April 30, 2016
"Why Vague Sentencing Guidelines Violate the Due Process Clause"
The title of this post is the title of this new article by Kelsey Heilman now available via SSRN. Here is the abstract:
The United States Sentencing Guidelines are the mandatory starting point and the lodestone for the sentences of 75,000 federal defendants each year. Though advisory after the 2005 Supreme Court decision in United States v. Booker, the Guidelines continue to exert tremendous influence over federal sentencing practice. Last term, in Johnson v. United States, the Supreme Court struck down as unconstitutionally vague a sentencing provision of the Armed Career Criminals Act. In the ensuing year, a circuit split developed regarding whether that decision dooms a textually identical provision of the Guidelines, with some courts holding advisory sentencing guidelines are completely immune from due process challenges. In this Article, I argue the Guidelines violate the Due Process Clause of the United States Constitution if they are so vague they deny fair notice to defendants and invite arbitrary enforcement by judges.
Emerging news about two new notable gun control and gun safety efforts
These two recent stories about gun control and gun safety efforts from the folks in California and from the federal government have caught my eye lately:
From the west coast here, "Strict state gun-control measure close to making November ballot"
From inside the Beltway here, "Obama to make 'smart guns' push: The president is opening a new front against gun violence, and it's alarming cops who say they don’t want to be guinea pigs."
Long-time readers ikely know I have long thought both governments and others ought to be investing in smart gun technologies to try to cut down on gun violence and related harms. At the very least, I think modern guns ought to have some kind of built in technology that could provide, though could/GPS technology, some kind of digital trace whenever used by someone other than their licensed owner (I have in mind a kind of Lojack system that would only report when the licensed owner is not the user).
Georgia continuing to lead and innovate state sentencing reform with new focus on mass probation
The most astute observers of criminal justice systems realize that tackling mass incarceration will always be an uphill battle if we do not also look closely at the realities of (even more massive) modern probation and other laws and rules that place many persons under significant criminal justice supervision. Consequently, I am encourage to see that the folks in Georgia, who have already been at the forefront of state-level sentencing reforms, are now turning to this issue. This local article, headlined "Nathan Deal aims to cut ‘extraordinarily high’ number of Georgia offenders on probation," tells the basic story:
Fresh off another round of changes to Georgia’s criminal justice system, Gov. Nathan Deal said he’ll urge lawmakers next year to tackle the stubborn problem of the “extraordinarily high” number of offenders on probation in Georgia. He wants to target the rise of “split sentencing” in Georgia – a practice in which a defendant serves part of the sentence behind bars, and then often a greater time outside prison. He called it an “unusual phenomenon, and we don’t know why it’s happening.”
“We have a significantly high number of people who are under probation supervision – an extraordinarily high number compared with most other states,” he said. “You’re going to see the general area of probation being a focus point.” Georgia led the nation in placing its citizens on probation in 2015 and topped the charts for its probation rate, which critics said reflected an overuse of the system.
The state moved to reform the misdemeanor probation system after an AJC investigation showed courts contract with private probation companies to “supervise” and collect payments from people who can’t afford to pay off expensive traffic tickets and other misdemeanor fines on the day they go to court. Deal’s Council on Criminal Justice Reform has recommended that lawmakers consider taking another step in 2017 by decriminalizing most traffic violations and rethinking the length of probation terms.
April 29, 2016
"Louisiana Death Sentenced Cases and Their Reversals, 1976-2015"
The title of htis post is the title of this new reseach paper by Frank Baumgartner and Tim Lyman now available via SSRN. Here is the abstract:
Since 1976, Louisiana’s experience with capital punishment has been deeply dysfunctional, with a significantly higher case reversal rate than the national average, and marked disparities in sentencing, reversals, and executions depending on the race and gender of the victim and accused. Our comprehensive analysis of each of 241 death-sentence cases in the post-Gregg period suggests that the “modern” death penalty has not resolved the issues of arbitrariness and bias that concerned the US Supreme Court in the 1972 Furman decision, which invalidated previous death penalty statutes throughout the country.
Among 155 resolved death-sentence cases, there have been 127 reversals (of which nine were exonerations) and 28 executions. Since 2000, Louisiana has seen 50 reversals of previous death sentences, including seven exonerations, and only two executions.
Not only are these reversal rates extremely high, but the racial discrepancies are shocking as well. Death sentences are imposed in 0.52% of cases with black male offenders and black male victims, but in 15.56% of cases with black male offenders and white female victims — 30 times more likely. No matter the race of the offender, killers of whites are more than six times more likely to receive a death penalty than killers of blacks, and 14 times more likely to be executed. The racial disparities even extend into the appeals process, where cases of killers of whites are clearly less likely to be reversed. No white person has been executed in Louisiana for a crime against a black victim since 1752.
With nine months left in Obama Administration, apparently it is time for a clemency last call
Regular readers know I am a long-time critic of how modern presidents have (failed to) use their historic clemency powers and that I am not an especially big fan of how the Obama Administration and others have approached trying to do things better of late. Another frustrating piece of this story is captured by this new Politico piece headlined "Obama team making last-ditch push on commutations: Top Justice official says non-violent drug offenders are running out of time to apply for reduced sentences." Here are excerpts:
The Obama Administration is pressing hard to keep the clock from running out on thousands of federal drug convicts hoping to get their prison sentences shortened by President Barack Obama before he leaves office in January. Earlier this week, the No. 2 official at the Justice Department pleaded with volunteer lawyers working on those cases to get the commutation applications filed right away.
"Time is of the essence and the inmates who raised their hands for your assistance still need your help," Deputy Attorney General Sally Yates wrote in the unusual letter, dated Monday and obtained by POLITICO. In the message to attorneys working through a consortium known as Clemency Project 2014, Yates noted that the group has set internal deadlines for most cases as soon as Monday of next week and for other cases in mid-May. "I cannot stress how important it is [to] meet those deadlines," Yates wrote. "If those deadlines cannot be met, we need to ensure that inmates have sufficient time to file pro se petitions, and that the Department of Justice has enough time to process and review them."
Obama launched his so-called "Clemency Initiative" in early 2014, seeking to identify thousands who have served long drug-crime sentences that would likely have been shorter under current law. The effort was aimed at granting commutations to those who met certain criteria, such as being non-violent, low-level offenders. The announcement triggered a flood of clemency requests from close to 30,000 inmates — more than 10 percent of the federal prison population. The level of interest swamped the handful of lawyers in the office of the Justice Department's Pardon Attorney and overwhelmed the newly-created Clemency Project.
While the group has said nearly 4,000 attorneys were recruited to prepare applications, the process has been a tough slog, slowed by bureaucratic hurdles in obtaining paperwork and the reliance on lawyers who usually have no prior experience seeking clemency. Yates' letter to the Clemency Project lawyers says they have submitted "more than 850 petitions" thus far. That's a dramatic increase from the roughly 30 the group's lawyers had handed in about a year ago, but still far short of the number likely to yield the thousands of commutations some Obama administration officials expected at the outset.
The applications are also backlogged at the Justice Department, which had more than 11,000 commutation requests of all types pending at the end of March, according to Justice's website. In January, the Justice Department official who'd overseen the effort since the spring of 2014 resigned, complaining of a lack of resources and that her recommendations were not always being relayed to the White House. "The Department has not fulfilled its commitment to provide the resources necessary for my office to make timely and thoughtful recommendations on clemency to the president," Pardon Attorney Deborah Leff wrote in her resignation letter, obtained by USA Today through a Freedom of Information Act request.
White House Counsel Neil Eggleston said at a POLITICO Playbook Breakfast earlier this month that the Pardon Attorney's office has gotten a boost in resources and that some of the concerns Leff raised have been addressed. "The pardon attorney's office has a little more resources, which is good, and I have regular dealings with the pardon attorney directly, so to the extent that Ms. Leff was complaining about that, that was solved. Actually, it was solved before she left,” Eggleston said. “And so I think that we're moving forward in a pretty good way here."...
Last year, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) questioned whether the Justice Department had essentially outsourced its role in the process to the Clemency Project 2014 lawyers. A Justice Department official rejected that idea at the time, saying that the volunteer project — backed by the American Civil Liberties Union, the National Association of Criminal Defense Lawyers and others — was "completely separate" from Justice.
