not find a good job because of a fraud conviction years ago.
Here are links to a few prior posts reporting on just a few of Judge Gleeson's prior opinions that earned him a plac in the SJ Hall of Fame:
- Former US Attorney, and now District Judge, makes pitch to AG Holder on mandatory minimum charging
- Former federal prosecutor urges "Mandatory minimums for kingpins only"
- US District Judge Gleeson assails drug guidelines in another potent opinon
- US District Judge Gleeson assails DOJ use of MM sentencing threats to force pleas
- US District Judge Gleeson prods prosecutors to undo stacked gun counts and then praises effort to do justice
- US District Judge John Gleeson finds extraordinary circumstances to order expungement of old federal fraud conviction
January 4, 2016
Notable new reporting on juve LWOP as we await SCOTUS ruling on Miller retroactivity
As helpful reader alerted me to notable new reporting from The Marshall Project and Mother Jones focused on one particular juvenile offender serving a mandatory LWOP sentence in Louisiana as well as broader juve LWOP realities. The lengthy main piece, available here via the Marshall Project, is headlined "This Boy’s Life: At 16, Taurus Buchanan threw one deadly punch — and was sent away for life. Will the Supreme Court give him, and hundreds like him, a chance at freedom?". Here are a couple of paragraphs setting the table for the case-specific tale:
Taurus Buchanan stood trial in the era of the “superpredator,” the label applied to violent juveniles in the mid-1990s, when states and the federal government passed one tough-on-crime law after another. Today, two decades later, a trio of rulings from the US Supreme Court has peeled back some of those laws, recognizing the folly of assigning equal culpability to adults and kids. In October, the court heard arguments in a fourth case, and how that ruling comes down could determine what happens to hundreds of lifers sent to prison when they were kids....
Between 1992 and 1999, 49 states and the District of Columbia made it easier to try juveniles as adults. Some states removed consideration of youth altogether, replacing discretion with compulsory triggers. By 2012, there were 28 states across the nation that were handing out mandatory life-without-parole sentences to juveniles.
One was Louisiana, where Taurus exemplified how mandatory sentencing could render a defendant’s youth meaningless. Once he was charged with second-degree murder, Taurus was automatically tried as an adult because he was over the age of 14. If convicted, he would automatically be sentenced to life without parole.
By 2015, more than 2,230 people in the United States were serving life without parole for crimes committed as juveniles, according to data compiled by the Phillips Black Project, a nonprofit law practice that collected information on all 50 states. In 2007, the Equal Justice Initiative, a nonprofit law organization based in Alabama, found that there were 73 cases in which kids were sent away for crimes they committed at age 13 or 14. One was sentenced to life for kidnapping, another for sexual battery, another for taking part in a robbery in which someone was shot but survived.
The Phillips Black data shows that, with 376, Pennsylvania currently has the most people serving juvenile life sentences. But Louisiana has a higher number of such inmates per capita than any other state. Of the 247 inmates in Louisiana, 199 are African American. In East Baton Rouge Parish, where Taurus stood trial, the racial disparity is even starker: Almost half of the parish population is white, but 32 of the 33 serving juvenile life-without-parole sentences are black.
These two companion pieces provide more details on the Phillips Black juve LWOP data and how it was compiled:
January 4, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Second Amendment issues, Sentences Reconsidered | Permalink | Comments (1)
Excessive federal sentencing and strict mandatory minimums at center of armed "militia" occuptation in Oregon
Because I am back to full-time teaching this week, I have not yet had much time to research closely the sentencing backstory seemingly inspiring a group of Americans to take up arms against the federal government in Oregon. But a number of readers have made sure I did not miss that federal sentencing outcomes, and particularly the application of a 5-year mandatory minimum sentencing term, have been a central catalyst for what is now going on. Helpful, this new lengthy Washington Post piece, headlined "What spurred the armed occupation of a federal wildlife refuge in southeast Oregon," provides some of the key sentencing details:
The several-hundred-person procession through Burns, Ore., concluded at Dwight Hammond’s doorstep early Saturday evening. In a town of less than 3,000 tucked in Oregon’s southeast corner, it was a massive show of support for Hammond, 73, and his son Steven, 46, as they prepared to report to federal prison Monday.
