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March 12, 2016

Notable example of "prison industrial complex" using "phony-baloney numbers” to grow or protect its budget

Prison-profitsBill Otis here at Crime & Consequences flagged this interesting local article from Indiana headlined "Prison officials say lighter sentences aren't saving money." The article discusses a report issued by the Indiana Department of Correction asserting that "costs have more than tripled since it began diverting low-level offenders out of state prisons and back into their communities" as a result of a sentencing reform law enacted in 2014. Bill seems to think this article reveals that sentencing reforms do not deliver on promised cost savings, but a read of the full article (and not just the parts highlighted by Bill) reveals that some funny math is behind the latest cost claims now coming from the Indiana DOC:

Senate Judiciary Chairman Brent Steele, R-Bedford, calls it “ridiculous” and says the report contains “phony-baloney numbers.”

Lawmakers who pushed to lower penalties for drug-related crimes, such as drug possession and theft, vowed to return anticipated savings from prison costs to communities for treatment programs, community corrections and local lock-ups.  But, according to the department's report, there's no money to send. This despite a reduction in the prison population of more than 5,000 inmates – a 17 percent drop - since the law went into effect in July 2014....

Corrections officials say the new law will cost an additional $400,000 in the first six months of this year - for jail costs alone. That expense is expected to climb before the year’s end. That’s because the state spends about $35 a day to house a convicted, low-level offender in a county jail, according to the Correction Department report. The department claims it can house the same inmate in a prison for just under $10 a day.

Steele and other lawmakers who were deeply involved in crafting the sentencing reform law are irked by those claims. Two years ago, when Correction Department officials asked lawmakers for money, they reported it cost about $60 a day to house a state prisoner.

A year ago, prison officials said they needed an additional $51 million to build a new state prison. Steele and others rejected the proposal, predicting that the state would be able to close a prison – and save millions – as sentencing reform took hold. Steele said the department now is refusing to cooperate with the intent of the sentencing reform law.

Corrections officials don’t see it that way. The department's legislative director, Jon Ferguson, said the $10-a-day rate used in the report is a “marginal per diem” that doesn’t include the fixed, operational costs associated with running big prisons. And the number of those prison facilities the state operates hasn’t gone down since the sentencing reform law was put into place.

Promised savings from sentencing reform was key to getting it passed and to winning support from sheriffs, judges and local officials who feared it presented another unfunded mandate by the state. The Legislature set aside an initial $60 million for communities to offset initial costs. But lawmakers assured critics that the sentencing reform would eventually pay for itself.

House Judiciary Committee Chairman Greg Steuerwald, R-Avon, who helped craft the sentencing reform law with Steele, also questioned the validity of the Corrections Department's report. But, he noted, “We’re in a transition year.” “I expect to see much different numbers by next year," he said.

March 12, 2016 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

March 11, 2016

The latest SCOTUSblog analysis of the top contenders for SCOTUS nomination

Tom Goldstein has this lengthy new SCOTUSblog post titled "Handicapping the five potential nominees," which effectively explains his thinking about where we now stand in the SCOTUS sweepstakes a month after Justice Scalia's surprising death. My thinking is somewhat similar, and here is how his post starts and ends:

Multiple media reports say that there are only five potential nominees to fill the Scalia seat: Ketanji Brown Jackson, Merrick Garland, Jane Kelly, Sri Srinivasan, and Paul Watford.  In this post, I assume that is correct.

My best guess is that the choice will come down to whether the president concludes that Judge Brown Jackson’s service on a district court and on the Sentencing Commission give her sufficient objective qualifications for the job. If so, I believe he will pick her. If not, I think he will pick Judge Srinivasan, perhaps nominating Judge Brown Jackson at the same time to fill Judge Srinivasan’s seat on the D.C. Circuit....

In the end, I think the president either will or won’t discount Brown Jackson because she alone is not an appellate judge.  If he does not treat that as an important consideration, I think he will pick her.  For the reasons above, I give her the slight edge.  It’s also important to recognize that there is a bit of a legacy to the Srinivasan nomination to the D.C. Circuit.  His nomination is one of the few that involved objections within a core Democratic constituency. Labor groups in particular slowed his appointment because of his work at a D.C. corporate law firm.  Their concerns were unfounded, but they were also never completely resolved.

As I’ve written before, I’m reliably told by someone deeply involved in prior nominations that the president simply will not appoint a district judge. If that is correct, then I think the nominee will likely be Srinivasan.  If so, the administration could get some of the benefits of the Brown Jackson appointment by simultaneously nominating her to fill Srinivasan’s seat on the D.C. Circuit.  That would position her well for a later Supreme Court appointment.

I had not previously given thought to the fact that by nominating DC Circuit Judge Srinivasan to SCOTUS, Prez Obama could also start talking up nominating Judge Brown Jackson to fill his seat. This would, in a way, give Prez Obama a politically appealing interesting "two-fer," and I am now thinking that this is what we should expect to see emerging from the White House, probably sometime toward the middle of next week.

Prior related posts on new SCOTUS nominee possibilities:

March 11, 2016 in Who Sentences? | Permalink | Comments (12)

Pennsylvania struggling with what law applies to nearly 500 juve LWOPers needing resentencing after Montgomery

The local article, headlined "Juvenile lifers will get new sentences, but what law applies?," effectively reviews the many headaches that the SCOTUS rulings in Miller and Montgomery have created for folks in Pennsylvania. Here are excerpts:

In 1990, on Robert Holbrook's 16th birthday, he joined a group of men on a robbery that turned into a killing.  He received the only sentence Pennsylvania law allowed for murder: life without parole. In 2012, the U.S. Supreme Court decided that mandatory life-without-parole sentences were unconstitutional for those younger than 18.  This January, the court ruled that the ban must be applied retroactively, to people like Holbrook. Since then, Pennsylvania's high courts have vacated dozens of life sentences.

It is now clear that Holbrook — along with about 480 other juvenile lifers across the state, 300 of them from Philadelphia — will receive new sentencing hearings following the Supreme Court's ruling in Montgomery v. Louisiana. But a key question remains: What sentencing law applies?

"Nobody has any real answer," said State Sen. Stewart Greenleaf, a Montgomery County Republican who chairs the Judiciary Committee.  "We're in uncharted territory here," he said, "because we have a situation where the law these juveniles have been sentenced under has now been found to be unconstitutional, and the laws that we adopted as a legislature were adopted after they were sentenced originally" and do not apply to them.

The most straightforward resolution might be new legislation, but it's not so simple.  After the 2012 decision in Miller v. Alabama, Pennsylvania enacted new sentences for juvenile killers: 25 years to life for those younger than 15, and 35 to life for those 15 to 17.  But that law excluded anyone whose sentence was final before the Miller decision. Greenleaf said there's no changing that.  "The problem is, even if we pass something, it would be ex post facto," or retroactive, he said. "I don't think the legislature can do anything at this point, because it could be unconstitutional what we do."

Marsha Levick, chief counsel at the Juvenile Law Center, said no new law is needed.  Her solution: Resentence juveniles to 20 to 40 years in prison, the punishment for third-degree murder. "Because there is no constitutional sentencing statute that applies to these individuals, we would argue the court should apply the next-harshest sentence," she said. "That's all the court can do.  It can only apply a constitutional sentence."

But Pennsylvania courts have already gone a different route. About two dozen juvenile lifers — all sentenced, but still in the appeals process, when Miller came down - have received new sentences based on judges' discretion. The results have varied wildly.  Pennsylvania's Supreme Court, in the case of Qu'eed Batts — who at age 14 committed a gang-related murder — said the appropriate sentence for individuals such as him would carry a minimum number of years in prison and a maximum of life. So brothers Devon and Jovon Knox, who were convicted in a Pittsburgh carjacking and murder, received new sentences, of 35 years to life and 25 years to life respectively.