However, Yates' letter this week highlights the Clemency Project's internal deadlines and thanks the group for having "screened out ... 20,000 ineligible applicants." Critics, noting that Obama has granted commutations to some applications who did not appear to meet all the criteria, have expressed concern that some of those prisoners may have compelling cases for commutations but will be dissuaded from applying by having been screened out. In addition, in a less-noticed portion of Leff's letter, she said she had "been instructed to set aside thousands of petitions for pardon and traditional commutation."
I have got tired of being tired of hearing these stories of too many clemency applicants and too little ability to procees them all. But I will continue to note (and lament) all this, and continue to hope that Prez Obama will vindicate all the energies and excitement advocates devoted to these matters by granting at least a few hundred more commutations and some significant number of pardons before he passes on the keys to the Oval Office next January.
April 28, 2016
Senator Jeff Sessions (and thus Donald Trump?) comes out swinging against revised SRCA
Alabama's US Senator Jeff Sessions, whom I believe was the first notabe elected federal official to endorse Prez candidate Donald Trump, has wasted no time condemning, in intricate detail, the just-released revised version of the Senate's Sentencing Reform and Corrections Act (noted here). This press release, which runs over 1500 words and has too many criticisms to readily summarize, includes these passages:
The changes made to the criminal sentencing bill fail to fix the bill and leave us with legislation that still would release thousands of violent felons and endanger millions of Americans whose safety is increasingly threatened by rising crime rates. While visiting concern on prisoners is an important and valuable act, we must understand a core responsibility of the government is safety of the public. The wise approach is to slow down and evaluate the trends before accelerating prison population decline.
Since 2011, the federal prison population has decreased by over 20,000 (over 9 percent), bringing it to its lowest level since 2006. It will continue to decline by another 10,000 over the next year, bringing it to its lowest level since 2004. Drug prosecutions have dropped 21 percent since 2011. The Sentencing Commission recently ordered the release of 46,276 federal drug trafficking felons from federal prison, including those who carried semi-automatic weapons, participated in international heroin smuggling rings, and have violent criminal histories. And just last year, the Obama Administration released 90,000 criminal illegal aliens from custody.
Meanwhile, homicides in the 50 largest U.S. cities rose nearly 17 percent in 2015 — the largest single-year increase since at least 1960. In medium-sized cities, violent crime increased 5.3 percent. The country is in the midst of a historic heroin epidemic where 120 people die each day from overdoses.
Federal drug and sentencing laws have already been considerably relaxed. Congress must examine the potential far-reaching consequences of what has occurred before going any further. It is counterintuitive to further weaken penalties for drug traffickers, especially heroin traffickers, and to enable the release of several thousand more incarcerated drug and gun felons, particularly at this time....
According to Gallup, Americans are more concerned about crime than they have been in 15 years. If ever there was a time to release more violent felons into our communities, it most certainly is not now. Passing this legislation would not only be unwise, it would be unsafe....
Despite assurances otherwise, the revised bill still shortens mandatory minimums for repeat drug traffickers, including those who carried a gun, and would allow for early release of those currently in federal prison.... Moreover, this proposal would provide for leniency for illegal alien drug traffickers....
The revised bill adds a provision to shorten mandatory minimums for drug traffickers who smuggle drugs into the U.S. by boat or submarine. These criminals have never been eligible for such leniency and are rarely if ever U.S. citizens. This provision has already been tagged as the “Scarface” provision. Attorney General Loretta Lynch recently testified before the Senate Judiciary Committee that other than the Southern border, the majority of drugs come into the U.S. by maritime routes....
Before, the bill had a pro-law enforcement provision described by the sponsors as expanding the reach of the enhanced mandatory minimum for firearms offenses to those with prior state firearms offenses. That provision was removed entirely.
The revised bill further expands the statutory “safety valve” to major drug traffickers, including those with multiple prior criminal convictions.... The bill still provides leniency for illegal alien drug traffickers.
I am not sure if this criticism will keep the revised SRCA from being brought up for a vote, but I do think the connection between Senator Sessions and presumptive GOP Prez candidate Trump provides yet another significant impediment to this bill becoming law.
Prior related post:
"Senators Announce New Provisions & Cosponsors to Bipartisan Sentencing Reform and Corrections Act"
The title of this post is the title of a US Senate Judiciary Committee press conference that took place this afternoon and can be watched at this link (though you need for fast-forward to about the 11:45 mark of the recorded video). This Reuters article provides these highlights:
A revised criminal justice reform bill moved closer to a full U.S. Senate vote on Thursday when it gained support from more Republicans after being stalled for months in Congress.
In a legacy-shaping issue for President Barack Obama, the measure's sponsors announced four new Republican co-sponsor senators and a new version of the bill at a press conference in the Senate. The measure now has 37 co-sponsors, according to Senate Judiciary Committee Chairman Charles Grassley. Grassley said he had been waiting for the bill to be finalized before asking Senate Majority Leader Mitch McConnell to bring it up for a full Senate vote, but that "it is time for those discussions to start right now."
As revised, it still lowers mandatory minimum sentences for some non-violent federal drug offenders, but it no longer applies to anyone convicted of a serious violent felony. That change was a response to conservative critics of the bill, which is central to Obama's efforts to overhaul the country's federal criminal justice system and reduce prison overcrowding. That effort has been a rare example of Republican and Democratic agreement in the polarized Congress.
The bill's advocates have said they hope the revisions and new co-sponsors, such as Republican senators Mark Kirk of Illinois and Steve Daines of Montana, will convince McConnell to bring up the bill for a Senate vote. Daines and Kirk lent their support after adding minor requirements, including a provision that savings from it go toward purposes such as fighting gangs of national significance.
After a group of conservative Republican senators led by Tom Cotton of Arkansas claimed in January the reforms would release violent felons, the bill’s authors began excising parts of the proposal that eased the sentences of violent criminals. The bill now includes a new mandatory minimum sentence for crimes involving the opiate fentanyl, mirroring parallel sentencing reforms that await a floor vote in the U.S. House of Representatives.
The House legislation is likely to contain changes to "mens rea" laws that govern criminal intent, said Senator John Cornyn, a sponsor of the Senate bill, at Thursday's press conference. Mens rea reform was excluded from the Senate measure because its authors were divided on the issue. Democratic lawmakers generally oppose strengthening mens rea requirements on the grounds it would enable more corporate malfeasance as it is difficult to prove the "intent" of a corporation.
To exclude violent criminals from the Senate bill, the authors removed a section that lowered minimum sentences for unlawful gun owners with three prior convictions for violent felonies or serious drug offenses, known as “armed career criminals.” Such criminals represent nearly a fifth of the 12,908 current inmates who would have been eligible for resentencing under the old bill, according to the U.S. Sentencing Commission.
The folks at FAMM have this press release responding to this news, headlined "Strengthen, Don’t Weaken, Sentencing Reforms," which includes this quote from FAMM leader Julie Stewart:
“It’s hard not to get caught up in the enthusiasm of having a tenacious group of bipartisan Senators seek sentencing reform. However, this bill was very modest to begin with, and Congress should be strengthening it, not weakening it. In the last several days, Oklahoma, Maryland, and Iowa lawmakers have passed bold reforms that reduce or eliminate mandatory minimum drug sentences. Congress should be following that example, capitalizing on public support for sentencing reform and passing significant reform that will seriously impact who goes to prison and for how long."
The folks at the Brennan Center have this press release headlined "Senate Should Swiftly Pass Revised Sentencing Bill."
These developments make me somewhat more optimistic that a big sentencing reform bill will get to Prez Obama's desk in the next few months, but I am still not quite ready to say enactment of such reforms are now probable.
A few 2016 related posts:
- Politico reporting that (minor?) changes are being made to Senate's SRCA bill to appease GOP critics
- Mark Holden, GC at Koch Industries, makes "The Factual Case for Criminal Justice Reform"
- Former AG Mukasey delivers "clear" message to GOP on SRCA: "Law enforcement asks you to pass this bill."
- Is the Supreme Court fight already starting to "doom" federal statutory sentencing reform?