“I thank everyone who came out here today,” Dwight Hammond told the supporters after he and his wife hugged each of them. “See you in five years.” The father and son had been sentenced last year for setting fires on federal land, the conclusion of two decades of clashes between the Hammond family and the federal government that have made the ranchers a cause celebre for some on the right.
For their supporters, the Hammonds represent the latest battle in a struggle as old as the American settlement of the northwest: pitting poor cattle farmers against the federal government and its land regulations in states such as Oregon, where the government owns more than half of the land.
“Most Americans, if they knew the story of the threats and the charges brought against these ranchers, they would say this isn’t right,” said Jeff Roberts, one of the organizers of Saturday’s rally. “We really wanted to show the family support and let them know that they’re not alone. That Americans don’t turn their backs on them.”
But there is a stark divide among the ranks over how to best remedy the plight of the cattle rancher. Some activists, such as Roberts, think the battle will be won through a deliberate public awareness campaign, rallies and town hall meetings. Others, including some armed militias, have another tact in mind: armed resistance.
As Saturday’s rally concluded, a small subsection of attendees, led by Ammon Bundy, began launching into impromptu speeches and, to the horror of many of the rally’s primary organizers, declared that it was time for the group to take up arms. “Those who want to go take a hard stand, get in your trucks and follow me!” Bundy declared to the group at the conclusion of the event, according to several people who were in attendance. “We were just aghast,” Roberts said.
Within the hour, Bundy and about a dozen armed supporters had seized Malheur National Wildlife Refuge, posting armed men at the front gate and vowing to occupy the federal land for “years.”
His father, Cliven Bundy, a Nevada rancher who in 2014 had an armed standoff with federal agents who were attempting to prevent him from illegally grazing his cattle on federal land, who is not himself inside the refuge, told a reporter in Oregon that “150 militia men” had occupied the federal land. As of 6 p.m. Sunday, the armed men remained at the refuge. “There were absolutely not 150 of them,” Roberts said Sunday morning. “He had a small handful of supporters, maybe a dozen. I saw them as they pulled out in their trucks.”...
After a two-week trial, Dwight and Steven Hammond were convicted by jury. They were sentenced in October to five years in prison for committing arson on federal land in 2001 and 2006. The pair had been sentenced and served time previously, but on appeal a federal judge ruled that their initial sentences had been too short.
In the 2001 incident, the men, who had leased grazing rights to the land for their cattle, said they had started the fires on their own land to try to prevent the spread of an invasive species of plant, and that the fire had inadvertently burned onto public land. Prosecutors said the fire consumed 139 acres of public land, and was set in an attempt to hide evidence after the men were part of a hunting party that illegally killed several deer on the federal land.
In 2006, the Hammonds allegedly set a “back fire” meant to protect their land after a series of lightning storms had started a fire on the federal property. Prosecutors said that fire then spread onto the federal land.
“We all know the devastating effects that are caused by wildfires. Fires intentionally and illegally set on public lands, even those in a remote area, threaten property and residents and endanger firefighters called to battle the blaze” Acting U.S. Attorney Billy Williams said in a statement issued after the Hammonds were sentenced. “Congress sought to ensure that anyone who maliciously damages United States’ property by fire will serve at least 5 years in prison. These sentences are intended to be long enough to deter those like the Hammonds who disregard the law and place fire fighters and others in jeopardy.”
The sentence outraged many fellow ranchers and constitutionalist groups in the northwest, who considered the case an overreach of federal regulation and of the federal prosecutors. “We don’t agree with the sentencing, so we came out to stand in solidarity and support,” said Brandon Curtis, president of the Idaho chapter of Three Percent, a constitutionalist group that was heavily involved in organizing the rally for the Hammonds.