But in re-sentencing Ian Seagraves, who committed a brutal murder in Monroe County, a judge told him, "At this point in time, I have the option of life with parole or life without parole." The judge concluded that life without parole was still the appropriate sentence....

Pennsylvania Victim Advocate Jennifer Storm has been inundated with calls and emails from prosecutors and judges trying to figure out how to handle the cases and what sentencing laws apply. "I know some of these D.A.s are going to go back and ask for the highest minimum they can because there's a public safety question here," she said.

She said if courts are guided by the state's new sentencing law created after Miller, 189 offenders out of 480 would be immediately eligible for parole. The average time served among the 480 is 36 years, and the longest is 62 years.  "In some of these cases, you're going to see time served become the new minimum.  Obviously that needs to be very carefully negotiated with the D.A., the defender, and the surviving family members."...

Prosecutors, judges, and defense lawyers across the state, which the Pennsylvania Corrections Department says has more juvenile lifers than any other, have been tangling with this question and coming to disparate conclusions.  One Chester County judge converted the cases on his docket to "time served to life," triggering the immediate possibility of parole.

But Richard Long, executive director of the Pennsylvania District Attorneys Association, said there was some consensus among prosecutors: "We believe that the sentencing provision enacted by the legislature for those cases after June 2012 can serve as good guidance."

Bradley Bridge, who's working on the cases for the Defender Association of Philadelphia, said he had been meeting with prosecutors and judges in Philadelphia to set up a structure to resolve the cases, including what sentences could be imposed. To him, one thing is clear: Resentencing juveniles to life is not permissible. "They must be given new sentences that have both a minimum and a maximum," he said. "That is what is required under Pennsylvania law."...

Levick said, one outcome is all but certain: There will be even more legal appeals.

March 11, 2016 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

"Who Watches the Watchmen? Accountability in Federal Corporate Criminal Prosecution Agreements"

The title of this post is the title of this paper recently made available via SSRN and authored by Michael Patrick Wilt. Here is the abstract:

The Department of Justice entered into hundreds of deferred and non-prosecution agreements (DPAs and NPAs) with corporations over the last twenty years, and continues to increase the use of these agreements every year. However, there is no academic scholarship that explores whether the DOJ has grounded these criminal settlements in traditional criminal sentencing procedures. Specifically, do these agreements – which can often include hundreds of millions of dollars in penalties – follow the carefully considered principles of the U.S. Sentencing Guidelines for Organizations?

This article considers this question in light of the public choice theory of criminal procedure and concludes that the DOJ is not utilizing the Sentencing Guidelines in a manner consistent with basic notions of government accountability in the criminal justice system. The article uses data collected from over three hundred deferred and non-prosecution agreements and finds that only a small percentage include an analysis of a monetary penalty based on the Sentencing Guidelines. The government’s use of a non-traditional process to resolve corporate criminal cases should be concerning in the absence of an institutional check such as the Sentencing Guidelines. The article urges the DOJ to adopt standardized procedures for future criminal settlements, including a demonstration of the Sentencing Guidelines analysis typically found in plea agreements.

March 11, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

March 10, 2016

"Make No Mistake: Hillary Clinton is a Drug Warrior"

The title of this post is the headline of this notable commentary authored by Romain Bonilla that I just came across on the Marijuana Politics website.  Here are excerpts:

Hillary Clinton’s record on the War on Drugs sets her apart from other the other candidates — and not in a good way.  From her criminal justice agenda as First Lady to her foreign policies as Secretary of State, Hillary Clinton has proven herself to be one of the greatest drug warriors of our generation.  At a time when two-thirds of Americans support ending the War on Drugs, it’s crucial for her record on the issue to be brought to light.

Over the course of Bill Clinton’s presidency, Hillary Clinton publicly supported tough-on-crime criminal justice reforms that escalated and emboldened the War on Drugs. As First Lady, Hillary Clinton pushed for the largest crime bill in the history of the United States: the Violent Crime Control and Law Enforcement Act.  This 1994 crime bill called for 100,000 more police officers, provided billions of dollars of funding to prison construction, and ramped up the use of mandatory minimum sentences. This law became a signature accomplishment of Bill Clinton’s presidency....

Hillary Clinton’s involvement with the War on Drugs didn’t stop there.  As Secretary of State, Clinton waged the War on Drugs abroad. Under Hillary Clinton’s leadership, the State Department fueled the Mexican Drug War by funding efforts to combat drug trafficking.  Through its Mérida Initiative, Clinton’s State Department hired American defense contractors to take part in the conflict and sold billions worth of weapons to Mexico — leading it to become one of the world’s top purchasers of U.S. military arms and equipment.  Over the course of Hillary Clinton’s tenure as Secretary of State, the Mexican Drug War spiraled into chaos, killing over 160,000 people and displacing millions of others.

Worse still: As Clinton’s State Department gave billions in drug war aid to Mexico, it turned a blind eye to the widespread human rights abuses perpetrated by the country’s government. Even as the United Nations acknowledged that Mexican authorities were involved in kidnappings and disappearances, Clinton’s State Department continued to support the offensive.

Now aiming for the presidency, in the Democratic race against Bernie Sanders, Hillary Clinton describes herself as a progressive leader who will end mass incarceration. As she campaigns for the Democratic nomination, Clinton appears to have “evolved” on issues of drug policy, and gives lip-service to some of the things drug policy reformers have been saying for years.  In a January debate, for instance, she stressed the importance of treating addiction as a health issue rather than a crime, hinting at an understanding of the failures of the drug war.

While Hillary Clinton is willing to speak vaguely against the War on Drugs, she refuses to embrace meaningful reforms to current drug policies.  While most Americans agree that marijuana should be legal, Clinton supports rescheduling it to Schedule II, the same category as cocaine and methamphetamine.  This proposal would do little to end the War on Drugs, but would facilitate research on medical marijuana and allow pharmaceutical companies to sell cannabinoid drugs.

Hillary Clinton’s drug policies are completely in line with those of the wealthy special interests that fund her campaign, like the private prison lobby and Big Pharma.  Under Clinton’s marijuana policy, users would still be prosecuted for mere possession (as is the case for cocaine and methamphetamine users), but drug companies would get a free pass to profit off of marijuana’s medicinal value.

This position on marijuana policy is certainly not enough to redeem Clinton’s record of tough-on-crime legislation and drug warmongering abroad. Though she didn’t declare it, Hillary Clinton has been a champion of the War on Drugs.  Her policies have sacrificed millions of lives to the failed ideal of a drug-free America and her contribution to mass incarceration haunts this nation to this day.  Viewed as a whole, Hillary Clinton’s record reveals her to be a staunch drug warrior — and if she won’t push for meaningful reforms now, it’s unlikely she’ll ever get around to it.

March 10, 2016 in Campaign 2016 and sentencing issues, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (7)

Are Senators Mike Lee and Ted Cruz now back on the same page with respect to sentencing reform?

The question in the title of this post is prompted by this GOP Prez race news today via Politico: "Cruz to land first Senate endorsement: Mike Lee."  Beyond the obvious political significance of this (e.g., another body blow to Senator Rubio), I cannot resist thinking about this in federal sentencing reform terms because Senator Mike Lee has been one of the most vocal GOP advocates for federal sentencing reform. 

Of course, as noted in this prior post from last year, Senator Ted Cruz was himself a vocal sentencing reform supported when only drug sentencing reform was the focal point on Senate reform effort.  But, as this press article from a few months ago highlights, the two had a vocal and visible parting of ways when sentencing reform started including violent offenders.  I doubt sentencing reform was the first concern when Senator Lee was thinking about who to endorse, but this interesting history still has me pondering the question in the title of this post.

