April 2, 2016
"Unfinished Project of Civil Rights in the Era of Mass Incarceration and the Movement for Black Lives"
The title of this post is the title of this newly published article authored by Nicole Porter. Here is the piece's introduction:
American criminal justice system has been dominated by relentless growth for the last forty years. The culture of punishment, in part driven by political interests leveraging “tough on crime” policies and practices marketed as the solution to the “fear of crime,” has been implemented at every stage of the criminal justice process: arresting, charging, sentencing, imprisonment, releasing, and post-incarceration experiences in the era of mass incarceration.
While it may not excuse criminal offending, the destructive effects of mass incarceration and excessive punishment are visited disproportionately upon individuals and communities of color and reinforce that the project of the civil rights revolution remains unfinished. In recent years, there has been growing consensus across ideological lines to address mass incarceration. Yet, policy changes are incremental in approach and do not achieve the substantial reforms needed to significantly reduce the rate of incarceration and its collateral impacts. Incremental policy reforms include: reducing the quantity differential between crack and powder cocaine that results in racially disparate sentencing outcomes at the federal level and in certain states; reclassifying certain felony offenses to misdemeanors; expanding voting rights and access to public benefits for persons with felony convictions; and adopting fair chance hiring policies for persons with criminal records.
The Movement for Black Lives, or Black Lives Matter, offers a new public safety framework to finish the project of civil rights in the era of mass incarceration. This movement has a sophisticated analysis that seeks to address the underlying structural issues that result in poor policy outcomes for communities of color, including high rates of incarceration. The public safety framework does not excuse criminal offending, but offers a new approach of viewing justice-involved persons — a disproportionate number of whom are African American and Latino — as worthy recipients of public safety responses not dominated by arrests, admissions to prison, or collateral consequences.
Aligning a Black Lives Matter framework with public safety strategies expands policy responses beyond the criminal justice system to evidence-based interventions demonstrated to reduce criminal offending. Research shows that early childhood education, quality healthcare, and targeted employment programs can help reduce recidivism and prevent justice involvement. More importantly, the Black Lives Matter framework can help to shift norms away from the punitiveness that dominates U.S. criminal justice policy.
Noticing the notable nature of states now categorically banning LWOP for juvenile murderers
This Washington Post piece by Amber Phillips spotlights an interesting reality as states continue to engage with some of the Supreme Court's recent Eighth Amendment jurisprudence. This piece is headlined "States are getting rid of life sentences for minors. And most of them are red states." Here are excerpts:
As America revisits its tough-on-crime policies from decades past, much of how to fix our criminal justice system is still up for debate. Most prominently, a bipartisan bill to rewrite the nation's sentencing laws is slogging through Congress and may well get stuck there.
But criminal justice reform advocates are celebrating a surprising amount of success in one area largely off the radar of the national debate: banning the practice of sentencing minors to life in prison without parole.
Twenty-one states ban entirely or in most cases the practice of sentencing minors to life without parole. Many of those bans have been instituted in the past decade. Lately, Republican-leaning states have been picking up the cause, an indication that the sentencing practice instituted in the 1990s is on its way out.
On Tuesday, Utah became the second state this year to ban such sentences, after South Dakota. And in the past few years, Wyoming, Nevada and West Virginia have instituted some version of the ban. Since a critical 2012 Supreme Court decision on this issue, the number of states that have banned the practice has more than tripled, said Jody Kent Lavy, director of the Campaign for the Fair Sentencing of Youth.
The debate, like many others in criminal justice reform, is hard to separate from race; advocates say the minors who have been sentenced to life without parole are 10 times as likely to be black than white. "There's clearly been a shift and a recognition that young people need to be held accountable in more age-appropriate ways, and we've really gone too far in our approach to youth sentencing," Lavy said....
In Utah, the debate to eliminate the practice from the books went pretty smoothly, said state Rep. Lowry Snow (R), who sponsored the bill. "I didn't have to twist a lot of arms," he said.
Snow and advocates say the arguments speak for themselves; they cite research that adolescents' brains are still growing and, thus, are not as skilled as adults' in controlling impulses or thinking through long-term actions. "They're not the same people when they're 16, 17, 18 than they are when they're 40 and 50 years old," he said.
Another argument that seems to resonate among more conservative, religious lawmakers is one of redemption. "Utah is very prone to a recognition that there can be redemption and people can be given a second chance," Snow said....
At its basic level, the debate over whether to keep or get rid of life sentences without parole mirrors the debate over the death penalty: What's the most appropriate way to punish someone for a heinous crime? In that sense, there is still opposition to the idea of banning life-without-parole sentences for minors.
Some crimes "are so heinous, so violent, so destructive … that maybe in rare cases they should receive the sentence of life without parole," state Rep. Merrill Nelson (R) said on the floor of the Utah statehouse after he spoke with the father of a teen who was killed by another teen. "Why should we take that discretion away from the judge?"
A victims advocacy group, the National Organization of Victims of Juvenile Murderers, says a ban is out of step for several reasons: The potentially un-ending parole process is often "torture" for a victim's family, and while it doesn't advocate for any specific sentence, it does not see why the life-without-parole option should be taken off the table....
And success, as described here, is relative. More than half of U.S. states still allow the sentence, after all. But given the broader political context in which these bans are coming, criminal justice reform advocates will take what they can get.
"Racial Disparities in Youth Commitments and Arrests"
The title of this post is the title of this notable new policy brief from The Sentencing Project with lots notable data, which gets started this way:
Between 2003 and 2013 (the most recent data available), the rate of youth committed to juvenile facilities after an adjudication of delinquency fell by 47 percent Every state witnessed a drop in its commitment rate, including 19 states where the commitment rates fell by more than half. Despite this remarkable achievement, the racial disparities endemic to the juvenile justice system did not improve over these same 10 years. Youth of color remain far more likely to be committed than white youth. Between 2003 and 2013, the racial gap between black and white youth in secure commitment increased by 15%.
Both white youth and youth of color attained substantially lower commitment rates over these 10 years. For white juveniles, the rate fell by 51 percent (140 to 69 per 100,000); for black juveniles, it fell 43 percent (519 to 294 per 100,000). The combined effect was to increase the commitment disparity over the decade. The commitment rate for Hispanic juveniles fell by 52 percent (230 to 111), and the commitment rate for American Indian juveniles by 28 percent (354 to 254).
As of 2013, black juveniles were more than four times as likely to be committed as white juveniles, Americans Indian juveniles were more than three times as likely, and Hispanic juveniles were 61 percent more likely. Another measurement of disproportionate minority confinement is to compare the committed population to the population of American youth.
Slightly more than 16 percent of American youth are African American. Between 2003 and 2013, the percentage of committed juveniles who were African American grew from 38 percent to 40 percent. Roughly 56 percent of all American youth are white (non-Hispanic). Between 2003 and 2013, the percent of committed juveniles who were white fell from 39 percent to 32 percent.
April 1, 2016
GOP frontrunners Donald Trump and Ted Cruz author joint letter urging Prez Obama to commute tens of thousands more federal sentences!
Apologies to those who clicked through based on the headline of this post to discover that this headline is my lame attempt to bring a timely sentencing spin to April Fools Day.
As I was thinking about what to post on this special day for silliness and pranks, it dawned on me that whomever does eventually become the GOP candidate for President probably would be eager to have Prez Obama commute tens of thousands of prison sentences before the election... so that he could thereafter blame any and all future crimes on the current President and every other Democrat currently in office or running for office. This reality, I think, helps explain why Prez Obama has still been so stingy with his clemency grants to date despite so much talk about a big clemency push.
Indeed, in light of Prez Obama's grant of only 61 more commutations earlier this week (details here), I am inclined to predict that we will only see, at most, a few dozen more clemency grants before the November election. But once the election is completed, I think it is entirely unpredictable what Prez Obama might do in the clemency arena. Prez Bill Clinton issued a large number of last-day clemencies, including a notorious pardon to campaign funder and fugitive Marc Rich, and the controversy that created likely led the Prez George W. Bush only granting a few lame-duck clemencies.