- Notable new comments and commitments on criminal justice reform from GOP House Speaker Paul Ryan
- Quick (inside-the-Beltway) reflections on the latest odds of those inside-the-Beltway getting federal sentencing reform done in 2016
Candidate Clinton promises to "institute gender-responsive policies in the federal prison system and encourage states to do the same"
Yesterday in this post I sought readers' perspectives on whether Hillary Clinton or Donald Trump would likely end up being a "better" sentencing President. Perhaps realizing I am not the only wondering on this front, today CNN published this notable new commentary authored by Hillary Clinton under the headline "Women and prison -- the cost in money and lives." Here are some extended excerpts (with one sentence emphasized):
Mass incarceration has torn families apart, impoverished communities, and kept too many Americans from living up to their God-given potential. But mass incarceration's impact on women and their families has been particularly acute — and it doesn't get the attention it deserves....
The United States' prison and jail population includes 215,000 women — nearly one-third of all female prisoners worldwide, and 800% more women than were in prison four decades ago. African-American women are more than twice as likely to be in prison than white women.
But women aren't the only ones affected when they are sent to prison. The high number of women in prison — and the long lengths of their sentences — destabilizes families and communities, especially their children. Since 1991, the number of children with a mother in prison has more than doubled. Mothers in prison are five times more likely than fathers in prison to have to put their children in foster care while they serve their sentences.
We can't go on like this. It is time we reform our broken criminal justice system. First, we need to reform policing practices, end racial profiling, and eradicate racial disparities in sentencing. Second, we need to promote alternatives to incarceration, particularly for nonviolent and first-time offenders, so families aren't broken up. We need to improve access to high-quality treatment for substance abuse, inside and outside the prison system, because drug and alcohol addiction is a disease, not a crime — and we need to treat it as such.
And third, we need to be deliberate about understanding the different paths that can land women in prison, be more attentive to women's unique needs while they are incarcerated, and do more to support women and their families once they are released. I will institute gender-responsive policies in the federal prison system and encourage states to do the same — because women follow different paths to crime than men, and face different risks and challenges both inside and outside the prison walls, and every part of the justice system, from sentencing to the conditions of confinement to re-entry services, should reflect women's unique needs.
Research shows that women's relationships ... are often a significant risk factor for becoming involved with the justice system. Most women in prison are there because of nonviolent drug or property crimes. Over 60% of them report drug dependence or abuse in the year before they went to prison. Many of them grew up in abusive households ... and they are more likely than men in prison to have experienced sexual abuse or trauma in their life before prison.
And too often, a woman and her children continue to live with the consequences even after she has served her time and paid her debt to society. Because formerly incarcerated people face limited job opportunities, an entire family is effectively punished by a woman's time in prison. "Banning the box" — preventing an employer from asking about criminal history at the initial application stage, so that individuals have a chance to compete for jobs on a fair basis — is a necessary and important step, but it isn't enough. In addition to job training and interview coaching, women returning to their communities after years behind bars need safe housing for themselves and their children, continuity of health care, and above all a supportive community....
Women and the families they support are being crushed by a criminal justice system that costs far too much — in state and federal budgets, and in lives derailed and economic opportunity lost — without making us safer. Too often, people are prejudiced against the formerly incarcerated — in employment, in housing, in everyday interactions. We say we are a nation of second chances — and it's time that we act like it.
I am, generally speaking, quite supportive of "gender-responsive policies" in our criminal justice systems, particularly because there are lots of evidence-based reasons for viewing (and sentencing) most female offenders as much lesser threats to public safety than most male offenders. That said, I am not entirely sure what specific sentencing laws and prison policies need to be changed dramatically in federal and state systems in order to make them more "gender-responsive." Should (and legally could) a Prez Clinton institute an executive order providing that federal resources earmarked for prison treatment and post-prison reentry programs must be used first for all female federal offenders before any male offenders have access to these programs?
April 28, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (4)
Oklahoma joins long list of "red states" enacting significant sentencing reforms
As reported in this local article, headlined "Criminal justice reform bills signed into law by Oklahoma governor," another state known for its conservative politics should now also be known as another state that has enacted significant reforms intended to soften its sentencing system and reduce its prison population. Here are the details:
Four criminal justice reform measures were signed into law by Gov. Mary Fallin on Wednesday. The action comes at a time when the state’s prison system is operating at 122 percent of capacity.
“We want to be tough on crime, but we want to be smart on crime,” Fallin said.
The criminal justice reform bills she signed Wednesday are:
- House Bill 2472, which gives prosecutors discretion to file charges for crimes that are not subject to the 85 percent rule as misdemeanors instead of felonies. The 85 percent rule requires that those convicted of certain crimes, including rape and murder, serve at least 85 percent of their sentences before they can be considered for release.
- HB 2479, which reduces the mandatory minimum sentence for drug offenders charged only with possession.
- HB 2751, which raises the threshold for property crimes classified as felonies to $1,000 from $500.
- HB 2753, which would broaden defendants’ eligibility for drug courts and community sentencing. The measures are designed to curb the growing prison population.
“These measures are just the beginning,” said Rep. Pam Peterson, R-Tulsa, the House author of the bills. Fallin said it costs just under $20,000 a year to incarcerate an offender and about $5,000 a year for one defendant in drug court.
House Speaker Jeff Hickman, R-Fairview, said the state still has a crisis in corrections and incarceration. “This is not the end of the mission,” he said, adding that other criminal justice reform bills are working their way through the legislative process.
Former Tulsa County District Attorney Tim Harris attended the bill signing in the Blue Room at the Capitol. The measures give the state more options to prevent Oklahomans from becoming convicted felons and help them get the treatment they need, Harris said. “It is not soft on crime,” he said. “It holds criminals accountable without breaking the bank. It is cost neutral to the taxpayer right now.”
Oklahoma County District Attorney David Prater said the state needs to take steps to move mental health and substance abuse treatment to the front end. “With measures like this, I do believe that ultimately we will see a decrease in the prison population while not increasing violent crime, and actually this will have a positive impact, I believe ultimately, on public safety,” Prater said.
Lots of discussion of felon disenfrachisement after Virginia Gov boldly restores voting rights
A new set of commentaries about felon disenfranchisement are among the valuable consequences of Virginia's Gov using his executive clemency power to restore voting rights to more than 200,000 former felons. Here is a sampling:
From The Atlanic here, "The Racist Roots of Virginia's Felon Disenfranchisement: A century ago, the commonwealth's leaders weren't circumspect about their motives."
From the Chicago Tribune here, "Why felons should be allowed to vote"
From Fox News here, "Virginia's governor, Hillary Clinton and the felon vote"
From Huffington Post here, "Americans Don’t Think Ex-Offenders Should Lose Their Right To Vote: Millions aren’t allowed to vote, but Americans want that to change."
Prior related posts:
- Virginia Governor, bolding using his executive clemency authority, restores voting rights to over 200,000 former felons!!
- Virginia Gov explains his big decision to use his clemency power to restore franchise
"A Legal Definition of Leadership: Understanding Section 3B1.1 of the Federal Sentencing Guidelines"
The title of this post is the title of this new paper now available via SSRN authored by Marin Roger Scordato. Here is the abstract:
This Article offers a formal legal definition of “leadership” drawn from an unusual quarter: criminal sentencing. Sentencing guidelines that include adjustments based on the extent to which a defendant was a “leader” have spawned hundreds of appellate court cases attempting to develop a thoughtful, workable definition of the term. Reviewing these cases, this Article offers 25 separate characteristics courts have found material to a legal judgment as to whether an individual has been a leader within a criminal enterprise.
Eleven of these characteristics can be organized into three categories, which operate on the boundaries of the leadership concept. The first category contains those circumstances courts have found do not, by themselves, confer leadership status. For example, courts have found that controlling property alone does not make one a leader. The second category of leadership characteristics are those circumstances that are not, in themselves, sufficient to show a defendant is not a leader. For example, there may be more than one leader in a group, so the identification of one or more other leaders in a group does not preclude the possibility of characterizing a defendant as a leader as well. A third category of leadership focuses on the external group functions of leadership, the ways in which a leader monitors and mediates the points of contact between the group as a separate entity and important elements outside the group.
The remaining 14 characteristics comprise a fourth category that resides at the center of what courts find establishes leadership status. To courts, the gravamen of leadership is the control, organization, and responsibility for other group members. Examples of characteristics in this category are that a leader inspires members to make sacrifices for the group, possesses decision-making authority within the group, carries ultimate responsibility for the group’s success, and resolves disputes within the group.