March 10, 2016 in Campaign 2016 and sentencing issues, Who Sentences? | Permalink | Comments (0)

Rep Lamar Smith makes case against federal sentencing reform by questioning success of Texas reforms

One recurring theme of many advocates for federal sentencing reform is that state-level reforms, lead notably by Texas, have been successful at reducing incarceration levels without seeing an increase in crime. But at the end of this new Washington Times commentary, headlined "How weak prison terms endanger the innocent: Mandatory minimums keep the guilty behind bars to pay their debt to society," US House Representative Lamar Smith from Texas questions whether Texas reforms have truly been effective. Here are some notable excerpts from the piece:

Congress should be wary of reducing federal prison sentences. Unfortunately, much of the discussion on sentencing laws has focused on the criminals. What about the victims of their crimes? What about the dangers of putting these offenders back out on the streets where many prey again on law-abiding citizens?

The lives and property of innocent Americans are at stake.  Past experience should persuade us not to weaken penalties, which could lead to thousands of dangerous criminals being released into our communities....

Supporters of lower prison sentences also argue that judges need more discretion.  They say that a one-size-fits-all penalty does not allow for consideration of mitigating factors, which might be necessary to determine a fair sentence.

But prior experience with judicial discretion in sentencing counters this claim.  It is exactly the problem of too much discretion in the hands of activist judges that fueled the decades-long crime wave that preceded mandatory minimum sentences.  Furthermore, judicial discretion led to widespread discrepancies in sentences, even when the circumstances were similar.

The minimum sentencing structure ensures that judges apply a uniform penalty based on the crime, not on the judge’s subjective opinion.  Criminals receive equal punishment for equal crimes.  And the removal of hardened criminals from our streets for longer periods of time helps make our neighborhoods safer....

In my home state of Texas, new policies sought to reduce incarceration time and focus resources on treatment and post-release supervision.  Yet almost one-quarter of inmates released have been rearrested and sent back to prison within three years.  Early release programs don’t appear to be working.

Mandatory minimums help keep these individuals behind bars where they belong.  That’s one explanation for why crime rates remain down.  The purpose of criminal law is to punish bad behavior, deter criminal acts and protect the American people.  Releasing prisoners too soon could condemn many Americans to becoming victims of violence.  This can be avoided if prisoners are not released before their sentences have been served.

March 10, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Notable headlines concerning diverse death penalty developments nationwide

My Google News feed this morning has an array of notable headlines concerning an array of notable death penalty reform and litigation developments around the country in recent days.  Here are some links, moving from states in the east to the west:

Delaware: "ACLU, others join in Delaware death penalty arguments"

Florida: "Florida death penalty officially revamped after Supreme Court struck it down"

Kentucky: "Bill To Abolish Kentucky Death Penalty Fails In House Committee"

Texas: "Texas executes Houston death row inmate for 1997 shooting rampage that killed 5 people including his ex-wife"

Utah: "In Deep-Red Utah, Lawmakers May Repeal the Death Penalty"

Nevada: "Group builds a case against the death penalty"

Washington: "Prosecutors beg, but legislators fail to act on death penalty"

Among this bunch, I find the final story here about developments in Washington state especially intriguing.  And, of course, I welcome input from readers as to which of these stories they think are most notable.

March 10, 2016 in Death Penalty Reforms | Permalink | Comments (9)

March 9, 2016

"Incarcerated people voted in primaries in Vermont, Puerto Rico, and Maine. Why can’t they vote anywhere else?"

The question in the title of this post is the sub-headline of this notable new piece by Vann Newkirk at The Atlantic. The piece's main headline is just "Polls for Prisons," and here are excerpts:

Why can’t most people in prison vote?  Although states display considerable range of policies on the issue of how — if at all — people can vote after being released from institutions or onto parole or probation, the general idea is that the ballot box stops where the bars begin.  But on Tuesday, 6,195 inmates voted in Puerto Rico’s Republican primary — where they comprised one-sixth of the voters who cast their ballots. Their example challenges many of the premises of felon disenfranchisement, and suggests that fears of what would happen if it were repealed are overblown.

The logic behind felony disenfranchisement within prisons and without is so deeply rooted in American ideas of crime and punishment it can seem tautological: Of course prisoners can’t vote; they’re prisoners! However, recent primary elections in Vermont, Maine, and Puerto Rico challenge that common knowledge and provide a glimpse of what the country’s voting process might look like if the franchise was extended to those serving time.

The origins of disenfranchisement as a vehicle of American punishment are likely traceable to some form of the classical notion of a “civil death.” For the Greeks, the punishment of civil death was akin to capital punishment — a complete extinguishing of the civil rights that Greeks believed constituted personhood, including suffrage, landownership, and the right to file lawsuits. English common law borrowed the Greek concept, and civil death was long viewed as a suitable punishment for felony offenses.

But civil death as a formal punishment in the American colonies differed from the English system on which it was based, and from the punishments that would later evolve. Civil death was initially only adopted in America for a very small number of felonies, the most common of which were violations directly connected to voting — for example, fraud or bribery.  This paralleled both an expansion of crimes considered felonies and a decoupling of felony punishment from capital punishment. The use of long-term imprisonment, instead of corporal or capital punishment, only came about in fits and starts.

Jeff Manza and Christopher Uggen’s Locked Out: Felon Disenfranchisement and American Democracy details how early incarceration’s link to indebtedness and poverty dovetailed with widespread property and tax suffrage requirements to create a de facto system of disenfranchisement.  Paupers or debtors were often denied the vote through their lack of property or their inability to pay poll taxes, and both were likely to face prison time for felonies, especially if they could not afford fines. Both incarceration and civil death were largely threats faced only by the lower classes, a correlation that turned causal as the prison system was codified and American mass incarceration was born....

A key legal factor in defense of civil death has been the idea that felons have broken the social contract and have forfeited their rights in participating in it. Thus, civil death is considered a reflexive defense of the social contract and a fitting punishment.  However, that reasoning falls doubly short.  Even death-row inmates retain a broad array of constitutional rights, including access to due process, the right to sue, and the right to appeal.  Why is the right to vote excluded?  Also, the social contract may not need civil death to defend it.  The social fabric of Vermont and Maine, where felons have and will vote in general elections, can hardly be considered to have been irreparably damaged by their participation.

Perhaps it’s not coincidence that Vermont and Maine are the two whitest states in the country.  They’re comparatively immune to the racialization of crime policy and rhetoric that dominates conversations elsewhere.  In states where the social contract has always been interpreted through a lens of racial tension and where criminalization and race have often been intertwined, it may be harder to challenge policies that have been accepted as deeply as self-evident truths.  Or, in plainer language, some people are less enthusiastic about the idea of minority inmates having meaningful participation in elections than they might be if most inmates were white.

International comparative analyses simply reinforce the lessons of Vermont, Maine, and Puerto Rico.  Prisoners in dozens of countries, including Canada, Germany, South Africa, and Israel, are allowed to vote in all elections — without significant problems.

The sky hasn’t fallen in Vermont or Maine either.  Inmates in Puerto Rico may be playing a serious role in advocating for national assistance for the island’s troubles, voting at a time when it has become more difficult for everyone else.  Perhaps the idea of prisoners as stable voting populations, or prisons as reliable polling centers, could provide an example for states on the mainland struggling with declining turnout.  At the very least, Vermont, Maine, and Puerto Rico should alleviate some fears about a possible post-disenfranchisement future in the United States.  The death of civil death doesn’t kill democracy.