Ironically, if a fellow Democrat is elected in November, I suspect Prez Obama will be inclined to grant fewer lame-duck clemencies: he likely will not wish to create any unique challenges or controversies when a member of his own party takes over his position in the Oval Office, and he likely will be hopeful that a successor from his party will continue his visible clemency push. In contrast, if a Republican wins in November, I would expect Prez Obama to grant more clemencies so that he could in this way burnish his claim to have lived up to his "hope and change" campaign mantra in the criminal justice arena.
Finally, while focused on the intersection of April Fools Day and the 2016 campaign, am I crazy to imagine that GOP frontrunner Donald J. Trump might give a big speech today to announce that his entire campaign was just a massive prank and the most amazingly extended form of performance art in American political history?
Federal district judge astutely asks feds for accounting of political corruption sentences before high-profile NY pol sentencing
As reported in this New York Post article, headlined "Judge in Shelly Silver’s case wants to know how much time crooked pols usually get," a federal district judge has ordered federal prosecutors to help her discharge her post-Booker sentencing duties under 18 USC 3553(a)(6) to consider "the need to avoid unwarranted sentence disparities among defendants with similar records who have been found guilty of similar conduct." Here are the interesting details:
Manhattan federal Judge Valerie Caproni wants a chart outlining sentences for previously convicted New York politicians ahead of Sheldon Silver’s sentencing next month. In an order to prosecutors filed Thursday, Caproni asked for the information to “consider the need for unwarranted disparities between similarly situated defendants.”
The judge wants the government to include in its sentencing submission paperwork “a summary chart containing the sentences imposed on elected state and federal officials who were convicted in federal court of corruption-related offenses in the last five years to the extent that information is not unduly burdensome to obtain,” the one-page order says.
Prosecutors will have their hands full: Dozens of New York politicians have been convicted of charges varying from bribery to mail fraud and racketeering to tax evasion, prosecutors said.
Ex-City Councilman Dan Halloran was slapped with a stiff 10-year prison sentence for masterminding a failed $200,000 bribery plot to rig the 2013 mayoral election for then-state Sen. Malcolm Smith. Meanwhile, ex-Senate Majority Leader Smith, who was also busted, got seven years behind bars.
And Hiram Monserrate, the Democratic state senator who looted nearly $100,000 in taxpayer money to win higher office, was sent away for two years in 2012 after pleading guilty. Another disgraced ex-state senator, Pedro Espada Jr., received a five-year sentence for bilking a taxpayer-funded nonprofit to pay for his lavish lifestyle.
Silver faces up to 130 years behind bars after he was convicted in November of corruption charges. The 72-year-old ex-Assembly speaker will likely receive far less at his sentencing April 13.
Prosecutors’ sentencing submission is due by April 6, court records show. Ex-Senate Majority Leader Dean Skelos — who was convicted with his son, Adam, of bribery and corruption just weeks after Silver — also faces 130 years. The Skeloses will be sentenced April 28.
Based on the quote of this article, it seems that Judge Caproni has asked not merely for sentencing details on convicted New York politicians, but all "elected state and federal officials who were convicted in federal court of corruption-related offenses in the last five years." I am guessing there could be hundreds of politicians nationwide who fit into this category. I would be especially interested to see what this summary chart looks like, and I hope to be able to post it on this blog whenever it becomes publicly available.
March 31, 2016
A telling, but still unsatisfying, SCOTUS discussion of retroactivity during oral argument in Welch
As previewed in this post, yesterday the Supreme Court heard oral argument in Welch v. United States, which is principally concerned with the retroactive application of last Term's significant ruling in Johnson (authored by Justice Scalia) that the "residual clause" of the federal Armed Career Criminal Act was unconstitutionally vague. I am deeply interested in this Welch case, not only because I helped with this law professor amicus brief in Welch, but also because I have authored this law review article to explain my view that traditional SCOTUS retroactivity doctrines — so called Teague doctrines — developed with unique concern for the importance of preserving the finality of convictions are not necessarily the best was to examine whether and when a new sentencing rule ought to apply retroactivity.
Helpfully, Rory Little has followed up his terrific Welch oral argument preview post at SCOTUSblog with this spot-on oral argument review post titled "Argument analysis: A likely decision in favor of retroactivity?." Having read the full argument transcript in Welch (which is available here), I fell well positioned to assert that Rory's analysis is a much better and more enjoyable read, and it includes these essential insights at its start and end:
While it is not possible to describe the intricacies of retroactivity doctrine here — let alone wise if we want to keep our readers awake — it looks like last Term’s decision in Johnson v. United States will be declared to apply retroactively for all purposes, including on first and even successive (assuming they are timely filed) habeas corpus petitions. And as I explained in my preview, that result is likely, although not certain, to result in substantial sentencing reductions for a significant number of convicted federal defendants....
The law of retroactivity presents intellectual conundra that may never be fully settled. The decision in this case is likely to be simply one more precedent in the wavering doctrinal line. We will never know what Justice Harlan, or Justice Scalia, thinks of it. But convicted federal felons whose sentences are reduced by five or more years will not care about the intricacies, while young law professors aspiring to tenure will have new grist for their mills.
Though I am no longer a young law professor, the intricacies of retroactivity doctrines as articulated in Teague and its progeny are a source of frustration and concern for me. And the Welch oral argument leaves me concerned that the current Justices are going to be content to apply existing Teague doctrines in a quirky manner to a quirky case (as they have recently show they are wont to do in Montgomery v. Louisiana decided a few months ago). As I suggest in this law review article, applying traditional Teague doctrines in retroactivity cases that involving only sentencing issues necessarily involves banging a square equitable peg into and round Teague doctrinal hole. And yet, after reading the Welch transcript, it seems the Justices are for now content to just keep banging away.
Extraordinany (and extraordinarily timely) issue of the Annals of the American Academy of Political and Social Science
The March 2016 issue of The ANNALS of the American Academy of Political and Social Science has an extraordinary collections of essays by an extraordinary array of legal scholars and sociologists and criminologists under the issue title "The Great Experiment: Realigning Criminal Justice in California and Beyond." Though many of the articles focus on California's unique and uniquely important recent criminal justice reforms experiences, all folks interested in and concerned about sentencing and corrections reform in the United States ought to find the time to read most or all of the articles in this collection.
The special editors of this issue, Charis Kubrin and Carroll Seron, authored this introduction to the collection under the title "The Prospects and Perils of Ending Mass Incarceration in the United States." Here is an excerpt from that introduction:
This volume of The ANNALS represents the first effort by scholars to systematically and scientifically analyze what Joan Petersilia (2012) has described as “the biggest criminal justice experiment ever conducted in America.” She went on to note that “most people don’t even realize it’s happening,” a point underscored by Franklin Zimring in the volume’s concluding remarks. At a historic moment in which imprisonment patterns across the U.S. are shifting for the first time in nearly 40 years, the California case is ripe for in-depth examination. The political landscape around decarceration is also shifting in ways that do not fit the debate of the last 40 years. The initiative behind the prison buildup was largely an offshoot of more conservative, law and order political agendas, but as the nation debates a move toward prison downsizing and decarceration, there is support from both the Left and the Right for this fundamental shift in policy (Aviram, this volume; Beckett et al., this volume) — unusual bedfellows at a time of political polarization. While this political convergence will no doubt be contested, as Joan Petersilia emphasizes in the volume’s preface, it nonetheless represents an important moment to have a systematic, rigorous, and scientific evaluation of California’s experiment and its implications on hand for policy-makers.
Fair Punishment Project releases first major report: "Juvenile Life Without Parole in Philadelphia: A Time for Hope?"