Most infuriating about the Hammond case, their supporters say, is that the two men were charged under a federal terrorism statute that requires a five-year mandatory minimum sentence for anyone convicted of arson on federal property. “I don’t think anybody would argue that arson took place . . . but to sentence this family as terrorists, we think that is absolutely egregious,” Roberts said. “These are just country folk, they’re not terrorists.”
Roberts, Curtis and others traveled to the Hammond home in recent weeks and began holding town hall meetings to try to build more local support for them — assuring residents that they were not there to “upend the town.” Despite encountering a lot of local skepticism, the men eventually found some allies — who started an organization called Harney County Committee of Safety and participated in Saturday’s rally.
But at the same time, the Bundy family had begun speaking out on behalf of the Hammonds. In early November, Ammon Bundy began posting updates on the case to his Facebook pages and website. “This last Wednesday I spent a good part of the day in the Hammond’s home. We spoke for hours. Several times, I found the Hammond’s in tears when they explained the injustices that has destroyed their lives,” Ammon Bundy wrote on Nov. 21. “They were hopeful that the American people were going to stand for them. And that, just maybe, they would be able to return to the life they once knew.”
January 4, 2016 in Mandatory minimum sentencing statutes, Offense Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)
Noting Alabama's notable struggles to secure various execution drugs
This lengthy local article, headlined "Court records show pharmacists refused death penalty drugs," reports on the various difficulties experienced by the Cotton State in an effort to get the chemical tools it needs to get its machinery of death running again. Here are some details:
At the height of Alabama’s search for lethal injection drugs, state officials were turned down by every pharmacy they contacted for help, according to court records filed Wednesday. State officials asked every licensed compounding pharmacist in Alabama to make batches of pentobarbital — once the primary drug used to kill inmates — and all refused. Attempts to buy the drug from four other states also failed, court documents state.
Those refusals could point to a rough road ahead for the death penalty, despite a U.S. Supreme Court ruling last year that cleared another drug, midazolam, for use in executions.... Alabama officials are trying to resume executions by lethal injection after a two-year hiatus caused by legal challenges and shortages of key execution drugs.
Tommy Arthur, condemned to death for the 1980s murder-for-hire of Muscle Shoals resident Troy Wicker, is one of several inmates who have challenged the state’s current approach to execution: injecting an inmate with midazolam to deaden pain, rocuronium to still the muscles and potassium chloride to stop the heart.
Midazolam has been used in botched executions in other states, including an Oklahoma execution in 2014 in which it took an inmate more than 30 minutes to die after the drugs were injected. Inmates say the use of midazolam is cruel and unusual, but the U.S. Supreme Court approved its use in an Oklahoma case last summer, seemingly clearing the way for executions in Alabama as well.
Lawyers for the state on Wednesday asked a federal court for a summary judgment that would end Arthur’s appeals and send him to the execution chamber. But Arthur’s lawyers are trying to flip the script in the case. Before the state adopted midazolam as a death penalty drug, Arthur filed a similar challenge against the use of pentobarbital, Alabama’s main execution drug before 2014. Now that he’s faced with execution by a new drug, Arthur wants to switch back to pentobarbital, a drug he claims is less cruel than midazolam.
Lawyers for the Alabama attorney general’s office say they can’t return to pentobarbital, because no one will sell the drug to the Department of Corrections. “These sources have either indicated they cannot obtain the ingredients for compounded pentobarbital, were not capable of compounding pentobarbital, or refused to be a supplier for the ADOC” lawyers for the attorney general’s office wrote in a court document.
The court documents, among hundreds of pages filed in Arthur’s case last week, shed light on Alabama’s often secretive attempts to obtain drugs for use in lethal injection. Several states have struggled to get their hands on drugs because a growing number of drug suppliers refuse to sell them, citing ethical objections or opposition to capital punishment.... [I]n the Arthur case ... new court documents show ... the state simply couldn’t find a supplier, despite contacting “nearly thirty” sources....
Arthur’s lawyers supplied the state with a list of 19 Alabama pharmacies they said were potential sources of pentobarbital. (All 19 names are blacked out in court documents.) But the state’s lawyers argue they’ve contacted all 19, plus others, and been turned down. “While Arthur alleged that as many as 10 states intend to use compounded pentobarbital for executions, the process of obtaining compounded pentobarbital is difficult to impossible for most,” the state’s lawyers wrote.