As long time readers may know, I have long believed as many people as possible should be enfranchised in a democracy, and my basic thinking on this front was effectively explained in this Big Think piece years ago headlined "Let Prisoners Vote":

Though Berman agrees that disenfranchisement laws disproportionately affect racial minorities, his argument is founded on a more fundamental belief.  "The right to participate in the political process flows from being subject to the laws, rules and regulations that political process sets forth," says Berman, "Prisoners are in some sense being subjected to those rules and regulations in a more severe way than those who vote — in some ways they're even more affected by our legal system — therefore they should have the right to fully partake in the political process."

Berman's advocacy of inmate enfranchisement is also driven by his instinct that historical expansions of the franchise — whether to African-American men in 1870 or to women in 1920 — have in hindsight never been perceived as a mistake. Generally, he feels that expanding the franchise is beneficial to democracy. If Berman had his way, voting rights would also be extended to children as young as 10 years old. "My nine-year-old strikes me as a lot more political knowledgeable than a lot of adults I deal with on a regular basis," he says.

March 9, 2016 in Collateral consequences, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (5)

US Sentencing Commission released big new and timely report on "Recidivism Among Federal Offenders"

I just received via e-mail an alert concerning an important new publication by the US Sentencing Commission, and here is the full text of the email with links from the original:

Today, the United States Sentencing Commission issued a report on the recidivism of federal offenders. The study is groundbreaking in both its breadth—studying all 25,431 U.S. citizen federal offenders released in 2005, and in its duration—following the releasees over an eight year period. News release.

The Commission found that nearly half (49.3%) of offenders released from prison or placed on a term of probation in 2005 were rearrested within eight years for either a new crime or for some other violation of the technical conditions of their probation or release. Summary and key findings.  

The Commission also found that:

  • Most offenders who recidivated did so within the first two years of the follow up period;
  • Assault was the most common serious rearrest offense but most rearrest offenses were non-violent in nature;
  • An offender’s criminal history as calculated under the federal sentencing guidelines was closely correlated with recidivism rates (rearrest rates ranged from 34% for offenders in the lowest criminal history category to 80% for offenders in the highest criminal history category);
  • An offender’s age at the time of release was also closely correlated with recidivism (rearrest rates ranged from 67% for offenders younger than 21 to 16% for offenders older than 60).

Download the full report.

I am going to need some time to really dig into this document to assess what it could and should mean for on-going debates over federal sentencing reforms. But even before I do a deep dive, I am eager to robustly compliment the Commission for producing such a data-rich and timely report for the benefit of everyone thinking about the current state and future direction of the federal sentencing system.

March 9, 2016 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Can readers help discount my fears that sexism and racism account, at least in some small part, for why conservatives are belittling the intellect of Judge Ketanji Brown Jackson?

JudgeKJacksonNewProfileThe question in the title of this post is my genuine and sincere effort to try to feel better about comments over at Crime & Consequences and other commentary from conservative pundits about my favorite SCOTUS short-lister, US District Judge Ketanji Brown Jackson.  For the record, as I have previously noted, my affinity for Judge Brown Jackson is surely influenced by her prior service as a federal public defender and as a Vice-Chair of the US Sentencing Commission (during which time I had the opportunity to once dine with her at a sentencing conference).  That personal bias notwithstanding, everything I can find "on paper" about Judge Brown Jackson suggests to me she is an intellectual super-star, not an "intellectual lightweight" or a dim light as she has been described by some conservative commentators.

The "on paper" credentials to which I refer are detailed here, and here is my own brief summary:  Judge Brown Jackson graduated magna cum laude from Harvard College and cum laude (and was on the law review) at Harvard Law School.  She clerked for two highly regarded federal judges at the district (Judge Saris) and circuit (Judge Selya) courts in Boston and then for Supreme Court Justice Breyer. She thereafter worked in prominent and challenging positions in public practice (as a federal public defender), in private practice (at the firm Morrison & Foerster) and in the most important judicial-branch government agency (as Vice-Chair of USSC).  She has now been a federal district judge for three years after a unanimous confirmation vote at which, quite notably, she was supported by the current GOP Speaker of the House of Representatives who stated expressly that his "praise for Ketanji's intellect, for her character, for her integrity, it is unequivocal."

Now, given that Judge Brown Jackson is only 45 years old and has been a district judge for just three years, I can certainly see an objective basis for asserting that she is too young and/or does not yet have enough judicial experience to be an ideal SCOTUS nominee.  (That said, she is older, has been a federal judge twice as long, and has a more impressive paper record than Clarence Thomas circa 1991 when Prez GHW Bush nominated him to replace Justice Thurgood Marshall.)  But give her seemingly stellar paper record, I have a very hard time finding an objective basis for labelling Judge Brown Jackson as an "intellectual lightweight" or a dim light.  And because she is the only woman of color on the various "SCOTUS short lists" that have made the rounds, I also have a very hard time not jumping to the (misguided?) conclusion that sexism and racism account, at least in some small part, for why conservatives are now belittling the intellect of Judge Ketanji Brown Jackson.

Ergo the question in the title of this post: I would really like to hear (anonymously if needed) from folks who know more about Judge Brown Jackson's talents, preferably as a result of working directly with her professionally in the last few decades.  Ed Whelan in this recent National Review post stated that "any reporter would quickly discover [that Judge Brown Jackson] is not regarded by her colleagues or the bar as among the leading lights of the federal district court in D.C."  Though I am not a reporter, I am eager to try to find out ASAP some bases for this statement.  Indeed, as suggested by the title of this post, I am especially eager to have the help of readers to discount my immediate concerns that sexism and racism account, at least in some small part, for why conservatives are seemingly so quick to belittle the intellect of Judge Ketanji Brown Jackson.

Prior related posts on new SCOTUS nominee possibilities:

March 9, 2016 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (34)

"Criminal Injustice: A Cost Analysis of Wrongful Convictions, Errors, and Failed Prosecutions in California's Criminal Justice System"

The title of this post is the title of this new report recently published by The Opportunity Institute.  Here is the report's executive summary:

Criminal (In)justice examines 692 individuals who were prosecuted and convicted in California state or federal courts, only to have their convictions dismissed because the government prosecuted the wrong person, because the evidence was lacking, or because the police, defense, prosecutors, or court erred to such a degree that the conviction could not be sustained.  The 692 individuals subjected to these failed prosecutions spent a total of 2,346 years in custody, and their prosecutions, appeals, incarceration, and lawsuits cost California taxpayers an estimated $282 million when adjusted for inflation.  Eighty-five of these cases arose from a large group exoneration — the Rampart police corruption scandal — and are discussed separately in a later section of this report.

The remaining 607 convictions, all of which were reversed between 1989 and 2012, illuminate a dark corner in California’s criminal justice system.  These 607 individuals spent a total of 2,186 years in custody.  They burdened the system with 483 jury trials, 26 mistrials, 16 hung juries, 168 plea bargains, and over 700 appeals and habeas petitions. Many of the individuals subjected to these flawed prosecutions filed lawsuits and received settlements as a result of the error, adding to the taxpayer cost.  Altogether, we estimate that these 607 faulty convictions cost taxpayers $221 million for prosecution, incarceration and settlement, adjusted for inflation. This estimate is only a window onto the landscape of possible costs, as it does not include the often unknowable costs suffered by those subjected to these prosecutions.

The sections below provide a review of these 607 cases and offer some recommendations for change.

The first section, Characteristics of Injustice, paints a collective picture of the cases in our sample. Compared to California’s average, the individuals subjected to these errors were disproportionately prosecuted for violent crimes, especially homicide. This may be because prosecutions for violent crime are more likely to generate error than prosecutions for other crimes, though that question was beyond the scope of our research. Whatever the reason, failed prosecutions for violent crime account for a greater percentage of the wasted $221 million than failed prosecutions for other crimes. Indeed, flawed homicide convictions alone account for 52% of the $221 million, in part because these homicide cases took an average of 11 years to resolve and generated more lawsuits and civil settlements.