In this post yesterday I noted the new initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). Today I received an email concerning the great new work of this great new initiative. Here is part of this email reporting on this new report from FPP:
As Pennsylvania prepares for hundreds of resentencing hearings, a new report released today by the Fair Punishment Project and Phillips Black highlights Philadelphia’s frequent use of life without parole sentences for juveniles, calling the county an “extreme outlier” in its use of the punishment. The report urges District Attorney Seth Williams to adopt a new approach to dealing with juveniles in response to the U.S. Supreme Court’s recent ruling in Montgomery v. Louisiana, which determined that the court’s prior decision barring mandatory life without parole sentences for youth must be applied retroactively.
The report, Juvenile Life Without Parole in Philadelphia: A Time for Hope?, notes that Philadelphia County is responsible for the highest number of juvenile life without parole sentences in the country. By way of comparison, Philadelphia County is home to just .5% of all Americans, but at least 9% of all juveniles sentenced to life without parole — or nearly one in 10.
“The latest scientific research show us that juveniles have a tremendous capacity to change their behaviors as they age,” stated Johanna Wald, a spokesperson for the Fair Punishment Project. “It is an injustice, and waste of taxpayer resources, to keep individuals locked up until their death for crimes they committed when they were teenagers. They should have an opportunity to prove they are worthy of a second chance.”
Wald notes that the Supreme Court has set a high bar to justify a life without parole sentence for juveniles. “The court has said that juvenile life without parole sentences should be reserved for exceptional cases that reflect ‘irreparable corruption.’ Given that adolescent brains are not fully developed and the capacity children have to change, the court rightfully assumes that it will be rare for an individual to meet this standard.”...
“Philadelphia has sentenced more juveniles to life without parole than anywhere else in the United States,” said John Mills of Phillips Black. “It is an outlier jurisdiction that, thanks to the court’s ruling, now has the opportunity to right the harsh punishments of the past by providing a thoughtful and measured approach to resentencing.”
March 31, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
"A Fatally Flawed Proxy: The Role of 'Intended Loss' in the U.S. Sentencing Guidelines for Fraud"
The title of this post is the title of this notable new article authored by Daniel Guarnera now available via SSRN. Here is the abstract:
Of all federal criminal defendants, those convicted of fraud are among the most likely to receive a sentence below the term recommended by the U.S. Sentencing Guidelines. The most important (and controversial) driver of fraud sentences under the Guidelines is the economic loss — actual or intended, whichever is greater — resulting from the crime.
This Article examines the role of the “intended loss” calculation. The U.S. Sentencing Commission designed the intended loss enhancement to function as a rule-oriented proxy for defendant culpability. By applying the framework of rules and standards, this Article argues that culpability, by its nature, is too multifarious a concept to be accurately represented by a single variable. Furthermore, a recently-enacted amendment to the definition of intended loss — which restricts its scope to losses “that the defendant purposely sought to inflict” — will only exacerbate the problem by excluding a significant subset of plainly culpable conduct.
Rather than attempt to fine-tune the intended loss calculation any further, this Article contends that the purposes of sentencing in general (and the goals of the Guidelines in particular) would be better served by enabling judges to conduct a more standard-based inquiry into the wide array of facts that can bear on culpability. It evaluates several proposals that would give judges greater discretion while, at the same time, minimizing the risk of unwarranted sentencing disparities.
March 30, 2016
GOP frontrunner Donald Trump says "some form of punishment" would be needed for women who have abortions if procedure is made illegal
This recent article at The Crime Report, headlined "Trump On Crime: Tough Talk, Few Specifics," highlighted how hard it is to figure out Donald Trump's policy position on various criminal justice issues (in which I was quoted):
Most experts we talked to say it’s hard to distinguish the rhetoric from the policies. “[The Trump campaign] has not issued a platform yet, so I’m not sure that I’d take anything that he’s been saying as an actual criminal justice policy,” said Inimai M. Chettiar, director of the Brennan Center’s Justice Program.
“What’s really frustrating, is that (he’s) like a cardboard candidate; you know what his pitch is but you don’t know anything else beyond that,” said Prof. Laurie Levenson of Loyola Law School. “And maybe he doesn’t either.”
Berman suggests half-jokingly that there’s a “simple answer” to the question of what Donald Trump believes about criminal justice. “Who the hell knows?” he said.
On many policy issues, Trump has sidestepped detailed responses by pointing to his experience in real estate and suggesting that good dealmakers keep their positions ambiguous at the start of any negotiation. That seems to apply to his approach to justice as well. Asked about specific criminal justice reforms, Trump often changes the subject back to supporting police or vague answers about needing to be “tough.”
But today GOP frontrunner Trump is making headlines for talking about criminal punishment in an especially controversial setting. This FoxNews piece, headlined "Trump says abortion ban should mean punishment for women who have procedure," provides the details:
Republican presidential front-runner Donald Trump said Wednesday said that if abortion were illegal in the United States, then women who have the procedure should be punished. Trump made the comments during a taping of an MSNBC town hall that will be aired later Wednesday.
Host Chris Matthews pressed Trump to clarify, asking him whether abortion should be punished and who ultimately should be held accountable. “Look, people in certain parts of the Republican Party, conservative Republicans, would say, ‘Yes, it should,’” Trump said. The candidate later put out a statement saying: “This issue is unclear and should be put back into the states for determination.”...
When asked specifically at the town hall what he thought, the New York businessman answered, “I would say it’s a very serious problem and it’s a problem we have to decide on. Are you going to send them to jail?”
“I’m asking you,” Matthews prompted.
“I am pro-life,” Trump said.
Matthews pressed on, asking again who should be punished in an abortion case if it were illegal.
“There has to be some form of punishment,” Trump said.
“For the woman?” Matthews asked.
“Yeah,” Trump responded, adding later that the punishment would “have to be determined.”
His rivals seized on the remarks. Ohio Gov. John Kasich later told MSNBC “of course women shouldn’t be punished.” An aide to Texas Sen. Ted Cruz tweeted: “Don't overthink it: Trump doesn't understand the pro-life position because he's not pro-life.”
With all due respect to the statement made by an aide to Senator Ted Cruz, it seems to me that Donald Trump actually understands — and may be taking more seriously than many other politicians — the oft-stated pro-life position that life begins at conception and that abortion it at least somewhat akin to homicide.
The National Right to Life Committee, the nation's oldest and largest pro-life organization, states expressly here that in the US "over 40 million unborn babies have been killed in the 40 years since abortion was legalized and more than 1.2 million are killed each year" and that "medical science has known conclusively that every individual's life begins at the moment of fertilization." Pro-Life Action League states expressly here that "killing an unborn child is inherently wrong, and therefore can never be justified regardless of circumstances. It is no more just to kill an unborn child in order to avoid hardship than it would be to kill a toddler to avoid hardship. Because the unborn child is unseen, it is easier for society to condone killing him or her, though this is morally indistinguishable from killing any child at any stage of development." The American Life League similarly states expressly here that "abortion is a direct attack on a preborn child which kills; it is murder."
If one genuinely believes that any abortion involves the intentional "killing" of a human life, that it is "morally indistinguishable from killing any child at any stage of development," and that "it is murder," and thus an act which should be criminally prohibited (like all other forms of intentional homicide), then I would hope that one ought also be genuinely committed to criminally punishing, at least to some extent, any and every person intentionally involved in this act of intentional killing which "morally indistinguishable from killing any child at any stage of development."
In modern society, we threaten to punish all sorts of persons (at least with fines) for all sorts of petty crimes like overtime parking and illegal copying of a DVD and loitering. I believe I am understanding and showing respect to the views and claims of persons who are pro-lifer when I surmise they consider any intentional abortion to be a societal wrong that is far more serious than, say, overtime parking or loitering. If that is right, then I also think it would be fair to say that Donald Trump is actually understanding and showing respect for the views and claims of persons who are pro-life when he suggests that women intentionally involved in obtaining illegal abortions ought to be subject to at least "some form of punishment."
Harvard Law School launches "Fair Punishment Project"
While I was on the road yesterday, I received an email with some exciting news from my law school alma mater. Here is the text of the email announcement:
We'd like to introduce you to a brand new initiative brought to you by Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). The Fair Punishment Project will use legal research and educational initiatives to ensure that the U.S. justice system is fair and accountable. The Project will work to highlight the gross injustices resulting from prosecutorial misconduct, ineffective defense lawyers, and racial bias and exclusion. We are dedicated to illuminating the laws that result in excessive punishment, especially the death penalty and juvenile life without parole.