That might not matter now, given that Alabama has switched to midazolam, a drug that’s more readily available on the market. But pharmacists’ resistance to compounding execution drugs may soon turn out to be important in the search for midazolam as well...
Two major suppliers of midazolam — Illinois-based Akorn and New Jersey-based Becton-Dickinson — have declared in the past year that they’re opposed to selling the drug to Alabama for executions. While the state hasn’t identified its midazolam supplier, the state’s lawyers used “package inserts,” essentially instructions for use of a midazolam, from Akorn and Becton Dickinson in court filings this year. Both companies have denied selling the drug directly to Alabama prisons, and Akorn even asked the state to return any Akorn-made midazolam it had on hand for executions.
Individual pharmacists are also backing out of the lethal injection business. Last year, the International Academy of Compounding Pharmacists and the American Pharmacists Association both voted to discourage their members from supplying drugs for executions.
"Mr. Obama’s Trickle of Mercy"
The title of this post is the headline of this recent New York Times editorial. Here is an excerpt:
After seven years in office, Mr. Obama has issued a total of 184 commutations and 66 pardons — more grants, as the White House wasted no time in pointing out, than the last six presidents combined. But that’s a pitifully low bar, since Mr. Obama’s most recent predecessors all but abandoned the practice.
Mr. Obama knows this is a far deeper problem than can be solved by a few dozen grants. There are 9,000 applications for commutations that have not been acted on. The administration solicited applications like these in 2014 as part of a sweeping clemency initiative aimed at federal inmates who have served at least 10 years of a sentence that would be shorter today because the law has changed. To be eligible, prisoners must also have been convicted of a lowlevel, nonviolent offense, have no “significant” criminal history, and have behaved while behind bars.
At the time, the initiative seemed a big step toward reversing some of the gravest injustices of the nation’s decadeslong drug war, most obviously for the thousands of inmates still serving time for crack cocaine offenses that are punished far less harshly today.
Less than two years later, however, the vast majority of applications remain in limbo. A coalition of volunteer defense lawyers working alongside the Justice Department has struggled to get basic information on applicants. The department itself is hopelessly mired in bureaucratic tangles and institutional conflicts of interest.
By the administration’s own estimates, as many as 10,000 people could be released under the new criteria, former Attorney General Eric Holder Jr. told The Washington Post this month. So why is Mr. Obama continuing to make grants in the single or double digits?
One reason is the Justice Department; the clear solution is to run the process directly out of the White House. The president may also be wary of undercutting a package of bipartisan sentencing reforms making its way through Congress. But that legislation is far from a done deal, and may be on even shakier ground now that one of the leading Republican presidential candidates, Senator Ted Cruz, rejects reforms he previously supported.
Regardless of what Congress does, the presidential power of mercy is explicit in the Constitution, it is virtually unlimited, and presidents once used it far more freely to correct injustices. It is a “tool of public morality,” as one former federal prosecutor put it. If Mr. Obama truly wants to reinvigorate this moribund process, he has a year left to do it. The job requires only two things: a pen and the political will. There is no question that Mr. Obama has the pen.
A few recent related posts:
- Reviewing and reflecting on persistent problems with the federal clemency process
- Prez Obama commutes 95 federal prison sentences and grants 2 pardons
- An early set of takes on Prez Obama's clemency work to date
- "To forgive prisoners is divine — or as close as government gets"
- Highlighting how Chrismas clemency cheer brings a lump of coal for those left off Prez Obama's list
- "It’s Time for Obama to Go Big on Pardons"
January 3, 2016
Florida prosecutors honoring Army vet by threatening 120-years mandatory imprisonment for firing two shots in air
This local story from Jacksonville, headlined "Trial set to begin for Jacksonville man facing 120 years in prison for firing 2 shots," highlights why I find so many mandatory minimum sentencing statutes troublesome and why I worry about the extreme sentencing powers that these kinds of provisions often give to local, state and federal prosecutors. Here are the details of a Florida criminal justice story with many factors that likely undermines the public's faith in the soundness, sensibility and efficacy of modern criminal justice systems:
A Jacksonville man scheduled for trial this week faces a 120-year sentence if convicted, although no one was hurt during the six aggravated assaults he was charged with using a deadly weapon. Under Florida’s 10-20-Life law, Circuit Judge Jack Schemer would have no choice but to sentence 58-year-old Randal Ratledge to 20 years for each count. Jurors likely would not be aware of the mandated sentence.