This Article concludes by noting this formal legal definition of leadership, given its basis in criminal sentencing, has generated a set of leadership characteristics all of which appear to enjoy the possibility of general applicability to a broad range of factual contexts including standard business settings, but still notes how very far the formal legal definition of leadership is from conventional definitions grounded explicitly in a moral, value-laden context.
April 27, 2016
Reviewing the final SCOTUS oral argument week that was full of criminal justice issues
As noted in this post last week, three of the final five cases that the Justice were scheduled to hear during this last week of the Term's oral arguments involved criminal justice issue. The highest-profile and perhaps most consequential of these cases was argued today concerning the public corruption verdict against former Virginia Gov Bob McDonnell. Thanks to the always great folks at SCOTUSblog, I can link here to two posts about the McDonnell and to single post on the two other cases heard yesterday:
Intriguing intricate split Seventh Circuit panel discussing Indiana sentencing appeals and ineffective assistance of appellate counsel
A split Seventh Circuit panel handed down an interesting habeas opinion yesterday in Miller v. Zatecky, No. 15-1869 (7th Cir. April 26, 2016) (available here). One needs to be a hard-core habeas AND state sentencing fan to be fully engrossed by all the substantive issues covered in the majority panel opinion or the dissent. Still, there is some interesting extra (law-nerd?) spice in both opinions thanks to good work by their authors --- Circuit Judge Easterbook and District Judge Lynn Adelman (sitting by designation), respectively.
What struck me as blog-worthy from Miller, especially because I spend a lot of time thinking about how to make appellate review of federal sentences efficient and effective in a post-Booker world, was this passage and footnote from the dissent about Indiana state sentencing appeals:
Indiana appellate courts are authorized to independently “review and revise” sentences. Ind. Const. Art. 7, § 4; Pierce v. State, 949 N.E.2d 349, 352 (Ind. 2011). This authority is implemented through Indiana Appellate Rule 7(B), which provides that the appellate court may revise a sentence if after due consideration of the trial court’s decision the appellate court finds the sentence is inappropriate in light of the nature of the offense and the character of the offender. Pierce, 949 N.E.2d at 352. As Miller shows in his brief, Indiana appellate courts have not hesitated to use this authority; he cites no less than 11 cases in which Indiana appellate courts shortened sentences in similar cases.[FN 2]
[FN 2] Pierce v. State, 949 N.E.2d 349 (Ind. 2011) (revising 124 year sentence on four counts of child molestation to 80 years); Sanchez v. State, 938 N.E.2d 720 (Ind. 2010) (revising total sentence of 80 years on three counts of child molestation to 40 years); Harris v. State, 897 N.E.2d 927 (Ind. 2008) (revising consecutive sentences of 50 years on two counts of child molesting to concurrent); Smith v. State, 889 N.E.2d 261 (Ind. 2008) (revising four consecutive sentences of 30 years each, a total of 120 years, to a total of 60 years); Monroe v. State, 886 N.E.2d 578 (Ind. 2008) (reducing sentence of 100 years to 50 years); Estes v. State, 827 N.E.2d 27 (Ind. 2005) (revising sentence of 267 years on 14 counts of child molesting and sexual misconduct with a minor to 120 years); Serino v. State, 798 N.E.2d 852 (Ind. 2003) (revising sentence of 385 years on 26 counts of child molestation to 90 years); Kien v. State, 782 N.E.2d 398 (Ind. Ct. App. 2003) (revising consecutive sentences of 40 years on three counts, a total of 120 years, to 80 years total); Ortiz v. State, 766 N.E.2d 370 (Ind. 2002) (revising 30 year consecutive sentences on child molesting counts to run concurrently); Haycraft v. State, 760 N.E.2d 203 (Ind. Ct. App. 2001) (revising 190 year sentence for child molesting and related offenses to 150 years); Walker v. State, 747 N.E.2d 536 (Ind. 2001) (revising consecutive sentences of 40 years on two counts of child molesting to be concurrent).
Former House speaker gets black hole of federal prison for 15 months after sentencing supernova
In this post yesterday, I explained why I called today's sentencing of former House Speaker Dennis Hastert a sentencing supernova. Today, this ABC News piece reports on the sentencing events and outcome in federal court this morning:
Former Speaker of the House John Dennis Hastert was sentenced today in federal court to 15 months in prison and two years of supervised release after he faced one of his accusers, who identified himself publicly for the first time as Scott Cross, a former Yorkville High School wrestling student.
Cross, who was until now identified in court documents only as “Individual D,” took the stand and introduced himself as a father, husband and businessman. Cross described his abuse by Hastert as “his darkest secret as he [Hastert] became more powerful.”
Hastert has also been required to comply with a sex offender treatment program. The sentence follows an almost year-long hush money case hinging on payments Hastert made to a student he allegedly sexually abused while acting as a wrestling coach at Yorkville High School in Illinois.
Cross said Hastert had "offered massages" to him in order to help him lose weight. He went on to describe a one-time incident when he was 17, saying Hastert "grabbed my penis and began to rub me. Stunned, I pulled up my shorts and ran out of the locker room.” Cross said he decided to testify after Hastert and his defense team reached out to his brother, Illinois politician Tom Cross, for a letter of support. Tom Cross served in the Illinois House of Representatives for 22 years. Scott Cross was on the varsity wrestling team at Yorkville High School when Hastert was a coach in the 1970s.
Using a walker, Hastert approached the judge. “I am deeply ashamed to be standing here today,” he said. “I know I am here because I mistreated some of my athletes that I coached. ... I want to apologize to the boys I mistreated. I was wrong and I accept that.” Judge Durkin referred to Hastert as a "serial child molester" while delivering the sentence.
The man formerly second in line for the presidency was wheeled into court this morning by attendants. In a January court filing, Hastert’s lawyers revealed that the former speaker’s health had rapidly declined following a stroke and a blood infection, and that he now needed “assistance for most daily activities.” Hastert technically faced a maximum penalty of five years.
Dozens of Hastert’s supporters have written letters to the judge asking for mercy, including former Republican Congressional leader Tom Delay, who called Hastert “a man of integrity. He loves and respects his fellow man.” CIA Director Porter Goss called Hastert “a rock solid guy with center-of-the country values.”
Hastert pleaded guilty in October to violating bank laws in connection with paying out hush money over the years allegedly to one of his victims, and in April his defense team made a filing publicly acknowledging the “harm” he caused to “others” for “misconduct that occurred decades ago.”
Seeking serious, sober, sophisticated substantive analysis: would Clinton or Trump be a "better" sentencing President?
After last night's primary results, I have resolved myself to the less-than-thrilling prospect of being presented in November with a Prez voting choice between Hillary R. Clinton and Donald J. Trump. On some issues unrelated to criminal justice systems, it likely will be easy to figure out which candidate is more likely to pursue (and achieve) policy developments that are more to my liking as a (moderate?) libertarian. But, as the question in the title of this post is meant to suggest, I am genuinely unsure whether Clinton or Trump would end up being a "better" sentencing President. (I have put the term "better" in quotes here because I fully recognize that lots of different people have lots of different views about what makes for a good President on sentencing issues; I hope thoughtful folks with lots of different prespectives will chime in.)
Back in 2008, I believed that then-candidate Barack Obama would prove to be a "better" sentencing President than Hillary Clinton or John McCain. (A big factor in this judgment was not just the Clintons' criminal justice track record, but especially Hillary's worrisome opposition to retroactive implementation of the small reduction in crack guideline sentences that the US Sentencing Commission completed in 2007.) In April 2012, based in part on the fact that Prez Obama did not live up to my hopes during his first term, I wrote this Daily Beast commentary making the point that "given policy and practical developments of recent years, there’s a good argument to be made that a President Romney could prove to be more likely to make real and long-term reforms to American criminal justice." In that commentary, I urged then-candidate Romney to "embrace what Right On Crime calls the 'conservative case' for criminal-justice reform, and in doing so appeal to groups of independent and minority voters (especially young ones) while demonstrating a true commitment to some core conservative values about the evils of big government."
Of course, Romney did not take my advice (and lost), and Prez Obama has proven much more committed to working on sentencing issues during the second half of his second term. Still, perhaps ironically, I think a Prez Romney would have ended up supporting AND getting enacted the kinds of federal statutory sentencing reforms that have been bogged down in Congress in recent years. I say this based in part on legislative reforms in the states, including my own Ohio: states led by GOP govs have generally been more inclined to enact significant legislative sentencing reforms.