We'll be releasing our first report in the next day or two, so keep an eye out -- you don't want to miss it. Future reports will highlight the troubling attributes that outlier death penalty counties have in common, examine America's top 10 deadliest prosecutors, and look deeply into counties that are plagued by prosecutorial misconduct.
The Charles Hamilton Houston Institute was launched in 2005 by Harvard Law School professor Charles J. Ogletree Jr. The Institute serves as a critical bridge between scholarship, law, policy, and practice to solve the challenges of a multi-racial society. The Criminal Justice Institute trains Harvard Law School students who will be the next generation of ethical, effective, and passionate defense lawyers. Led by Ronald S. Sullivan Jr., the Institute leads research of the criminal and juvenile justice systems in order to affect local and national reform.
The Fair Punishment Project will strive to be a valuable resource for anyone and everyone who is interested in bringing about a fair and equitable justice system. We hope you will visit our website at www.fairpunishment.org to learn more about our work, and that you will join us as we address one of the most critical issues of our time.
And here are titles and links to some of the notable sentencing-related content already up at the FPP website:
- Life Without Parole – From Bad Lawyers to No Lawyer At All
- Report Finds Juvenile LWOP Sentences Concentrated in a Few Counties, Disproportionately Impact Youth of Color
Fourth Circuit refuses to allow federal juvenile defendant to be tried as adult on charge carrying death or madatory LWOP
A number of helpful readers alerted me to this interesting Fourth Circuit panel ruling today in US v. Under Seal, No. 15-4265 (4th Cir. March 30, 2016) (available here), which gets started this way:
Pursuant to 18 U.S.C. § 5032, the Government filed a motion to transfer the Defendant -- who was a juvenile at the time of the alleged offense -- for prosecution as an adult for murder in aid of racketeering, in violation of 18 U.S.C. § 1959(a)(1). This crime carries a mandatory statutory penalty of either death or life imprisonment. The district court denied the Government’s motion after concluding that the prosecution would be unconstitutional given that recent Supreme Court decisions have held that the United States Constitution prohibits sentencing juvenile offenders to either of these punishments. See Miller v. Alabama, 132 S. Ct. 2455 (2012) (mandatory life imprisonment); Roper v. Simmons, 543 U.S. 551 (2005) (death penalty).
The Government appeals the district court’s decision, contending that its transfer motion should have been granted because the Defendant could have been sentenced to a term of years up to a discretionary life sentence. For the reasons set forth below, we affirm the district court’s decision.
Mississippi Gov supporting state legislative effort to use firing squads as back-up execution method
A helpful reader alerted me to this local article from Mississippi headlined "Governor Bryant supports firing squad bill." Here are the details:
The Mississippi House wants to allow the state prisons to execute prisoners using a firing squad if officials decide lethal injection is too expensive or unavailable.
Governor Phil Bryant voiced his support of the bill. “If the senate passes a firing squad bill, I’ll certainly sign it. My belief is we need to carry out a capital punishment that when the courts say that it’s necessary; and if it takes a firing squad we’ll do exactly that,” said Governor Bryant.
The house amended the bill Friday before passing it. It will now go back to the senate for more work. Attorney General Jim Hood has asked lawmakers to approve alternate execution methods such as electrocution, the use of nitrogen gas as well as the firing squad.
As long time readers surely know, I have been urging states to seriously explore alternatives to lethal injection for the better part of a decade: in this December 2006 post, for example, I flagged an discussion of various new and old execution procedures that might be explored suggested that "states interested in continuing to employ the death penalty should start exploring alternatives to lethal injection." I suppose I am pleased to hear leaders in Mississippi have come around, but there sure seems to have been a whole lot of capital justice delayed in that state and many others because of a failure of states to seriously explore alternative execution methods.
Just a few prior related posts on firing squads and other alternatives over the last decade:
- Is it time to seriously consider alternatives to lethal injection? (from 2006)
- Could states eager to execute quickly adopt a new execution method? (from 2007)
- A bit of historical perspective on execution methods (from 2009)
- A worldly perspective on different execution methods (from 2009)
- Shouldn't we celebrate condemn's request that he "would like the firing squad, please"? (from 2010)
- "Experts argue firing squad is a humane execution" (from 2010)
- Should problems with lethal injection prompt return of other execution methods? (from 2011)
- Making a potent argument for executions by firing squad rather than lethal injection (from 2013)
- Poll after ugly execution highlights enduring death penalty support and openness to various execution methods (from 2014)
- Shouldn't Congress be holding hearings to explore federal and state execution methods? (from 2014)
- "In praise of the firing squad" (from 2015)
- Utah legislature brings back firing squad as alternative execution method (from 2015)
- "Heroin as an execution drug?" (from 2015)
Prez Obama commutes the sentence of 61 more federal drug offenders
As reported in this Washington Post piece, "President Obama commuted the sentences of 61 inmates Wednesday, part of his ongoing effort to give relief to prisoners who were harshly sentenced in the nation’s war on drugs." Here is more on this notable clemency news:
More than one-third of the inmates were serving life sentences. Obama has granted clemency to 248 federal inmates, including Wednesday's commutations. White House officials said that Obama will continue granting clemency to inmates who meet certain criteria set out by the Justice Department throughout his last year.... Since the Obama administration launched a high-profile clemency initiative, thousands more inmates have applied. Another 9,115 clemency petitions from prisoners are still pending....
But sentencing reform advocates said that many more prisoners are disappointed they have not yet heard from the president about their petitions. “Sixty-one grants, with over 10,000 petitions pending, is not an accomplishment to brag about,” said Mark Osler, a law professor at the University of St. Thomas in Minnesota and an advocate for inmates petitioning for clemency. “I know some of those still waiting, men who were grievously over-sentenced, who have reformed themselves, and never had a record of violence. My heart breaks for them, as their hope for freedom — a hope created by the members of this administration — slips away.”
The White House has argued that broader criminal justice reform is needed beyond the clemency program. “Despite the progress we have made, it is important to remember that clemency is nearly always a tool of last resort that can help specific individuals, but does nothing to make our criminal justice system on the whole more fair and just,” said White House counsel W. Neil Eggleston. “Clemency of individual cases alone cannot fix decades of overly punitive sentencing policies. So, while we continue to work to resolve as many clemency applications as possible — and make no mistake, we are working hard at this — only broader criminal justice reform can truly bring justice to the many thousands of people behind bars serving unduly harsh and outdated sentences.”
Among those granted clemency on Wednesday was Byron Lamont McDade, who had an unusual advocate in his corner. The judge who sent McDade to prison for more than two decades for his role in a Washington-area cocaine conspiracy personally pleaded McDade’s case for early release. U.S. District Judge Paul L. Friedman said McDade’s 27-year punishment was “disproportionate” to his crime, but that he had no choice but to impose the harsh prison term in 2002 because of then-mandatory sentencing guidelines. Over the years, the judge had urged the Bureau of Prisons and the White House to reduce McDade’s sentence to 15 years. He received no response until now....
On Thursday, the White House will hold an event called Life after Clemency that will include former inmates and their attorneys, along with some prison reform advocates. The president’s senior adviser, Valerie Jarrett, is meeting with advocates, former inmates and family members of prisoners Wednesday at the White House for an event about women and the criminal justice system.
This White House Press release provides basic details on the full list of 61 offenders who today learned that they now have a "prison sentence commuted to expire on July 28, 2016." Many of those listed appear to have been involved in a crack offense, though other drug cases sentenced both before and after Booker can be found in the group. Notably, this NACDL press release reports that "25 of [these 61 offenders] were applicants whose petitions were supported by Clemency Project 2014." This White House blog post authored by White House counsel W. Neil Eggleston provides more details and context concerning these grants:
Today, the President announced 61 new grants of commutation to individuals serving years in prison under outdated and unduly harsh sentencing laws. More than one-third of them were serving life sentences. To date, the President has now commuted the sentences of 248 individuals – more than the previous six Presidents combined. And, in total, he has commuted 92 life sentences.