The second section, Causes of Injustice, catalogs the multitude of errors, dividing them into eight categories: eyewitness identification errors, prosecutorial misconduct, ineffective defense counsel, judicial mistake during trial, Fourth Amendment search and seizure violations, inadequate police practices before trial, unreliable or untruthful official testimony (officer or informant), and failure of prosecutorial discretion.

Prosecutorial misconduct and eyewitness identification were the most common errors in the flawed homicide prosecutions. When broken down by type of error, prosecutorial misconduct accounted for more of the cost in our sample than any other type of error.  By contrast, the most common errors in our sample were Fourth Amendment search and seizure errors, and judicial mistake.  These errors were resolved relatively quickly, however, and resulted in relatively little cost.

The third section, Costs of Injustice, walks through the cost analysis.  It documents the many hurdles raised by the California Victims Compensation and Government Claims Board.  This section also identifies many of the additional costs not captured by our methodology, including costs arising from wrongful misdemeanor convictions, flawed juvenile convictions, and cases that resolved prior to conviction, among others.  These unaccounted costs highlight the fact that this report documents only a portion of the vast unknown waste in California’s criminal justice system — but it is at least a beginning.

Criminal (In)justice ends with a section on Next Steps and Recommendations.  The problems presented in this report are undoubtedly complex, and each of them individually could be subject to its own investigation.  This report does not attempt to comprehensively define the universe of best practices that will solve all of the issues raised.  Instead, it identifies promising avenues for reform and highlights practices and jurisdictions that are leading the way. In particular, in 2006 the California Commission on the Fair Administration of Justice issued a report containing detailed recommendations regarding eyewitness identification, false confessions, informant testimony, problems with scientific evidence, and accountability for prosecutors and defense attorneys.  The recommendations represent the unanimous views of a diverse group of prosecutors, defense attorneys, judges, law enforcement, and other stakeholders.  To date, however, many of the substantive reforms have not been adopted, compromising public safety and leaving our criminal justice system at risk of endlessly repeating the errors catalogued here. (The report can be found at www.ccfaj.org.)

March 9, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (6)

March 8, 2016

Quick (inside-the-Beltway) reflections on the latest odds of those inside-the-Beltway getting federal sentencing reform done in 2016

As I briefly mentioned in a prior post, yesterday and today I have been attending and participating in the Alternative Sentencing Key-Stakeholder Summit (ASKS) taking place at the Georgetown University Law Center.  In addition to being greatly impressed by all the speakers and attendees, I have particularly benefitted from hearing this afternoon directly from Senator Charles Grassley and other key players involved in federal sentencing reforms efforts.  After hearing these folks discuss their work and the possibility of enactment of federal sentencing reform this year, I wanted to share some (too quick) reflections in the form of good news and bad news:

Good News regarding prospects for reforms making it through Congress:  Senator Grassley is clearly interested in and now seems quite committed to getting some form of federal sentencing reform through Congress this year.  He stated that work is afoot to modify his Sentencing Reform and Corrections Act to respond to concerns expressed by Senators Tom Cotton and Ted Cruz and others. This Reuters report on Senator Grassley's short speech provides the details, and here are the basics:

U.S. Senate Judiciary Committee Chairman Charles Grassley said on Tuesday that amendments to a bill to lower sentences for certain non-violent drug offenders are close to being finished. Grassley said the amendments, which go further to ensure violent offenders are not released, will build more support for the bill among Republican leadership in the Senate, which will decide whether to bring the bill up for a vote.

"We are very close to making some changes in this bill so we can get it brought before the United States Senate," Grassley said.... Grassley called Cotton's concerns "legitimate and reasonable" when speaking at Georgetown University Law School on Tuesday.

Though he did not provide specifics on the amendments, Grassley did say his team of legislators may have to drop parts of the bill that would have allowed offenders caught with firearms in their possession to have their sentences lowered. "We may have to jettison some changes in the firearm offenses and we may be able to do a better job to make sure that no one with a serious history of violence can get any relief under the bill," Grassley said....

"I'm confident that with the changes that we're making in the bill that we'll get even more support for our bill," Grassley said.  "And with more support, I'm confident that we will be able to go to the leaders in the Senate and persuade them that this bill is exactly what the American people need to see happen in the United States Senate."

As this last quote hints, Senator Grassley also spoke about all the complaints he receives back in Iowa and elsewhere about leaders in DC spending all their time fighting over politics and not getting anything actually done. Senator Grassley's comments have me now thinking that he and other GOP members of the Senate are likely to stress bipartisan work on sentencing reform when attacked by Democrats and others for "not doing anything" in response to the coming SCOTUS nomination or on other priorities. And work on sentencing reform will not seem all that meaningful if a bill does not come to the floor of the Senate at some point.

Bad News regarding prospects for reforms making it through Congress:  Though not mentioned by Senator Grassley, getting a bill to the Senate floor and passed with a majority vote is only half the battle, of course.  The House of Represenatives also needs to pass a parallel bill, and there are continuing reasons to fear that the House will not move forward on sentencing reform bills unless and until mens rea reform is a part of the equation.  I am not sure concerns about mens rea reforms will alone scuttle reforms in Congress, but it already seems to have slowed the momentum for reform in various ways.  And every day that goes by without the legislative process moving forward tangibly is yet another day lost before the congressional election season gets into full swing when members of Congress start focusing more on November voting dynamics rather than whether they get anything done on a complicated policy issue that involves lots of compromises and intricacies.

Speaking of compromises and intricacies (as well as the coming election season), there may end up being some significant voices on the left that jump off the reform train after Senator Grassley makes his already modest Sentencing Reform and Corrections Act even more modest.  The original SRCA was so modest that some significant advocates for reform, including elected officials and policy groups, have already express serious concern that it does not mearly go far enough.  We likely will hear more of these complaints after we see the modified SRCA, and that in turn may lead advocates on both sides of the aisle to be content to wait and hope that their preferred candidates win in November and then to try again in 2017.  

A few prior related posts:

March 8, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

Judge John Gleeson invents and issues a "federal certificate of rehabilitation"

Thanks to this post at the Collateral Consequences Resource Center, I see that US District Judge John Gleeson has issued yet another remarkable opinion concerning the collateral consequences of a federal criminal conviction and what he thinks he can do as a federal judge in response.  Here is how the 33-page opinion in  Doe v. US, No. 15-MC-1174 (EDNY March 7, 2016)(available here) gets started:

On June 23, 2015, Jane Doe moved to expunge a now thirteen-year-old fraud conviction due to its adverse impact on her ability to work.  The conviction has proven troublesome for Doe because it appears in the government’s databases and in the New York City Professional Discipline Summaries.  In other words, the conviction is visible to a prospective employer both as the result of a criminal background check and upon examination of her nursing license.  Numerous employers have denied Doe a job because of her conviction.  On more than one occasion, she was hired by a nursing agency only to have her offer revoked after the employer learned of her record. Despite these obstacles, Doe has found work at a few nursing companies, and she currently runs her own business as a house cleaner.  Doe’s two children help to support her, and during periods of unemployment, her parents have also assisted her financially.

The government opposes Doe’s motion, contending that federal district courts do not have subject matter jurisdiction to expunge a conviction on equitable grounds.  The Second Circuit has ruled, however, that “[t]he application of ancillary jurisdiction in [expungement] case[s] is proper.” U.S. v. Schnitzer, 567 F.2d 536, 538 (1977), cert. denied, 435 U.S. 907 (1978).  Accordingly, I have weighed the equities in this case, which are grounded in my understanding of Doe’s criminal conviction and sentence; I was the judge who presided over her jury trial and imposed punishment.