I set this all out because I genuinely think, no matter what your vision of "better" sentencing, it is now time to start some serious, sober and sophisticated substantive assessments what kind of sentencing President Hillary Clinton or Donald Trump might prove to be. In many ways, both seem to me to be comparable (and annoying) enigmas on sentencing law and policy: in the past, both have generally said only whatever seemed politically useful at the time of their statements; in the future, both are sure to face challenges getting Congress to enact whatever criminal justice reform agendas they might want to pursue. So, I hope anyone who care a lot about these issues will help me try to start a robust, rigorous conversation on this front.
(For the record, I expect that, after nominations and party platforms become official this summer, I will do a series of Clinton vs. Trump posts on specific sentencing issues like the death penalty, clemency, and drug/white-collar sentencing.)
"Unlicensed & Untapped: Removing Barriers to State Occupational Licenses for People with Records"
The title of this post is the title of this lengthy new report from the National Employment Law Project. Here is an excerpt from its executive summary:
This paper examines the significant flaws in state occupational licensing criminal background check requirements. One barrier to employment that regularly appears in state occupational licensing laws is the blanket ban, which automatically disqualifies people with certain records. As a gauge for the frequency of blanket bans in licensing laws across the nation, the ABA Inventory reports over 12,000 restrictions for individuals with any type of felony and over 6,000 restrictions based on misdemeanors. In addition, the ABA Inventory reports over 19,000 “permanent” disqualifications that could last a lifetime and over 11,000 “mandatory” disqualifications, for which licensing agencies have no choice but to deny a license.
Another aspect of the barriers facing workers with records is the prevalence of overly broad criminal record inquiries. The rationale for far-reaching inquiries is ostensibly compelling — licensing agencies seek robust information to advance public safety and health. No research, however, supports the persistent misconception that a workplace is less safe if an employee has a past record. Thus, even seemingly rational inquiries frequently operate as overly broad bans against anyone with a record.
License applicants with records face additional challenges presented by a lack of transparency and predictability in the licensure decision-making process and confusion caused by a labyrinth of different restrictions. Requirements for a single occupation vary widely across states, as do the standards applied to evaluate past offenses. Further complicating matters, the statutory language and procedures governing individual, or classes of, professions often differ from more general state licensing statutes.
April 26, 2016
Fascinating backstory behind big donation behind new "Criminal Justice Reform Center" at SMU Dedman School of Law
This local story out of Dallas, headlined "Deason and Koch give $7 million to SMU Dedman Law for criminal justice reform," tells an old criminal justice story from decades ago that in part explains the origins of a new criminal justice research center. Here are the details:
Dallas businessman Doug Deason was 17-years-old when he held a party at a neighbor’s house while they were gone. Booze flowed. Music was loud. Cops were called. “The couple’s son gave me a key and things got out of hand,” said Deason, who was charged with felony burglary.
Deason’s parents hired a well-connected criminal defense lawyer, who convinced prosecutors to lower the charge to misdemeanor trespassing and to agree to expunge his record if he stayed clean for a year. “A felony could have ruined my life, as I would have been forced to check that box on every school and job application,” said Deason, who is the son of Affiliated Computer Services founder Darwin Deason. “There are a lot of people who make a mistake like I did and end up paying for it for their entire life.”
That was 1979 in northwest Arkansas. Tuesday in Dallas, Deason announced that he and his family’s foundation donated $3.5 million to Southern Methodist University’s Dedman School of Law to create a legal institute that conducts innovative research and educational outreach efforts designed to promote criminal justice reform in Texas and beyond.
The Deason Family Criminal Justice Reform Center will conduct statistical and analytical studies ranging from pre-trial procedures, sentencing disparities and pre-trial diversion, abuses of asset seizure and forfeiture laws and wrongful convictions.
SMU Dedman Law Dean Jennifer Collins said the Deason gift combined with a matching $3.5 million contribution by the Charles Koch Foundation will fully fund the center, which will be located on the law school campus. “We hope this center generates statistical research that is part of the national conversation about criminal justice reforms,” Collins said. “The plan is to bring in visiting faculty members who are experts and to get students involved in research and to generate course ideas that allow students to interact with the experts.”
“This tremendous opportunity is happening only because of Doug Deason’s passion for this issue and his passion for SMU,” she said. Collins said the combined $7 million allows the law school to hire an executive director, an outreach director and additional faculty in the field....
Criminal justice experts say the center should investigate the effectiveness of prison educational and training programs. They point out that the Georgia Department of Corrections once had a program that allowed inmates to study and obtain college degrees or associates degrees in various tradecrafts while incarcerated. The recidivism rate for such inmates when they were released was less than 10 percent while the overall prison population recidivism rate exceeded 60 percent. However, the program was halted after victim’s rights groups and conservative Republican political leaders condemned the efforts as being soft on crime.
Deason, himself a Republican, said many in his own political party are shortsighted when it comes to “doing what’s right and what’s effective” in the area of criminal justice. He said the decision by Virginia Gov. Terry McAuliffe, a Democrat, to restore voting rights to 200,000 former felons who have served their entire sentences and remained clean is “awesome.”
“If they’ve paid their debt to society and taken the necessary steps, then why not give them a better chance to re-emerge into society to live a successful and dignified life,” he said.
Deason, who is the president of Deason Capital Services, has pushed Congress to reduce mandatory minimum sentences of non-violent drug offenders. The proposal passed the U.S. Senate Judiciary Committee 15 to 5. He pointed out that Texas Sen. John Cornyn voted for the bill, while Sen. Ted Cruz voted against it.
“There’s an extreme right wing that doesn’t understand this issue or they are politically afraid to do the right thing,” Deason said, which he said is ironic because he and the Koch brothers support the measure with President Obama. “I was lucky enough to get a second chance,” he said. “Other less fortunate people deserve that same opportunity.”
You be the judge for "sentencing supernova": what punishment for former House speaker Dennis Hastert for structuring (and sex) offenses?
I have decided to call tomorrow's scheduled sentencing for former House speaker J. Dennis Hastert a "sentencing supernova." As science geeks know, and as this Wikipedia entry explains, a supernova is "an astronomical event that occurs during the last stellar evolutionary stages of a massive star's life, whose dramatic and catastrophic destruction is marked by one final titanic explosion." I consider any former speaker of the House to be a "massive star" and I look at his coming sentencing as the culmination of a "dramatic and catastrophic destruction" as it was slowly unearthed by federal authorities that he was committing federal banking offenses in order to pay hush money to one (of now it appears many) of Hastert's long-ago sex abuse victims.
I also am thinking of Hastert's sentencing in "supernova" terms because there are so many dynamic and debatable sentencing issues swirling around his case. This recent Chicago Tribune article, headlined "More than 40 letters in support of Hastert made public before sentencing," reviews just some of the sentencing issues in play (with my emphasis added):
More than 40 letters in support of former U.S. House Speaker Dennis Hastert — including one from his former congressional colleague Tom DeLay — were made public Friday evening in advance of his sentencing next week on hush money charges.
"We all have our flaws, but Dennis Hastert has very few," wrote DeLay, the Texas Republican who served as majority leader under Hastert in the early 2000s. "He doesn't deserve what he is going through. I ask that you consider the man that is before you and give him leniency where you can."...
Also included were letters from Hastert's wife, Jean, and sons Joshua and Ethan, who wrote of his devotion to his family and his good deeds as a coach, teacher and later as a politician. They also wrote of concerns over his failing health — Hastert's lawyers have said he suffered a stroke and near-fatal blood infection last year that left him hospitalized for weeks. "This has taken a terrible toll on our family," his wife wrote. "I am particularly worried that if he is taken from his home and the care he needs, his health will continue to deteriorate."
Hastert, 74, faces probation to up to five years in prison when he is sentenced Wednesday, although his plea agreement with prosecutors calls for a sentence of no more than six months behind bars. He pleaded guilty in October to one count of illegally structuring bank withdrawals to avoid reporting requirements, admitting in a plea agreement that he'd paid $1.7 million in cash to a person identified only as Individual A to cover up unspecified misconduct from decades earlier.