Underscoring his commitment not just to clemency, but to helping those who earn their freedom make the most of their second chance, the President will meet today with commutation recipients from both his Administration and the previous administrations of Presidents George W. Bush and Bill Clinton. During the meeting, the commutation recipients will discuss their firsthand experiences with the reentry process and ways that the process can be strengthened to give every individual the resources he or she needs to transition from prison and lead a fulfilling, productive life.
Building on this conversation, tomorrow the White House will host a briefing titled Life After Clemency with advocates, academics, and Administration officials to discuss and share ideas on the President’s clemency initiative and ways to improve paths to reentry. In addition to officials from the White House and the Department of Justice, experts, academics, and commutation recipients will share their expertise and insights on returning to society after years behind bars. To watch the briefing live, tune in tomorrow, Thursday, March 31, at 2:00 PM EDT at www.whitehouse.gov/live.
Fascinating SCOTUS Sixth Amendment splintering in Luis v. United States
The Supreme Court this morning handed down an opinion this morning that is fascinating based simply on the line-up of Justices: "BREYER, J., announced the judgment of the Court and delivered an opinion, in which ROBERTS, C. J., and GINSBURG and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in the judgment. KENNEDY, J., filed a dissenting opinion, in which ALITO, J., joined. KAGAN, J., filed a dissenting opinion." This line-up ruled for the criminal defendant in Luis v. United States, No. 14-419 (S. Ct. March 30, 2016) (available here), and here is how Justice Breyer's plurality opinion starts:
A federal statute provides that a court may freeze before trial certain assets belonging to a criminal defendant accused of violations of federal health care or banking laws. See 18 U. S. C. §1345. Those assets include: (1) property “obtained as a result of ” the crime, (2) property“traceable” to the crime, and (3) other “property of equivalent value.” §1345(a)(2). In this case, the Government has obtained a court order that freezes assets belonging to the third category of property, namely, property that is untainted by the crime, and that belongs fully to the defendant. That order, the defendant says, prevents her frompaying her lawyer. She claims that insofar as it does so, it violates her Sixth Amendment “right . . . to have the Assistance of Counsel for [her] defence.” We agree.
"Sentencing Reductions versus Sentencing Equality"
The title of this post is the title of this interesting and timely new paper by Susan Klein now available via SSRN. Here is the abstract:
The Sentencing Reform Act of 1984 was enacted by an odd conglomeration of Democrat and Republican who agreed that federal sentences should be based upon relevant offender and offense characteristics, not including such things as race, gender, geography, ideological bent of the sentencing judge, or citizenship. That goal has become lost and less relevant in today’s world of draconian and mandatory minimum sentencing, especially in the drug trafficking, child pornography, and fraud arenas. Mass incarceration has run rampant. Sentences are so out-of-whack with most basic principles justice that the fact that female offenders may receive slightly lower prison terms than their male counterparts should no longer be the very top of our reform agenda.
This is not to suggest that scholars and the public shouldn’t be concerned with sentencing disparity, especially based on race. However, the disparity between federal and state sentences is so much wider (and occurs so much more frequently) than the disparity among similarly-situated federal offenders that the latter appears less of a significant issue in absolute terms. Whatever reform capital policy-makers and scholars retain should be poured into championing alternatives to criminalization (such as fines, drug treatment, and apologies) and alternatives to long prison terms (such as probation and parole). Reforms must focus on discovering what offenses we could safely decriminalize, and what programs are effective in keeping individuals out of prison in the first place (or in curbing recidivism once incarceration has occurred).
If giving judges more discretion at sentencing means lower average prison terms, this will probably rebound to the benefit of our minority populations as a whole, even if it might mean that in particular cases minority defendants receive slightly higher sentences for the same conduct as their white counterparts. Likewise, if sentencing, parole, and probation decisions based upon “risk assessment” leads to lower overall incarceration rates, we may have to tolerate this even if it generates higher risk numbers for certain minority offenders. Critics of every substantive criminal-law and sentencing reform proposal need to remember the big picture, and not lose sight of the forest of mass incarceration for the trees of unwarranted sentencing disparity.
Federal court to hear challenge to "scarlet passport" provision of International Megan’s Law
As reported in this Wall Street Journal article, a constitutional challenge to a contoversial aspect of a law passed by Congress last month is schedule for a federal court hearing today in California. The article is headined "Law Creating Passport Mark for Sex Offenders Faces First Challenge: Lawsuit targets ‘unique identifier’ for passports of those convicted of sex crimes involving minors," and here are excerpts:
A new federal law requiring the State Department to mark the passports of certain convicted sex offenders is expected to face its first test in federal court on Wednesday. A group of convicted sex offenders has asked a federal judge in Oakland, Calif., to block the measure pending the outcome of a February lawsuit they filed that challenges the law’s constitutionality.
The law, International Megan’s Law to Prevent Demand for Child Sex Trafficking, mandates the State Department to add a “unique identifier” to passports of Americans convicted of sex crimes involving minors and that U.S. officials to alert foreign governments when those Americans travel abroad.
The judge, Phyllis J. Hamilton, is scheduled to hear arguments on Wednesday on whether to suspend implementation of the passport mark and the notification requirement. The lawsuit’s plaintiffs say the law violates the U.S. Constitution by forcing people convicted of sex offenses to bear the equivalent of a “proverbial Scarlet Letter” on their passports. The First Amendment limits what the government can compel people to divulge. The complaint asks a federal judge to strike down the law as unconstitutional.
“For the first time in the history of this nation, the United States Government will publicly stigmatize a disfavored minority group using a document foundational to citizenship,” says the lawsuit, filed on Feb. 8 in federal district court in Oakland, Calif.
The new law codifies a nearly decade-old program called Operation Angel Watch, which U.S. officials said has helped to curb child-sex tourism by alerting countries of sex offenders traveling to them. Supporters say the law will help countries with a lack of resources deal with child predators and encourage foreign governments to reciprocate when sex offenders from their countries try to enter the U.S. “Knowledge is power in terms of protection,” said Rep. Chris Smith (R., N.J.), who sponsored the bill. Rep. Smith said the passport mark to be created by the State Department will help keep Americans covered by the law from concealing their destination by traveling to a foreign country by way of another to engage in sex tourism.
The law, signed by President Barack Obama on Feb. 7, could cover a wide swath of offenders, including people convicted of misdemeanor offenses such as “sexting” with a minor, according to the lawsuit, which identifies the seven plaintiffs by the pseudonym John Doe.... Rep. Smith said he got the idea for International Megan’s Law during a meeting with a delegation of Thai officials about human-trafficking. He asked them what they would do if the U.S. alerted them when a registered offender was traveling to their country and “They said, ‘Well, we wouldn’t give them a visa,’ ” Mr. Smith recalled....
Janice Bellucci, a lawyer who represents the lawsuit’s plaintiffs, said she found few precedents for the passport identifier in her research. Among them: The Nazis confiscated Jewish passports and marked them with a “J,” and the internal passports in the Soviet Union singled out Jews by listing their ethnicity as Jewish, while other citizens were identified by their place of birth, she said.
Mr. Smith rejected the lawsuit’s comparisons and said California Reform Sex Offender Laws, a group Ms. Bellucci is president of, and others have long sought to weaken sex-offender laws. “U.S. law denies passports to delinquent taxpayers, deadbeat parents and drug smugglers,” the congressman wrote in a recent op-ed published in the Washington Post. “The law’s passport provision, however, does not go this far.”
International Megan’s Law doesn’t allow for offenders who states have deemed rehabilitated, or who have had their records expunged to have the passport mark removed, according to Ms. Bellucci. Nor does it exempt those who were minors at the time of their offense.