I conclude that while Doe has struggled considerably as a result of her conviction, her situation does not amount to the “extreme circumstances” that merit expungement.  See id. at 539.  That said, I had no intention to sentence her to the unending hardship she has endured in the job market.  I have reviewed her case in painstaking detail, and I can certify that Doe has been rehabilitated.  Her conviction makes her no different than any other nursing applicant.  In the 12 years since she reentered society after serving her prison sentence, she has not been convicted of any other wrongdoing.  She has worked diligently to obtain stable employment, albeit with only intermittent success. Accordingly, I am issuing Doe a federal certificate of rehabilitation.  As explained below, this court-issued relief aligns with efforts the Justice Department, the President, and Congress are already undertaking to help people in Doe’s position shed the burden imposed by a record of conviction and move forward with their lives.

March 8, 2016 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (8)

March 7, 2016

"Did Nancy Reagan's War on Drugs Backfire?"

The question in the title of this post is the headline of this intriguing new NBC News commentary by Tony Dokoupil. For reasons I will explain after an excerpt, I think this question is an unfair variation on the "When did you stop beating your wife?" question. But first, here are some excerpts:

It's one of the risks of a long and busy life: the threat that society will change its mind about your most important work. That happened to Nancy Reagan, the former first lady who died on Sunday at 94.  President Ronald Reagan's wife and closest adviser defined the drug panic of the 1980s, coining the phrase "Just Say No" and supporting her husband's rampaging war on drugs.  She often singled out marijuana as a special scourge, accusing dealers of taking "the dream from every child's heart."

But such positions have since slipped into disrepute in recent years, rejected even by many fellow Republicans. Nearly half the country has tried marijuana, meanwhile, and legal sales are booming in four states and counting.  Criminal justice reform, including reducing sentences for nonviolent drug convictions, has been a point of discussion on both sides of the 2016 presidential campaign.

Nancy Reagan never publicly recanted or so much as commented on her starring role in the drug war.  But with a look back at the origins of her and her husband's hardline policies, it's possible to trace the arc of one of America's most famous failures.

Ronald Reagan, eyeing a challenge to President Jimmy Carter, seemed to know that an attack on marijuana would tap into a growing displeasure with wayward teens, slack productivity and a society of apathetic Carter voters.  So in a major radio address in 1979 Reagan revealed what "science now knows," including the dubious "scientific facts" that smoking dope leads to cancer, sterility and "irreversible effects on the mental processes."  Never mind that the National Academy of Sciences had endorsed the idea of decriminalizing marijuana, finding "no convincing evidence" of its harmful effects.

The drug became an enemy of promise, the explanation for everything.  Why is your teenager refusing to cut the lawn?  Marijuana.  Why is your industry falling behind Japan's?  Marijuana.  Why do you have to lock your door at night? Hard drugs — which start with marijuana.

Nancy Reagan emerged as the most effective carrier of her husband's message.  She focused on almost nothing else during his presidency, beginning with an informal press conference aboard Air Force One in early 1982.  She told the press that drugs had become an epidemic.  Then she made her first stop in a cross-country swing, an open meeting of Straight Inc., a youth rehabilitation program in Florida....

Later on the same tour, during a visit to an elementary school in Oakland, California, she coined her famous phrase. An elementary school student asked her what he should do if anyone ever offered him pot. "Just say no!" she said.

Experts pounced.  The slogan was one of the most unsophisticated anti-drug messages of all time.  It suggested that drugs are evil, but you can quit them at any time.  Yet the phrase served a purpose.  It created what Nancy proudly called "an atmosphere of intolerance."  Other politicians compared drug dealers to vampires, murderers and traitors. And people began to associate pot with waste and dropouts....

In June 1982, Ronald Reagan appeared in the White House garden to officially declare a war on drugs.  "We're taking down the surrender flag that has flown over so many drug efforts; we're running up a battle flag.  We can fight the drug problem, and we can win. And that is exactly what we intend to do," he said.  Marijuana was the only drug to merit specific mention.

Regular readers surely know that I think demonizing marijuana was a mistake as part of the Reagan era "war on drugs." But I actually think Nancy Reagan's "just say no" voice in all this was not nearly as pernicious as this commentary is trying to suggest. Indeed, though an unsophisticated anti-drug message, the "just say no" mantra, in my view, continues to highlight and emphasize the fundamental individual reality at the base of many drug problems even though illegal drug use and abuse includes a lot more complicated issues.

The real problems resulting from the failed American war on drugs, in my view, did not at all emerge from Nancy Reagan urging individuals to just say no to drugs; the real problems flowed from waging the drug war with massive investments in big-government criminal justice system that too heavily invested in cops and cells rather than classrooms and counseling.

March 7, 2016 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (6)

Notable split Sixth Circuit ruling on (suspect) limits of retroactive guideline reductions

A split Sixth Circuit panel handed down today an interesting little sentencing opinion in US v. Taylor, No. 15-5930 (6th Cir. March 7, 2016) (available here). Actually, the majority opinion is, according to the dissent, more frustrating than interesting beause that opinion held that a district court, when reducing a sentence based on the retroactive reduced drug guideline, lacked any added discretion "to impose a new below-guidelines sentence based on any factor but a departure for substantial assistance."  

Notably, federal prosecutors in this Taylor case agreed with the defendant (and the dissent) that the district court should have authority to take into account during sentence modification additional mitigating factors.  But the district court concluded that it lacked this authority, and the majority opinion on Taylor affirmed this conclusion. Judge Merritt expressed his frustration with this view in a short dissent that includes these points:

The mathematical percentage estimated for “substantial assistance” almost five years ago at the original sentencing is not a scientific fact, just a guess or speculation, and a new reduction upon resentencing that is “comparably less” (using the Guideline language) does not forbid a new sentence which takes into account such intangible factors as defendant’s additional assistance after the original sentence, her rehabilitation, as well as collateral damage to her family and other similar factors.  It does not forbid a reassessment of what has happened in the last five years.  Both the prosecutor and the defendant agreed that the sentence should not be limited to a nineteen percent reduction but have agreed to a thirty-three percent reduction, and there is no indication that Judge Jordan in the court below would not agree that this would be a more just sentence.  He thought only that the law did not give him the authority to impose the lower sentence....

I do not see why we must continue to take away from the sentencing judge the authority to use his or her best judgment in determining the sentence.  For these reasons and also for the policy reasons stated by Justice Stevens in his dissenting opinion in Dillon v. United States, 130 S. Ct. 2683, 2694-2705 (2010), I would remand to the district court for resentencing with the instruction that the district court is not bound by the nineteen percent reduction used years ago.  Times change.  The law has changed.  Our culture is changing its views about how long we should put people behind bars.  There is no good reason I can see that we should not allow the district judge to use his best judgment here and err on the side of mercy while at the same time reducing the government’s costs of incarceration.

March 7, 2016 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Is the Supreme Court fight already starting to "doom" federal statutory sentencing reform?

The question in the title of this post is my first reaction to this commentary piece authored by Inimai Chettiar from the Brennan Center for Justice which carries the headline "Don't Lock Up Prison Reform: Congress' fight over the Supreme Court shouldn't doom desperately needed sentencing reform." Here are excerpts (which includes something of a status report from Congress):

With a heated partisan battle over the future of the Supreme Court entering a stalemate, and some Democrats threatening to shut down the Senate, many are starting to expect nothing will get done in Congress this year.  But it doesn't have to be that way.  There is one topic on which lawmakers can act, even in this bitter climate.  The same Senate Judiciary Committee members sparring over the Supreme Court nomination process will soon announce a long-awaited compromise on a bill to help reduce America's prison population.