Defense attorneys say Ratledge, a military veteran, does not belong in prison for the rest of his life and are critical of prosecutors for not waiving the requirement. Attorney Bill Sheppard said he’d be willing to plead Ratledge guilty if prosecutors would waive 10-20-Life and let Schemer impose any sentence that the judge thought was just. But the best offer he’s gotten is 18 years in prison, and that’s essentially a life sentence for someone Ratledge’s age, Sheppard said.
“The problem with our system now is judges have no discretion,” Sheppard said. “Prosecutors decide the sentence, not judges.”
The state’s 10-20-Life law requires that anyone convicted of a crime involving the firing of a gun gets at least 20 years in prison, with the only exception being someone who fired a warning shot when they have a legitimate reason to feel threatened. The law requires a 10-year prison sentence when someone uses a gun during the commission of a crime, but doesn’t fire the weapon.
According to police reports, Ratledge was talking with friends and neighbors near his Panther Ridge Court home in August 2012 when he went into the house and came back with a gun. He fired a shot in the air, then ran at the people outside screaming profanities while firing a second shot in their direction.
State attorney spokeswoman Jackelyn Barnard said prosecutors have been in discussions with defense attorneys over the case. “While we cannot get into specifics pretrial, the state has considered all options which includes the waiving of the 20-year minimum mandatory,” Barnard said. The Legislature has given prosecutors discretion to waive a minimum mandatory in appropriate cases, and State Attorney Angela Corey used this discretion when she concluded it is appropriate, Barnard said.
Attorney Bryan DeMaggio, who also is representing Ratledge, said he fired two shots in the air and not in the direction of any of his neighbors. DeMaggio and Sheppard plan to argue that he was “involuntarily intoxicated” because he had a bad reaction to an Ambien pill and doesn’t remember firing the gun. “He remembers taking the Ambien, and then he remembers being in shackles,” DeMaggio said.
Ratledge didn’t understand what he was doing and is not responsible for his actions, DeMaggio said. Ambien is usually used to help someone sleep, often to help people suffering from insomnia. Prosecutors have previously argued that the six people next door were in fear for their lives and traumatized by the experience.
The jury that hears the case is not supposed to know Ratledge faces 120 years. Jurors usually aren’t advised what sentence a defendant faces and are told their only responsibility is to determine whether the defendant is guilty. Sheppard and DeMaggio asked Schemer to make an exception in this case and allow jurors to know, but the judge denied their request.
This is the second time Ratledge will go on trial. He was previously convicted of the same charges, but that conviction was thrown out before sentencing when Circuit Judge James Daniel ruled that Ratledge’s Fifth Amendment right against self-incrimination was violated during the trial. Officer C.R. Deal, who questioned Ratledge the night he fired the shots, testified in front of the jury that Ratledge told him “he made a mistake and that he did not want to talk about the incident.” Daniel found that the comment unfairly prejudiced the jury since they knew Ratledge had invoked his right to remain silent, and exercising that right should not be held against a criminal defendant.
Jury selection is scheduled to begin Monday. Which could be bad timing for Ratledge. The Florida Legislature is considering a bill that would remove aggravated assault from the list of crimes that fall under 10-20-Life. The legislation unanimously passed criminal justice subcommittees in both the Florida House and Senate, but if it becomes law it will likely take until spring or summer.... DeMaggio said the legislation as it’s now written would not be retroactive, so if Ratledge is convicted this month his sentence would be unlikely to be overturned.