Nicole Pittman, director of the Impact Justice Center on Youth Registration Reform, an Oakland, Calif., group pushing to eliminate the practice of placing children on sex-offender registries, said about 200,000 of the roughly 850,000 people registered as sex offenders in the U.S. were under the age of 18 when they were convicted or adjudicated in juvenile court. “This is supposed to protect kids and we’re actually hurting them,” Ms. Pittman said of International Megan’s Law. “We have kids going on the registry for sending nude pictures of themselves.”
March 30, 2016 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)
March 29, 2016
Oklahoma creates Death Penalty Review Commission full of prominent folks .... which will likely achieve ....?
Though I generally think of myself as an optimist, this notable news item out of Oklahoma, headlined "Oklahoma Bipartisan Death Penalty Review Commission formed, supported," triggers the cynical little voice in my head that comes out when I hear about the creation of a blue-ribbon commission in the sentencing arena. (For those curious about aesthetic backstories, this Wikipedia entry highlights why we color expert panels blue instead of, say, having pink-ribbon commissions.) Before I go cynical, here are the details of the latest governmental gathering of note:
A group of prominent Oklahomans joined together Monday (March 28) to form a blue-ribbon, bipartisan Oklahoma Death Penalty Review Commission. The Commission will conduct what a press statement called “the first-ever independent, objective and thorough review of the state’s entire capital punishment system.”...
“Oklahoma has an opportunity to lead the nation by being the first state to conduct extensive research on its entire death penalty process, beginning with an arrest that could lead to an execution,” said former Gov. Brad Henry, of Henry-Adams Companies, LLC, one of the group’s co-chairs.“The Commission includes distinguished Oklahomans with differing views and perspectives on capital punishment who are donating their time to work together on a research-driven review,” he said.
Joining Gov. Henry as co-chairs are Reta Strubhar, a judge on the Oklahoma Court of Criminal Appeals (1993-2004) and an Assistant District Attorney of Canadian County (1982-1984); and Andy Lester, of the Spencer Fane law firm and a former U.S. Magistrate Judge for Western District of Oklahoma who served on President Ronald Reagan’s Transition team for the Equal Employment Opportunity Commission (1980-1981).
Members of the Commission have experience in a variety of aspects of the capital punishment system, including victim advocacy, policymaking, prosecution, defense, and judging. They also include leading lawyers, business leaders, and scholars. In addition to the co-chairs, the members are Robert H. Alexander, Jr., of The Law Office of Robert H. Alexander, Jr.; Howard Barnett, President of OSU-Tulsa; Dean Andrew Coats, Dean Emeritus of OU College of Law; Dean Valerie Couch, Oklahoma City University School of Law; Maria Kolar, Assistant Professor of OU College of Law; Rob Nigh, Chief Public Defender, Tulsa County; Christy Sheppard, a victims’ advocate; Kris Steele, Director of The Education and Employment Ministry (TEEM) and former Speaker of the House; and Gena Timberman, founder of The Luksi Group.
“Our goal is to provide a resource for Oklahomans to allow them to make informed judgments about our state’s capital punishment system that, we hope, will benefit both Oklahoma and the country as a whole,” said Henry.
Though I have long been a fan of any "research-driven review" of any sentencing system, I am not optimistic based on my own experiences in Ohio that this kind of death penalty review commission will be able to achieve all that much other than producing a lengthy report that will be embraced or rejected by political leaders based entirely on their already established views on the death penalty. This cynical prediction is based on how an array of ABA reports on state death penalty systems and how a recent Ohio Death Penalty Task Force report was received.
Critically, I do not mean to be asserting that this Oklahoma Death Penalty Review Commission is unimportant or sure to inconsequential. But I do mean to assert that basic political dynamics rather than refined policy analysis defines and often limits the possibilities for reforming the administration of the death penalty.
"There hasn’t been a criminal defense lawyer on the Supreme Court in 25 years. That’s a problem."
The title of this post is the headline of this notable new Vox commentary authored by Dara Lind. Here is how the piece starts:
It's been a quarter-century since a former criminal defense lawyer sat on the Supreme Court. Since then, crime has fallen by half. Incarceration has risen, then fallen (slightly) again. Americans are becoming more and more critical of the "tough-on-crime" mindset that defined the end of the 20th century, and more skeptical that police and prosecutors will always use their powers for good — in other words, they're coming in line with how defense lawyers see the world.
But when Barack Obama made his third (and likely final) Supreme Court nomination last week, he nominated Merrick Garland. Garland is a former prosecutor with a tough-on-crime record. The Court already has two ex-prosecutors.
Appellate defense lawyer Timothy O'Toole points out that the Court has veterans of both sides of civil cases (defendants' and plaintiffs' lawyers) and one side of criminal cases (prosecutors). "But the one group that seems kind of outside that box, particularly on the Supreme Court, are defense lawyers. And that's a shame."
Defense lawyers and scholars worry this isn't an accident; it's the result of the structure that shapes who can get nominated to the Supreme Court to begin with. Federal judges tend to be people who "ticked all the political checkboxes on their career starting from when they were 15," says Tejas Bhatt, assistant public defender for New Haven, Connecticut. Often one of those boxes is working as a prosecutor. Even beyond any particular career experience, the system rewards "people who don't take controversial positions, they don't do controversial things, who don't issue controversial opinions, who do seem to hew more toward law and order and enforcement."
There's good reason to be concerned about the jurisprudence of a court that only understands one side of a criminal case from experience — and since the high-water mark of the 1960s, defense lawyers have seen the Supreme Court put serious restrictions on the right against self-incrimination, the right against unreasonable search, and even the right to a lawyer.
But to many of them, this isn't just a problem with jurisprudence. It's a problem with the Supreme Court in a democracy — and in an increasingly diverse America. They believe the politics of Supreme Court confirmations has limited all but a very narrow, very privileged slice of America to have a shot at a seat on the highest court in the land. And one of the groups who they fear are locked out is the people whose job it is to stand up for the rights of the marginalized — and those who are on the wrong side of well-intentioned laws.
Still more ugly details on the still ugly realities of the federal clemency process
Regular readers are probably tired of hearing me complain regularly about the failure of the Obama Administration to fix the many problems surrounding the modern federal clemency process. But this new USA Today article, headlined "Former administration pardon attorney suggests broken system in resignation letter: Former Pardon Attorney Deborah Leff said she was unable to talk to the White House about pardons," provides still more grist for my clemency kvetching mill. Here is how the piece starts:
The Obama administration instructed Justice Department attorneys to neglect applications for presidential pardons to give priority to the Justice Department's initiative to release low-level offenders from prison, the former pardon attorney said in her resignation letter early this year. That inaction was one of several issues that former Pardon Attorney Deborah Leff cited in her letter, which was obtained by USA TODAY after making a Freedom of Information Act request. Leff resigned in January after less than two years as the official responsible for making clemency recommendations for the president.
Her resignation letter suggests a broken and bureaucratic process at odds with President Obama's own aim to exercise his pardon power "more aggressively" in the final months of his presidency. Leff wrote that the administration's focus on the clemency initiative at the expense of traditional pardons and commutations "means that the requests of thousands of petitioners seeking justice will lie unheard."
"This is inconsistent with the mission and values to which I have dedicated my life, and inconsistent with what I believe the department should represent," she wrote.
It's the job of the U.S. pardon attorney to investigate all of those cases and make a recommendation to the deputy attorney general, who then forwards it to the White House Counsel's Office and, ultimately, the president. Because the pardon attorney advises the president on sensitive cases, the process is cloaked in secrecy, and officials rarely discuss the process publicly. So Leff's letter offers a rare glimpse into how the pardon office works in the Obama administration. Unlike in previous administrations, where pardon office staffers and the White House had routine conversations, Leff said she was denied "all access to the White House Counsel's Office," which is the last step for a pardon application before being approved or denied by the president.
She said Deputy Attorney General Sally Quillian Yates had overruled her recommendations in an increasing number of cases — and that in those cases, the president was unaware of the difference of opinion. "I believe that prior to making the serious and complex decisions underlying clemency, it is important for the president to have a full set of views," she said.