Can our nation's leaders put aside their differences to help resolve one of the largest crises facing our country?  We certainly hope so.  The bill would be the largest congressional action on criminal justice reform in a generation, and a rare attempt at cooperation across party lines.  Lawmakers should not allow partisan bickering over the next Supreme Court justice to destroy a chance to fix a system we all agree is not working.  Congress must act fast, in this rare area of bipartisan accord, to pass sentencing reform....

Much has been learned in the last 25 years about who should be locked up and for how long.  The Sentencing Reform and Corrections Act recalibrates sentencing laws to implement these lessons....

Last month, Sens. Tom Cotton and Jeff Sessions raised concerns the legislation would jeopardize public safety.  In response, a group of nationally prominent police chiefs and prosecutors — the men and women who protect our safety every day — explained how the bill would actually help reduce crime.

Now, co-sponsors Sens. John Cornyn, Chuck Grassley and Mike Lee are revising the bill to address these anxieties.  At least two major changes are expected.  One would remove a provision from the bill that would have reduced mandatory minimums for repeat felons caught with a firearm.  Another would limit current prisoners' ability to seek reduced sentences under the new law if they committed certain serious crimes.  To many progressive advocates, these changes significantly reduce the breadth of the bill.

But even if there's a compromise bill, the next step is getting it to the floor for a vote.  Last week, Grassley met with President Barack Obama to tell him the Judiciary Committee will not hold a hearing or vote if he puts forth a Supreme Court nominee. It's rumored that some Democrats would allow the sentencing bill to falter if Republicans try to block a nominee.

But it is a false choice to pit sentencing reform against a Supreme Court battle.  Accord on one shouldn't be overridden by combat on the other....  Congress has passed legislation during other confirmation clashes.  While Justice Elena Kagan's nomination was pending in 2010, Congress passed a series of significant bills including sanctions against Iran, the Dodd-Frank Act, and another criminal justice law called the Fair Sentencing Act.  In 2005, a year that saw the confirmation of two new Supreme Court justices (Roberts and Alito), Congress passed a free trade act.

Both parties have a decision to make. Senate Majority Leader Mitch McConnell must decide whether to bring the measure to the Senate floor.  His Democratic counterparts Harry Reid and Nancy Pelosi must choose whether to bridge the divide, even if temporarily.  We will soon see how much the parties really care about getting government to work — and how much their cares about over-incarceration are more than just words.

Our politicians will not be able to sell the notion that the people's business should come to a complete halt for the sake of election-year posturing.  The time has finally come for criminal justice reform.  With Congress at a flashpoint over the Supreme Court, bipartisan cooperation to act matters now more than ever.

March 7, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (10)

Extended discussion of sex offender registries as life sentences for juveniles

The new issue of The New Yorker has this very lengthy article authored by Sarah Stillman titled "The List: When juveniles are found guilty of sexual misconduct, the sex-offender registry can be a life sentence." I recommend the piece in full, and here are just a few snippets:

Kids who sexually harm other kids seldom target strangers.  A very small number have committed violent rapes. More typical is the crime for which Josh Gravens, of Abilene, Texas, was sent away, more than a decade ago, at the age of thirteen.  Gravens was twelve when his mother learned that he had inappropriately touched his eight-year-old sister on two occasions; she sought help from a Christian counselling center, and a staffer there was legally obliged to inform the police.  Gravens was arrested, placed on the public registry, and sent to juvenile detention for nearly four years.  Now, at twenty-nine, he’s become a leading figure in the movement to strike juveniles from the registry and to challenge broader restrictions that he believes are ineffectual.  He has counselled more than a hundred youths who are on public registries, some as young as nine.  He says that their experiences routinely mirror his own: “Homelessness; getting fired from jobs; taking jobs below minimum wage, with predatory employers; not being able to provide for your kids; losing your kids; relationship problems; deep inner problems connecting with people; deep depression and hopelessness; this fear of your own name; the terror of being Googled.”

Often, juvenile defendants aren’t seen as juveniles before the law.  At the age of thirteen, Moroni Nuttall was charged as an adult, in Montana, for sexual misconduct with relatives; after pleading guilty, he was sentenced to forty years in prison, thirty-six of which were suspended, and placed on a lifetime sex-offender registry.  In detention, the teen-ager was sexually assaulted and physically abused.  Upon his release, his mother, Heidi, went online in search of guidance. “I’m trying to be hopeful,” she wrote on an online bulletin board, but “I wonder if he even stands a chance.”

Last fall, she contacted a national group called Women Against Registry, joining the ranks of mothers who are calling into question what a previous group of parents, those of victimized children, fought hard to achieve.  Recently, common ground between the two groups has emerged.  Many politicians still won’t go near the issue, but a growing number of parents — along with legal advocates, scholars, and even law-enforcement officials — are beginning to ask whether the registry is truly serving the children whom it was designed to protect.

If the sex-offender registry is a modern development, the impulse behind it — to prevent crimes by keeping tabs on “bad actors” — is not.  In 1937, after the sexualized murders of several young girls in New York, Mayor Fiorello LaGuardia called for the police to keep a secret list of “all known degenerates.”  A decade later, California built the first database of sex offenders, for private use by the police. But the practice of regulation took off only in the nineteen-nineties, when a tragedy changed the public’s sense of the stakes involved.

March 7, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (10)

Lots of Montgomery GVRs in latest SCOTUS order list

I am on a plane this morning on my way to the Alternative Sentencing Key-Stakeholder Summit (ASKS) taking place today and tomorrow at Georgetown University Law Center.  But conveniently, the Supreme Court released this order list just before I had to shut down my computer, and I see it has a lot of cases from a lot of states with variations on this note as part of a GVR:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the Court of Criminal Appeals of Alabama for further consideration in light of Montgomery v. Louisiana, 577 U. S. ___ (2016).

Justice Thomas, with whom Justice Alito joins, concurring in the decision to grant, vacate, and remand in this case: The Court has held the petition in this and many other cases pending the decision in Montgomery v. Louisiana, 577 U. S. ___ (2016).  In holding this petition and now vacating and remanding the judgment below, the Court has not assessed whether petitioner’s asserted entitlement to retroactive relief “is properly presented in the case.” Id., at ___ (slip op., at 13).  On remand, courts should understand that the Court’s disposition of this petition does not reflect any view regarding petitioner’s entitlement to relief.  The Court’s disposition does not, for example, address whether an adequate and independent state ground bars relief, whether petitioner forfeited or waived any entitlement to relief (by, for example, entering into a plea agreement waiving any entitlement to relief), or whether petitioner’s sentence actually qualifies as a mandatory life without parole sentence.

I also see a notable split per curiam summary reversal finding a due process Brady problem in a Louisiana capital case. I will discuss that merits ruling and any others of criminal justice interest that may still today come down from SCOTUS in future posts.

March 7, 2016 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

March 6, 2016

"Assessing and Ameliorating Arbitrariness in Capital Charging: A Doctrinally and Empirically Anchored Inquiry"

The title of this post is the title of this notable new paper now available via SSRN authored by Sherod Thaxton. Here is the abstract:

Justice Stephen Breyer recently made international headlines when he emphasized that reforms to the capital punishment process have apparently failed to ameliorate the rampant arbitrariness, capriciousness, and bias that led the U.S. Supreme Court to temporarily invalidate the death penalty over forty years ago.  According to the Justice, the primary cause of this failure has been the Court’s backpedaling on the very substantive and procedural protections it initially articulated as necessary for the constitutional administration of the death penalty.  The Court’s capital punishment jurisprudence initially underscored the importance of social scientific evidence in assessing the fairness of capital punishment systems, but now the Court routinely minimizes, or outright ignores, social science evidence on the operation of the death penalty.  This has led to the growing disjunction between the Court’s rhetoric and the reality of capital punishment. Justice Breyer underscored the Court’s responsibility in holding death penalty systems accountable and called for full briefing on the basic question of the social realities of the administration of capital punishment.