In a bombshell sentencing memorandum filed earlier this month, prosecutors alleged Hastert had sexually abused at least four wrestlers as well as a former team equipment manager when he was coach at Yorkville [more than 35 year ago]. The abuse allegedly occurred in hotel rooms during team trips and in almost-empty locker rooms, often after Hastert coaxed the teens into a compromising position by offering to massage them, prosecutors said. The filing also alleged that Hastert set up a recliner chair outside the locker room showers in order to sit and watch the boys....
When he was confronted by FBI agents about the unusual bank withdrawals in December 2014, Hastert lied and said he was just keeping his money safe because he didn't trust security at the banks, according to prosecutors. Later, he accused Individual A of extorting him by making false accusations of sexual abuse and even agreed to record phone conversations for the FBI — a gambit that fell apart when agents realized it was Hastert who was lying, according to prosecutors.
I have highlighted above the notable fact, thanks to a shrewd plea deal in this case, Hastert's punishment is statutorily limited to a prison sentencing range of zero to five years and that prosecutors are bound to recommend a sentence of no more than six months imprisonment. Prosecutors cut this deal, I suspect, because they realize that Hastert's old age and poor health and recent history of public service would make unlikely that a judge would sentence him to a very lengthy prison term.
That all said, it appears nearly undisputable that Hastert did sexually abuse numerous boys while serving as a wrestling coach decades ago and essentially got away with these crimes. (It is my understanding that the statute of limitations has passed so that he could not now be prosecuted for them.) His more recent bank/money structuring crimes are, of course, connected to these long-ago terrible crimes and Hastert also actively lied to public officials in a manner that could also have readily brought separate serious criminal charge for obstruction of justice.
Based on all these facts, I could make reasonabe arguments for sentences ranging from probation to five years, and I also could imagine lots of arguments for creative alternative sentencing terms instead of (or in addition to) a prison stint. For example, I believe some members of the community have urged the judge to require Hastert to make significant payment to groups that work with sexually abused boys. And perhaps one could strain to read federal law to argue that all of those abused by Hastert long ago are still technically victims of his more recent offenses and thus should be able to obtain some kind of restitution through his sentencing. (This would seem to be stretch, but there are reports that some other "victims" are planning to testify at Hastert's sentencing.)
So I sincerely wonder, dear readers, what supernova sentence you think should be impose in this case?
April 26, 2016 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (37)
Detailing the death penalty's desuetude in two notable states
I recent came across these two notable extended articles discussing the notable extended difficulties that two notable states have recently experienced in trying to get any of their condemned death row murderers to an execution chamber. Here are the headlines with links and subheadlines from the pieces:
From Arizona: "Is the death penalty in Arizona on life support?: A judge will rule any day now on whether Arizona can resume executions; meanwhile, the state's limited drug supply is about to expire. Where does that leave capital punishment?"
From North Carolina: "These days, NC’s death row inmates die of natural causes: Nine have died of natural causes since the state’s last execution in 2006; Death row, like the prison population overall, is aging; The oldest death row inmate, Blanche Moore, is now 83"
Virginia Gov explains his big decision to use his clemency power to restore franchise
I noted in this post last Friday that Governor Terry McAuliffe of Virginia used his executive clemency power to restore voting rights to more than 200,000 former felons. Since then, I came across this Medium piece in which the Gov explains his actions. Here are excertps:
We are all familiar with Virginia’s long history of discrimination at the ballot box, culminating in the 1902 constitution establishing a poll tax, literacy and knowledge tests, and broader restrictions on individuals with felony convictions.
The 1965 Voting Rights Act eliminated many of those barriers. However, Virginia continued to enforce one of the most restrictive laws in the country regarding the restoration of voting and civil rights for individuals who have been convicted of felonies but who complete their sentences and probation or parole. Over the last two years, our administration has worked tirelessly to simplify the restoration process. We restored the rights of more than 18,000 Virginians, which is more than the past 7 governors combined over their full four-year terms.
We worked to reform the process by reducing the waiting period for more serious offenders from five years to three, classifying all drug-related convictions as non-violent, shortening the application for more serious offenders from 13 pages to one page, removing a requirement that individuals pay their court costs before they can have their rights restored, and ensuring that a notation will be included in an individual’s criminal record designating that his or her rights have been restored.
While I am proud of the progress we have achieved, I wasn’t satisfied to leave so many men and women in our Commonwealth barred from full citizenship. [On Friday] we restored the voting and civil rights of more than 200,000 Virginians who have served their time and completed supervised release.
This action means that these disenfranchised Virginians will immediately regain the right to register to vote, to run for office and to serve on a jury. It means that these Virginians, who have served their sentences and returned to live in our communities, will no longer be second class citizens who must jump through onerous hoops to have a voice in our society. And it means that Virginia can close a difficult chapter in our history and open a new one where, instead of building barriers to the ballot box, we work together to break them down.
Some have suggested this action was politically motivated, or that it is wrong to restore the rights of felons who have committed more serious crimes, even if they have served their sentences. I would encourage those critics to meet with some of the men and women whose rights we have restored throughout my term. Who have reentered society seeking a second chance and who have waited years, sometimes decades, to become whole members of our society again. And who have broken down in tears as I signed their restorations on “the best day of their lives.”
If we are going to build a stronger Virginia, we must open doors to participation in civic life for people who return to society seeking a second chance. We must welcome them back and offer the opportunity to build a better life by taking an active role in our democracy. I believe it is time to cast off Virginia’s troubling history of injustice and embrace an honest, clean process for restoring the rights of these men and women.
Prior related posts:
- Virginia Governor, bolding using his executive clemency authority, restores voting rights to over 200,000 former felons!!
"Roadmap to Reentry: Reducing Recidivism Through Reentry Reforms at the Federal Bureau of Prisons"
The title of this post is the title of this new programming publication from the US Department of Justice. Here is part of its "Overview":
Each year, more than 600,000 citizens return to neighborhoods across America after serving time in federal and state prisons. Another 11.4 million individuals cycle through local jails. And nearly one in three Americans of working age have had an encounter with the criminal justice system — mostly for relatively minor, non-violent offenses, and sometimes from decades in the past. Federal prisoners are held at the Bureau of Prisons (BOP), a law enforcement agency of the U.S. Department of Justice and the country’s largest and most complex prison system — housing nearly 200,000 prisoners in 122 federally-operated correctional institutions, 13 privately-operated secure correctional facilities, and a network of more than 175 community-based centers around the country....
The long-term impact of a criminal record prevents many people from obtaining employment, housing, higher education, and credit — and these barriers affect returning individuals even if they have turned their lives around and are unlikely to reoffend. These often-crippling barriers can contribute to a cycle of incarceration that makes it difficult for even the most wellintentioned individuals to stay on the right path and stay out of the criminal justice system. This cycle of criminality increases victimization, squanders our precious public safety resources, and wastes the potential of people who could be supporting their families, contributing to the economy, and helping to move our country forward.
Under the Obama Administration, the Department of Justice has already taken major steps to make our criminal justice system more fair, more efficient, and more effective at reducing recidivism and helping formerly incarcerated individuals return to their communities. In 2011, the Department established the Federal Interagency Reentry Council, a unique Cabinet-level effort to remove barriers to successful reentry. The Reentry Council, which now includes more than 20 federal departments and agencies, has developed significant policies and initiatives that aim not only to reduce recidivism, but also to improve public health, child welfare, employment, education, housing, and other key reintegration outcomes.
To ensure that all justice-involved individuals are able to fulfill their potential when they come home, Attorney General Lynch has launched a major effort to support and strengthen reentry programs and resources at BOP. These principles of reform — known as the Roadmap to Reentry — will be implemented throughout BOP, deepening and further institutionalizing the Department’s commitment to reentry. These efforts will help those who have paid their debt to society prepare for substantive opportunities beyond the prison gates; promoting family unity, contributing to the health of our economy, and sustaining the strength of our nation.