Sheppard said Ratledge is holding up well. He is out on bail but required to stay in his home most of the time. “He’s a soldier trained by the U.S. Army,” Sheppard said. “He was trained to deal with it.”
Among the aspects of this case that I find so frustrating is the way in which an extreme mandatory minimum sentencing statute is precluding the just and efficient resolution of a criminal matter seemingly because state prosecutors are unwilling to trust a judge to impose a fair and appropriate sentence on an Army veteran who, it seems, simply acted very badly when having a dispute with neighbors. Even if one thinks the defendant's "Ambien defense" is a bunch of BS, I am hard-pressed to understand why it would be appropriate for an Army vet to be facing decades in prison for foolishly firing some shots in the air in the midst of a summer squabble. And, critically, it seems that the defendant and his attorney have long been willing to resolve this case without the expense now of TWO criminal trials if prosecutors were just willing to let this case be resolved like most of us think cases ought to be resolved: with a neutral judge imposing a sentence after hearing advocacy from the prosecution and defense about what sentence would be fitting.
But for reasons that need not be explained in any way and that are not subject to any review, it seem a group of local prosecutors have decided that they want this Army vet to die in prison for his horrific acts of firing shots in the air one day in August 2012. And because of Florida's 10-20-Life mandatory minimum sentencing laws, these prosecutors have the exclusive power to demand that this vet essentially give up the rest of his life to resolve this case. Perhaps if prosecutors had to explain their charging and bargaining behavior in this case, I could better understand why they have taken such a seemingly ridiculously tough sentencing posture. But they do not, and that is my most fundamental gripe with mandatory minimum sentencing statutes: they not only give prosecutors extreme charging/bargaining/sentencing powers, but they enable prosecutors to exercise this power without being subject to any transparency, review or accountability. Grrr.
"Taking Another Look at Second-Look Sentencing"
The title of this post is the headline of this notable new article authored by Meghan Ryan and recently posted SSRN. Based on the abstract alone, I am a big fan of this paper because it appears to explore rigorously a sentencing topic which I believe merits much more attention in an era marked by a record-high numbers of LWOP and other lengthy prison sentences: whether, why and how a sentence imposed long ago can and should be reconsidered anew. Here is the abstract:
A historically unprecedented number of Americans are currently behind bars. Our high rate of incarceration, and the high bills that it generates for American taxpayers, has led to a number of proposals for sentencing reform. For example, bills were recently introduced in both the House and Senate that would roll back federal mandatory minimum sentences for certain drug offenders, and the Obama Administration has announced a plan to grant clemency to hundreds of non-violent drug offenders.
Perhaps the most revolutionary proposal, though, is one advanced by the drafters of the Model Penal Code, namely that judges be given the power to resentence offenders who have been serving long sentences on the ground that societal views about the seriousness of the offenses these individuals committed have changed. These evolved societal views, the drafters have asserted, might justify reducing the offenders’ sentences. The drafters of the Code have suggested that this position is based in part on retributivism — on what these particular defendants deserve as a result of committing these crimes.
But an offender’s desert ordinarily does not change as time progresses; it is societal views of desert that change. This raises a new question in criminal law about whether the original sentencer — the one imposing punishment at the time of trial — or a new sentencer — one imposing punishment over a decade after the offense was committed — is better positioned to determine the offender’s desert. The drafters of the Code have proffered that a new sentencer is best because it can be more representative of modern values. But the new sentencer does not represent the public against which the offense was committed. And the new sentencer may not be well positioned to assess the offender’s culpability or the harm he caused.
The new sentencer may be in a better position to know whether, as time has passed, the offender has been rehabilitated or whether he still poses a danger to society, but these factors are not based on the offender’s desert. While these other utilitarian considerations may certainly justify second-look sentencing, and while second-look sentencing may very well be a useful innovation, this new approach to sentencing overlooks the important desert-based restraints of limiting retributivism upon which the Code is based. Reliable assessments of an offender’s desert generally best lie with the decisionmakers in place around the time the crime was committed.