And she said the Justice Department had not made good on its promise to put the required resources behind the clemency initiative. That initiative, part of a broader push for sentencing reform, was designed to use the president's constitutional pardon power to release federal inmates who would have received shorter sentences had they been sentenced under today's more lenient guidelines. It applies mostly to non-violent drug offenders serving sentences of 10 years or more, with good behavior while in prison.
March 28, 2016
NY Times laments "A Modern System of Debtor Prisons"
The New York Times today ran this editorial headlined "A Modern System of Debtor Prisons." Here are excerpts:
Court systems commonly raise revenue by punishing people who commit minor offenses with fines, fees and penalties that can pile up, driving them into poverty. Worse still, state and local governments often jail people illegally for nonpayment, putting them at risk of losing their jobs and homes.
The Justice Department responded forcefully to this problem in Ferguson, Mo. This month, the racially troubled town agreed to a federal plan to root out racist and unconstitutional practices in its Police Department and courts. The case put other state and local governments on notice that they, too, could be held accountable for operating court systems that violate the constitutional rights of people charged with nonpayment of fines.
The guidelines issued by the Justice Department’s Civil Rights Division explain in detail what courts can and cannot do when enforcing fine collections. The department says state and local courts have an obligation to inquire about a person’s ability to pay fines and fees before jailing them for nonpayment. The Supreme Court has repeatedly ruled that imprisoning a person because he or she is too poor to pay a fee amounts to “punishing a person for his poverty” and violates equal protection under the 14th Amendment....
The danger of unjust practices is magnified when courts hire private companies to collect court fines. These companies often operate without oversight, which leaves them free to adopt abusive tactics and bleed people with fees and penalties. The Justice Department makes clear that courts can be held accountable for constitutional violations committed by the firms they hire. The Ferguson reform plan is a reminder of how far state and local courts have strayed from the law in this area, and it provides a clear route to restoring lost justice for the indigent.
Call for Papers for Symposium on "Private Prisons: The Corporatization of Criminal Justice and the New Marketplace for Crime"
I am very pleased to be able to post a timely call for papers sent my way by a former student who is now in law teaching and working hard in the arena of criminal justice reform and sentencing. Here are the event/paper details sent my way:
Indiana Tech Law School will dedicate its 2016 Annual Symposium to the pressing issue of the prison industrial complex, and specifically the role of private prisons in mass incarceration. The symposium, titled Private Prisons: The Corporatization of Criminal Justice and the New Marketplace for Crime, will seek to contextualize the criminal justice system against the backdrop of the for-profit prison system, particularly the system’s reliance upon high rates of incarceration to sustain its business model. The symposium seeks to address a broad range of questions, including how the profit-motive of private prisons influences the length and severity of sentences and availability of parole, how private prisons and mass incarceration disproportionately impact communities of color, and how private prisons contribute to social inequality and oppression.
The United States imprisons more people, both per capita and in absolute terms, than any other nation in the world. Since the 1980’s, the government has increasingly turned to private corporations to build, maintain, and operate prisons to house the burgeoning prison population. This unprecedented level of incarceration by for-profit corporations has important implications for law and policy, not only in the context of criminal justice but also in immigration detainment and deportation matters. Currently, forprofit prisons detain 6% of state prisoners, 16% of federal prisoners, and nearly half of all immigrants detained for documentation status.
The private prison system raises issues that touch upon criminal sentencing, immigration policy, the legitimacy of delegating carceral policy to the private sector, and fundamental liberty guarantees under the Fourteenth Amendment. We seek papers that will contribute to the important dialogue about the legal system’s responsibility for both producing and correcting these outcomes. Papers accepted for the symposium will be published in a special symposium edition of the Indiana Tech Law Review.
Workshop Contacts: andré douglas pond cummings (ADCummings @ indianatech.edu), Adam Lamparello (AXLamparello @ indianatech.edu) and Yvonne Lindgren (YFLindgren @ indianatech.edu)
Submission procedure: Email a proposal of up to 500 words as a Word or PDF document by May 1, 2016. Please include your name, institution, and contact information in the proposal and submit it via email to Lydia LaMont (LGLaMont@indianatech.edu) with the subject line “Symposium Call for Papers.” Decisions will be made by June 1st and working paper drafts are due by October 15th.
Symposium Details: The Symposium will be held at Indiana Tech Law School in Fort Wayne, Indiana on November 11th. The program will consist of panel discussions and a keynote address.
A week of extraordinary reporting and commentary via The Crime Report
Regularly readers are perhaps used to me regularly praising The Crime Report for its impressive original reporting and interesting commentaries on an erray of criminal justice issues. This post is another in this series, prompted by the fact that I have been meaning to do distinct posts about nearly a dozen pieces I saw over at TCR just over the last (too busy week). I remain hopeful I will get a chance to blog separately about some of the pieces below that I find more interesting or important, but for now I am going to have to be content to urger everyong to click through a read everyone of these linked piece:
"Time, Death, and Retribution"
The title of this post is the title of this notable new article by Chad Flanders now available via SSRN. To call this article timely and just dead on is both accurate and punny. Here is the abstract:
The heart of a Lackey claim is that when a death row inmate is kept waiting too long for his execution, this delay can amount to cruel and unusual punishment — either because they delay is itself cruel and unusual, or because the execution on top of the delay is. All Lackey claims brought by death row inmates have failed, but not for want of trying. The usual complaint against Lackey claims is that those who, by their own appeals, delay their execution date cannot turn around and use that delay as an argument against their death sentences. I agree with other scholars that this argument is incorrect. However, even if it is true that prisoner choice cannot make an otherwise unconstitutional sentence constitutional, Lackey claims can — and should — fail if the courts adopt a certain theory of retribution, what I call “intrinsic desert retribution”. Examining that type of retribution, distinguishing it from other retributive theories, and showing how intrinsic desert retribution can refute most Lackey claims, is one of this article’s major contributions. In doing so, it breaks with most of the scholarly literature, which tends to be sympathetic to Lackey claims.
But the fact that Lackey claims may survive given a certain theory of retribution does not make that theory something the state may permissibly pursue. And this is the second major contribution of the article: to make the case that retribution may in fact not be a permissible state purpose. In short, Lackey claims do not fail because they are too strong — they fail because they are not strong enough. The Supreme Court has traditionally held that the state may permissibly put someone to death because of retribution. But the Court has also said, in other contexts, that the state may not pursue certain aims. The state cannot promote religion, for one; nor can it adopt policies based solely on “animus” against a certain class of persons. My article suggests that when the state adopts retribution as a goal in capital punishment, and pursues that goal even after years of delay, then retribution starts to look more and more like something that, while it may be morally right, cannot be a goal the state can legitimately pursue.
March 27, 2016
Effective previews via SCOTUSblog before an exciting upcoming SCOTUS week for sentencing fans
This coming week brings two interesting Supreme Court cases about sentencing issues via Betterman v. Montana, to be argued on Monday, March 28, and Welch v. United States, to be argued on Wednesday, March 30. I will likely have plenty to say about both cases after the oral arguments; helpfully, two great pre-argument previews done by Rory Little over at SCOTUSblog provides an opportunity to gear up for this year's SCOTUS sentencing March madness. Here are links to, and the start of, these SCOTUSblog previews:
The Sixth Amendment provides various rights for “all criminal prosecutions.” Among those listed is “the right to a speedy and public trial.” Next Monday, March 28, in Betterman v. Montana, the Court will consider whether the “speedy” part of the right applies to a criminal defendant’s sentencing that happened about fourteen months after he was convicted by guilty plea. The briefing in the case is very good, and Betterman is represented by an experienced appellate advocate (Fred Rowley, making his first Supreme Court argument), as well as the UCLA Supreme Court Clinic. Montana’s solicitor general, Dale Schowengerdt, will argue for the state, and Assistant to the U.S. Solicitor General Ginger Anders will argue on behalf of the United States as an amicus in support of Montana.