The Department has also established full-time positions to promote reentry work at BOP, the Executive Office for United States Attorneys, and the Office of Justice Programs; this includes hiring the first-ever Second Chance Fellow — a formerly incarcerated individual with deep expertise in the reentry field — to assist in development of reentry policy initiatives. BOP established a new Reentry Services Division to better equip inmates with the tools needed for success outside the prison walls, including expanded mental health and substance abuse treatment programs and improved work and educational opportunities. Through the community of U.S. Attorneys, the Department participates in reentry and diversion courts in more than 50 judicial districts nationwide. And the Department supports state, local, and tribal reentry efforts by providing resources under the Second Chance Act of 2007: the Department’s Office of Justice Programs has made nearly 750 Second Chance Act grants totaling more than $400 million, and established a National Reentry Resource Center that serves as a one-stop resource for returning citizens, advocates, and stakeholders.
April 26, 2016 in Collateral consequences, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)
April 25, 2016
Deep thoughts about sentencing, sentencing rules, and sentencing rule-making
I just came across these two interesting new papers on SSRN that raise lots of interesting and deep thoughts about both sentencing outcomes and sentencing rules and sentencing decision-making:
Confronting Political Disagreement About Sentencing: A Deliberative Democratic Framework by Seth Mayer & Italia Patti
Abstract: There is broad agreement that the American criminal sentencing system is deeply flawed, yet current theoretical frameworks for sentencing have failed to offer a way forward for reform. These frameworks have not faced up to political disagreement. Instead, they either try to impose disputed moral theories or they downplay normative considerations and seek to impose numerically consistent, rather than normatively justified, sentences. The failures of both approaches are in evidence in the process that led to the development of the United States Sentencing Guidelines.
This Article is the first to offer a framework to directly and effectively confront political disagreement. It draws on deliberative democratic conceptions of legitimacy to develop a framework for sentencing that addresses disagreement. Deliberative democracy offers a normatively grounded approach to managing disagreement through collective reasoning, which aims to place the legal system under public control. This Article articulates criteria for evaluating legal systems from the perspective of a particular conception of deliberative democratic legitimacy and offers reforms to enable the current system to better embody those criteria.
Rules, Standards, Sentencing, and the Nature of Law by Russell Covey
Abstract: Sentencing law and practice in the United States can be characterized as an argument about rules and standards. Whereas in the decades prior to the 1980s when sentencing was largely a discretionary activity governed only by broad sentencing standards, a sentencing reform movement in the 1980s transformed sentencing practice through the advent of sentencing guidelines and mandatory minimum provisions. As a result, sentencing became far less standard-like and far more rule-like. Although reform proponents believed that this "rulification" of sentencing would reduce unwarranted sentencing disparities and enhance justice, it is far from clear that these goals were achieved. Indeed, the debate between sentencing reformers and their critics is a paradigmatic illustration of the limits of relying upon modifications of legal form to enhance substantive justice.
Building upon the work of legal theorists who have considered the rules versus standards conundrum, this article uses sentencing law as a lens to view some of the fundamental perplexities that bedevil law's grander aspirations -- for determinacy, fairness, even coherence itself. Because, it is argued, refinements in legal form will never achieve the substantive goals to which law strives, the Essay urges a turn away from formal equality and toward a conception of sentencing justice that is centered on process values such as respect for those affected by sentencing decisions, concern that all voices be adequately heard, and decision making that reflects the considered moral judgment of the decision maker.
New speech by Justice John Paul Stevens reflects on Justice Antonin Scalia and the Court's constitutional work before and after Apprendi
A helpful reader alerted me to this notable new speech given today by Justice John Paul Stevens at the Washington University School of Law. The speech is titled "Some Thoughts about a Former Colleague," and much of the discussion is a review of the McMillan, Watts, Apprendi, Harris, Blakely, Alleyne and Hurst decisions from the Supreme Court over the last three decades. The speech also notes disagreements between Justices Stevens and Scalia in the Second and Eighth Amendment contexts, and concludes with some comments about original intent as a mode of constitutional interpretations.
My quick review of the speech did not lead me to find any surprising revelations, but it did lead me to conclude that Justice Stevens is pleased that, in his words, a "consensus  has developed around Apprendi's rule since it was first announced in a 5-4 decision 16 years ago." I also found quite notable that the Booker decision did not get any mention in the discussion.
Notable dissent from Eighth Circuit panel ruling affirming re-imposed stat-max 10-year sentence for possessing unregistered sawed-off shotgun
A helpful reader alerted me to an intriguing ruling by a split Eighth Circuit panel today in US v. Webster, No. 15-3020 (8th Cir. April 25, 2016) (available here). Here is the key substantive paragraph from the majority per curiam ruling in Webster:
Webster’s challenge to the substantive reasonableness of his sentence is reviewed under a deferential abuse-of-discretion standard. See United States v. Feemster, 572 F.3d 455, 461 (8th Cir. 2009) (en banc). As Webster notes, the district court imposed the same sentence on remand as Webster received in the first sentencing, and this court identified in the first appeal several mitigating sentencing factors that indicated a reasonable probability Webster would have received a shorter sentence but for the sentencing error. See Webster, 788 F.3d at 893. However, the fact that this court “‘might reasonably have concluded that a different sentence was appropriate is insufficient to justify reversal of the district court.’” Feemster, 572 F.3d at 462 (quoting Gall v. United States, 552 U.S. 38, 51 (2007)). While “substantive review exists, in substantial part, to correct sentences that are based on unreasonable weighing decisions,” United States v. Kane, 639 F.3d 1121, 1136 (8th Cir. 2011) (quotation omitted), this court “must give due deference to the district court’s decision that the § 3553(a) factors, on a whole, justify the extent of the variance.” Feemster, 572 F.3d at 461-62 (quoting Gall, 552 U.S. at 51). In reimposing the 120-month sentence, the district court commented in part that the Guidelines did not adequately take into account the seriousness of the offense: Webster had discharged the subject firearm into a fleeing vehicle, narrowly missing the driver. See U.S.S.G. § 5K2.6 (stating that court may depart if weapon was used in commission of offense; extent of increase depends on dangerousness of weapon, manner it was used, and extent its use endangered others; discharge of firearm may warrant “substantial sentence increase”). In short, after careful review, this court cannot say that this is the “unusual case” where the district court’s sentence will be reversed as substantively unreasonable. See Feemster, 572 F.3d at 464.
Judge Bright's dissent from this decision by the majority is what really makes Webster worth a full read by sentencing fans. Here are excerpts that provide a taste for why (with emphasis in the original and some cites omitted):
[O]ur reversal on the basis of substantive unreasonableness is often left to a district court’s decision to vary below the Guideline range. Rarely, if ever, do we hold sentences above the Guideline range substantively unreasonable. The pattern of failing to reverse above-Guideline sentences on the basis of substantive unreasonableness perpetuates our broken sentencing system.
As discussed by Former Attorney General Eric Holder, the problem with the federal sentencing system is the “outsized, unnecessarily large prison population.” See Eric Holder, Attorney Gen. of the U.S., U.S. Dep’t of Justice, Remarks at the Annual Meeting of the American Bar Association’s House of Delegates (Aug. 12, 2013), available at http://www.justice.gov/iso/opa/ag/speeches/2013/ag-speech- 130812 .html. As the Attorney General stated, “too many Americans go to too many prisons for far too long, and for no truly good law enforcement reason.” Id. Our sentencing policy has also resulted in “harsher punishments” for “people of color” throughout the United States. Id. The White House recently highlighted the “decades of overly punitive sentencing policies” through the commutation of numerous prison terms....
Webster is an African-American man with a high school education. At the time of the offense, Webster had no employment record and came from a broken home. In spite of his adverse life circumstances, Webster has a limited criminal record with the lowest category criminal history score. At the resentencing hearing, Webster also informed the district court of his completion of a 14-hour drug treatment program, and attendance at both anger management and victim impact classes. (Resent’g Tr. 11- 12). Thus, in the year between Webster’s original sentence and the resentencing hearing, Webster showed the ability for successful rehabilitation....
Further, Webster was 20-years-old at the time of the offense. Since 2005, the Supreme Court, has consistently held young people are most likely to change during a period of incarceration. In fact, psychological research indicates the human brain does not reach its ultimate stage of development until adolescents reach their mid-twenties....
Based on the current move in this country to shorten federal sentences, coupled with Webster’s age , criminal history, education level, remorse, and efforts to rehabilitate himself, the district court’s punishment may well be excessive “under the totality of the circumstances in this case, judged in light of all of the § 3553(a) factors.” Kane, 639 F.3d at 1136. Therefore, I would vacate Webster’s sentence and remand for reconsideration consistent with this opinion.