Meaningful death penalty reform, if possible, requires a more prominent role for social science in death penalty decision-making.  In this Article, I develop a doctrinally anchored statistical model that carefully disentangles and evaluates questions of arbitrariness, bias, and disproportionality in capital charging.  I begin by discussing the Court’s inconsistent efforts to rationalize and regulate capital punishment systems.  I then adopt a framework of statistical inference in an effort to provide greater definitional and analytical clarity. Finally, I describe a set of analytical tools uniquely suited for diagnosing capital charging errors that closely aligns with the Court’s conceptualization of unacceptable arbitrariness. I illustrate the usefulness of the model on data involving actual death penalty-eligible defendants from Georgia.

My analysis reveals that death penalty charging practices are highly inconsistent, irrational, and disproportionate, both within and across jurisdictions in Georgia.  The Article concludes by explaining how the empirical model might be used to improve accuracy and consistency in capital charging systems through empirically informed front-end charging screening.

March 6, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

In praise of (impossible?) request tasking Government Accountability Office with accounting for "the cost of crime in the United States"

Crime-2010I was quite pleased to discover this notable press release from the House Judiciary Committee reporting on a notable letter sent by two Representatives to the Comptroller General.  Here is the substantive heart of both the press release and the letter:

House Judiciary Committee Chairman Bob Goodlatte (R-Va.) and Congressman Steve King (R-Iowa) have requested that the Government Accountability Office (GAO) study the cost of crime in the United States to better inform members of the House Judiciary Committee as it continues its bipartisan criminal justice reform initiative.  In 2014, there were nearly 1.2 million violent crimes and 8.3 million property crimes in the United States, generating substantial costs for Americans, communities, and the country. In a letter to Comptroller General Gene Dodaro, Goodlatte and King request that the GAO study this issue and breakdown the cost of crime for federal, state, and local governments.

Below is the text of the letter....  

Dear Comptroller General Dodaro:

In June of last year, the House Judiciary Committee launched a criminal justice reform initiative.  Over the ensuing months, the Committee has addressed a variety of criminal justice issues through legislation. In order to assist our efforts in this endeavor, we are writing to you regarding our concerns about the cost of crime in the United States.  According to the Federal Bureau of Investigation, there were an estimated 1,165,383 violent crimes and an estimated 8,277,829 property crimes in 2014.  Undoubtedly, these and other crimes generate substantial costs to society at individual, community, and national levels. 

Accordingly, we seek the assistance of the Government Accountability Office in fully investigating the cost of crime in the United States.  Specifically, we are interested in:

  1. The cost of Federal and State crimes to victims of crime:
    1. Total cost
    2. Cost by state
  2. The cost of crime to the United States economy and to state economies
  3. The cost of crime to Federal, State, and local governments
  4. The cost of crime, per year:
    1. Per type of criminal offense
    2. Average cost per criminal  
    3. Average cost per victim
  5. The rate of recidivism of offenders who are released from terms of imprisonment, and the costs described under #1 through #3 for crimes committed by such offenders subsequent to their release  

We look forward to working with you so that GAO can expeditiously complete this important task. 

I am already very excited to see what the GAO comes up with as it takes up this request to "study the cost of crime in the United States." Indeed, upon seeing this press release, I started thinking it was quite notable and somewhat curious that there apparently has not been any prior requests for the GAO to engaging in what I agree is an "important task."

That said, I think this task has to start with important and challenging questions that are integral to defining what kinds of "Crimes" and what kinds of "costs" are to be included in this study and its efforts at accounting. Notably, this letter references the "nearly 1.2 million violent crimes and 8.3 million property crimes in the United States" as reported by the FBI, but this accounting leaves out what would seem to be some of the most wide-spread significant crimes in America according to various measures of nationwide illegal behaviors each year, namely drunk driving (with over 100 million estimated yearly incidents) and marijuana trafficking (over 50 million estimated incidents). Should the GAO leave out drunk driving incidents unless one includes a physical harm to persons or property? Should the GAO leave out marijuana offenses altogether in its accounting even though roughly half of all drug arrests nationwide are for these offenses and those arrests have various obvious economic costs to governments?

Ultimately, though, the challenge of defining what "crimes" to consider pales in comparison to defining what "costs" to consider in this kind of study. The majority of violent crimes recorded by the FBI are aggravated assaults, which are "an unlawful attack by one person upon another for the purpose of inflicting severe or aggravated bodily injury." And these kinds of assaults seem to come in all shapes and sizes in 2014 according to FBI data: Of those reported to law enforcement, "26.9 percent were committed with personal weapons, such as hands, fists, or feet. Firearms were used in 22.5 percent of aggravated assaults, and knives or cutting instruments were used in 18.8 percent. Other weapons were used in 31.9 percent of aggravated assaults." Can GAO reasonably guess that the "costs" to a victim of being severely beaten by fists are less (or perhaps more) than the costs of being shot? Do these costs turn significantly on the nature of the victim based on their age, health, gender or professional activities? If such an assault requires a person to say in bed for a week to recover, should we say the "costs" of missed acitivities are the same or are different for, say, a sales clerk or a student or an unemployed person?

Critically, as the image reprinted here highlights, doing these calculations is possible if you make a lot of assumptions.  Indeed, the Rand Corporation has run these numbers in the past, although many questions and concerns could obviously be raised about its accounting decisions.

March 6, 2016 in Data on sentencing, National and State Crime Data, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (4)

Iran measuring up white-collar nooses after sentencing three businessmen to death

As reported in this CBS piece, headlined "Iran sentences billionaire businessman to death," it seems that Iran's justice system does not view even prominent corporate executives as too big to kill.  Here are the deadly details:

An Iranian court has sentenced a well-known tycoon to death for corruption linked to oil sales during the rule of former President Mahmoud Ahmadinejad, the judiciary spokesman said Sunday.
Babak Zanjani and two of his associates were sentenced to death for "money laundering," among other charges, Gholamhossein Mohseni Ejehi said in brief remarks broadcast on state TV. He did not identify the two associates.
Previous state media reports have said the three were charged with forgery and fraud. "The court has recognized the three defendants as 'corruptors on earth' and sentenced them to death," said Ejehi. "Corruptors on earth" is an Islamic term referring to crimes that are punishable by death because they have a major impact on society.  The verdict, which came after a nearly five-month trial, can be appealed....
Iran's prosecutors contend Zanjani withheld billions in oil revenues channeled through his companies. A news website run by the judiciary identified the two associates as British-Iranian businessman Mahdi Shams, who was detained in 2015, and the other as Hamid Fallah Heravi, a retired businessman.
Zanjani was arrested in 2013 during a crackdown on alleged corruption during Ahmadinejad's rule.  Iran's Oil Ministry says Zanjani owes more than 2 billion euros ($2.25 billion) for oil sales he made on behalf of Ahmadinejad's government.  Zanjani is one of Iran's wealthiest businessmen, with a fortune worth an estimated $14 billion. He was arrested shortly after the election of President Hassan Rouhani, who ordered a crackdown on alleged corruption during the eight-year rule of his hard-line predecessor.  In a 2013 interview with the BBC, Zanjani claimed he was not a political person, saying: "I don't do anything political, I just do business."
Iran has in the past executed other wealthy individuals found guilty of similar charges. In 2014, Iran executed billionaire businessman Mahafarid Amir Khosravi over corruption charges.

March 6, 2016 in Death Penalty Reforms, Sentencing around the world | Permalink | Comments (3)