It seems increasingly clear that the current Supreme Court Term will have to be headlined “Justice Scalia is sorely missed.” Next Wednesday, March 30, the Court will hear argument in yet another criminal case in which the unexpected passing of Antonin Scalia on February 13 will leave an unanswered “hole” in the Court’s deliberations. Last June, Justice Scalia wrote the opinion in Johnson v. United States, in which, after an eight-year campaign originating in Justice Scalia dissents, a majority declared the “residual clause” of a federal repeat-offender statute unconstitutionally vague. The question quickly arose whether that ruling should be applied to federal cases on collateral review, even though they were “final” before Johnson was decided. That is, should Johnson apply “retroactively”? To answer that question, the Court chose (from among others) the petition in Welch v. United States. (On a tangential note, some courts of appeals have differed on the question of retroactivity for “initial” versus “successive” collateral review requests; this case will apparently answer for both contexts.)
Interestingly, the federal government has told the Court that it agrees with Gregory Welch that Johnson should be fully retroactive, and that Welch’s case should be remanded for resentencing. Thus, the Court has appointed an experienced amicus, Helgi Walker (a former clerk to Justice Clarence Thomas and partner at Gibson Dunn), to defend the judgment below, and the amicus brief, while likely controversial, is excellent.
"Cities begin to challenge a bedrock of justice: They’re paying criminals not to kill"
The title of this post is the headline of this lengthy Washington Post article about an alternative sentencing program sure to stir questions and controversy. Here are some of the details (with a key line emphasized):
RICHMOND, Calif. — The odds were good that Lonnie Holmes, 21, would be the next person to kill or be killed in this working-class suburb north of San Francisco. Four of his cousins had died in shootings. He was a passenger in a car involved in a drive-by shooting, police said. And he was arrested for carrying a loaded gun.
But when Holmes was released from prison last year, officials in this city offered something unusual to try to keep him alive: money. They began paying Holmes as much as $1,000 a month not to commit another gun crime.
Cities across the country, beginning with the District of Columbia, are moving to copy Richmond’s controversial approach because early indications show it has helped reduce homicide rates. But the program requires governments to reject some basic tenets of law enforcement even as it challenges notions of appropriate ways to spend tax dollars.
In Richmond, the city has hired ex-convicts to mentor dozens of its most violent offenders and allows them to take unconventional steps if it means preventing the next homicide. For example, the mentors have coaxed inebriated teenagers threatening violence into city cars, not for a ride to jail but home to sleep it off — sometimes with loaded firearms still in their waistbands. The mentors have funded trips to South Africa, London and Mexico City for rival gang members in the hope that shared experiences and time away from the city streets would ease tensions and forge new connections. And when the elaborate efforts at engagement fail, the mentors still pay those who pledge to improve, even when, like Holmes, they are caught with a gun, or worse — suspected of murder.
The city-paid mentors operate at a distance from police. To maintain the trust of the young men they’re guiding, mentors do not inform police of what they know about crimes committed. At least twice, that may have allowed suspected killers in the stipend program to evade responsibility for homicides.
And yet, interest in the program is surging among urban politicians. Officials in Miami, Toledo, Baltimore and more than a dozen cities in between are studying how to replicate Richmond’s program. The District of Columbia is first in line.
Implementing the Richmond model has emerged as a central fight this year between D.C. Mayor Muriel E. Bowser and the D.C. Council. Bowser (D) is opposed to the strategy, arguing that the city should instead use its resources to fund jobs programs and that there is little independent analysis of the Richmond program. The mayor did not include money for it in her proposed 2017 budget released Thursday, and Police Chief Cathy L. Lanier said she is skeptical of the need for the Richmond-style program and has not seen sufficient data to verify its results.
She and Kevin Donahue, Bowser’s deputy mayor for public safety, question the veracity of Richmond’s claims of having saved so many of the city’s most violent offenders, since mentors — and not police — pick the participants and there has not been a control group used to measure outcomes. “There’s never been a real evaluation of the program,” Lanier said. “They didn’t design the program to allow it to be evaluated,” Donahue added.
But this month, the D.C. Council unanimously approved the idea as the best response to a surge of violent deaths that rocked the city last year. D.C. Council member Kenyan R. McDuffie (D-Ward 5) has promised to shift money from the mayor’s other law-enforcement priorities to launch the program. He said the successes in Richmond cannot be ignored by city leaders serious about reducing crime. That’s because five years into Richmond’s multimillion-dollar experiment, 84 of 88 young men who have participated in the program remain alive, and 4 in 5 have not been suspected of another gun crime or suffered a bullet wound, according to DeVone Boggan, founder of the Richmond effort....
Richmond’s decision to pay people to stay out of trouble began a decade ago during a period of despair. In 2007, Richmond’s homicide tally had surged to 47, making it the country’s sixth-deadliest city per capita. In the 20 years prior to that, Richmond lost 740 people to gun violence, and more than 5,000 had been injured by a bullet. Elected leaders of the heavily African American city of about 100,000 began treating homicides as a public health emergency....
Operation Peacemaker Fellowship is working with its fourth class of recruits, and [Boggan] no longer needs to wow participants with money upfront. Dozens of former fellows on the streets of Richmond — alive and not in jail — are his best advertisement, he said.
Those in the program begin by drafting a “life map” and setting goals — such as applying for a job, going back to school or communicating better with family. They meet with facilitators who, unbeknown to the young men, are psychologists or sociologists. Together, they talk through issues in what amounts to stealth therapy. If they remain engaged for six months, meeting with mentors several times a week, they start to receive monthly payments between $1 and $1,000, depending on their level of participation. The maximum amount paid is $9,000 over the 18-month fellowship. The program has handed out $70,000 a year, on average, since 2010, Boggan said.
Boggan believes that travel is another key to the program’s success. He sets aside $10,000 per fellow for trips that are often the first time participants have left the state or the country. But fellows must agree to partner with someone they have either tried to kill or who attempted to kill them. “Wild, right?” Boggan says. “But they get out there and realize, ‘Hey, this cat’s just like me.’ ” Boggan’s measure of success: No fellows who have traveled together have been suspected in subsequent shootings against one another.
Boggan and his staff are used to questions — and criticism — about the money. How do they know it doesn’t go to drugs? Or bullets? They maintain that the money is an indispensable tool, a way to keep kids engaged long enough to make a difference in their lives. “This is controversial, I get it,” Boggan said. “But what’s really happening is that they are getting rewarded for doing really hard work, and it’s definite hard work when you talk about stopping picking up a gun to solve your problems.”...
Many details of how the District would replicate Richmond’s program have yet to be determined, but one aspect is clearly more complicated than in Richmond. While the California strategy relies on private donors to fund the stipends and travel, the District would probably use roughly a half-million dollars annually in taxpayer money. Asked whether he could justify the expense if it came from the city’s general fund, Richmond Mayor Tom Butt was uncertain. “I’d try really hard to find outside funding,” he said.
I fully understand the how controversial this program could be if framed as a "cash for killers" program that use taxpayer moneys to provide cash rewards to the most violent offenders simply for making efforts not to keep killing. But, as the first phrase highlighted above is meant to suggest, if this program is framed as a public health initiative that helps keep young people alive and healthly for minimal costs, then this program could look and should sound much more palatable to taxpayers. Of particular note, the latest DC budget proposal under the "Health and Human Services" line item, allocates $800,000 to something called the "Joyful Foods initiative." The early success of the Peacemaker Fellowships in Richmond, California suggests that devoting that money to reducing gun violence in DC may contribute much more to health and human services than making sure food in the District is viewed as joyful.
Not to be overlooked, especially when we focus on a town like DC where political money flows from private sources to all sort of political advocacy groups, it would seem very possible that enterprising individuals might be able to fundraise effectively for this cause. For example, a little research has revealed that both the NRA and the Brady Campaigns spend over $3,000,000 annually lobbying about firearm laws and policies. If both groups could simply be convinced to spend 10% of these lobbying budgets on a DC gun violence prevention program like Peacemaker Fellowships, this would itself provide $600,000 in resources for this kind of programming.