"A Shared Sentence: The Devastating Toll of Parental Incarceration on Kids, Families and Communities"
The title of this post is the title of this recently-released policy report from The Annie E. Casey Foundation. Here is how the report's introduction get started:
The saying is all too familiar: Do the crime, do the time. But in America’s age of mass incarceration, millions of children are suffering the consequences of their parents’ sentences and our nation’s tough-on-crime practices.
These children feel the absence of that adult — whether it is several nights in jail or years in prison — in myriad ways, even if they weren’t sharing a home. They feel it when their refrigerator is bare because their family has lost a source of income or child support. They feel it when they have to move, sometimes repeatedly, because their families can no longer afford the rent or mortgage. And they feel it when they hear the whispers in school, at church or in their neighborhood about where their mother or father has gone.
Incarceration breaks up families, the building blocks of our communities and nation. It creates an unstable environment for kids that can have lasting effects on their development and well-being. These challenges can reverberate and multiply in their often low-income neighborhoods, especially if they live in a community where a significant number of residents, particularly men, are in or returning from jail or prison. And different obstacles emerge once parents are released and try to assume their roles as caregivers, employees and neighbors.
This report recommends policies and practices that put the needs of children of incarcerated parents first. We call on correctional systems, communities and state and local public agencies to help stabilize families and preserve their connections during incarceration — and successfully move forward once parents come home.
Republican National Committee adopts resolution urging criminal justice reform in Congress
This Daily Signal article, headlined "Republican Leaders Throw Weight Behind Prison Reform," reports on a notable development during the RNC's Spring Meeting in Florida last week. Here are the details:
The Republican National Committee [on Friday] adopted a resolution in support of reforming the nation’s criminal justice laws, in a significant sign of bipartisan consensus to undo mass incarceration in America. In the one-page resolution, obtained by The Daily Signal, the RNC commends conservative-led states that have adopted policies to reduce their prison populations — such as Texas, Alabama, and Georgia — and urged Congress to act as well.
“This is the Republican Party coming together and saying criminal justice reform is an issue that needs to be addressed, and I think it’s sending a message that the RNC wants to make certain Congress has this as one of its top priorities,” said Telly Lovelace, the Republican National Committee’s director for urban media.
Lovelace added: "It’s the first time the RNC has taken a significant step like this on criminal justice reform, as the issue is sweeping the country, with conservative states leading the way in adopting policies to deal with it. Criminal justice reform is an issue that impacts all Americans, no matter which part of the country they live in."
The RNC’s official position supporting prison reform was one of 10 resolutions announced to committee members today during the national GOP organization’s spring meeting in Hollywood, Fla.... Each resolution is voted on by nine committee members, including RNC Chairman Reince Priebus.
Criminal justice reform is thought to be one of the few areas where Congress and President Barack Obama can work together to enact a substantive law during a contentious election year. Both the Republican-led House and Senate judiciary committees have advanced legislation that would shorten prison sentences for low-level nonviolent drug offenders and allow well-behaved inmates to earn time off their prison terms.
But on the Senate side, some conservatives have argued that the Judiciary Committee’s proposal would allow violent felons the chance to be released from prison early. The bill’s authors, including Judiciary Chairman Chuck Grassley, R-Iowa, Majority Whip John Cornyn, R-Texas, and Mike Lee, R-Utah, have fought that characterization. They recently made revisions to the legislation to satisfy critics.
Mark Holden, a top lawyer at Koch Industries, one of the biggest proponents of criminal justice reform on the conservative side, says he hopes the Republican National Committee’s resolution pushes skeptical conservatives in Congress to support the effort. “The RNC position makes it clear that Republicans can and should continue to lead on this critically important issue as they have for the past several years,” Holden told The Daily Signal in an emailed statement...
In its resolution, the RNC notes that the federal prison population, over which Congress has jurisdiction, increased 734 percent from 1980 to 2015, while taxpayer dollar spending on the prison system spiked 595 percent in that same period. The resolution states that taxpayers “are not receiving the public safety return they deserve because lengthy prison terms increase recidivism rates for low-level offenders.”
In addition to supporting treatment options for drug addicts, and other policies to reduce the number of re-offenders, the RNC calls for “mens rea” reform. That would require prosecutors to prove that certain criminal suspects knowingly intended to break the law.
The text of this resolution does not yet appear to be posted on the RNC's website, but I will post it once it becomes available.
SCOTUS grants cert on two new criminal cases
The Supreme Court, as previewed here, is wrapping up the oral arguments of its current Term with a considerable amount of criminal law work. And today, via this new order list, the Justices took up two new criminal law cases for its docket next Term. Here are the cases and the issues via SCOTUSblog for the two cases taked up by the Justices today:
Issue: Whether a notice of appeal from a sentencing judgment deferring restitution is effective to challenge the validity of a later-issued restitution award.
Issue: Whether, in the bank-fraud statute, 18 U.S.C. § 1344, subsection (1)’s “scheme to defraud a financial institution” requires proof of a specific intent not only to deceive, but also to cheat, a bank, as nine circuits have held, and as petitioner argued here.
April 24, 2016
American Enterprise Institute leader explains why we need to reform "the status quo in criminal justice"
Arthur C. Brooks, president of the American Enterprise Institute (AEI), has this notable new commentary explaining the role his organization is playing in National Reentry Week and in broader criminal justice reform efforts. (For those who do not know, AEI is a public-policy group "committed to expanding liberty, increasing individual opportunity and strengthening free enterprisehe status quo in criminal justice," with GOP politicians like Dick Cheney and Peter Coors and many corporate titans on its Board of Trustees.) The piece is titled "Reforming the status quo in criminal justice," and here are excertps (with links and emphasis from the original):
On Monday morning, AEI is co-hosting a discussion on America’s criminal justice system with the White House and the Brennan Center for Justice. The event will kick off at 10:00 am EDT on Monday April 25 in the Eisenhower Executive Office Building, next door to the White House. You can livestream my introductory remarks and the entire event on the White House’s website, and our team will be sharing parts of it in real time on Twitter.
At first blush, this kind of event might seem a little unusual. A Democratic administration, a major university’s criminal justice center, and a free-enterprise-focused think-tank coming together to discuss mass incarceration? That kind of diverse collaboration is not exactly commonplace in Washington, D.C.
But we believe that collaboration and open discussion are possible across the political spectrum. We jump at opportunities to bring our principles into good-faith dialogue and debate with colleagues of all views on critical subjects. (For more on this subject, check out a recent interview I gave to the “TED Radio Hour” podcast.)
Data show that only about one-third of incarcerated Americans get to participate in any education, vocational, or pre-release programs while behind bars. One professor who studies our prison population estimates that roughly half of all people in prison are functionally illiterate. And partially as a result of these factors, roughly two-thirds of all parolees wind up back in prison within three years of their release.
To be sure, excessive spending and economic inefficiency are serious consequences of this inefficient system. But the heaviest costs that America bears for this human capital tragedy are not material. They are moral. When we talk about a person who comes out of prison barely able to read and utterly unprepared for citizenship, we are talking about a person stripped of his basic dignity. When we see a person who is asked to re-enter productive society but has no plausible job prospects, we are looking at someone whose human potential has been badly stunted....
Through action and inaction alike, our society has effectively decided that there are millions of our brothers and sisters, the incarcerated and the formerly incarcerated, whom we simply do not need. At worst, we view them as human liabilities we must coexist with and manage at minimal cost; at best, as people we can tolerate and try to help. But as dormant assets to be enlivened and empowered? Hardly ever.
If we committed ourselves and our society to the moral principle that we need to need everyone, how would criminal justice policy change? That’s a question we at AEI are dedicated to exploring. My colleagues’ fascinating work on this topic already speaks for itself, and the year ahead will see us continue expanding our work on inmate education and re-entry.
A few recent related posts:
- Economists explain "Why Mass Incarceration Doesn’t Pay"
- "Department of Justice to Launch Inaugural National Reentry Week"
- White House Counsel on Economic Advisors releases big report providing "Economic Perspectives on Incarceration and the Criminal Justice System"
Hey Prez Candidate Kasich: why can't you figure out the formula to make capital punishment work (as it does in Georgia and Texas)?
The question in the title of this post is prompted by this AP article headlined "Georgia to carry out its 5th execution of the year this week." The piece reveals that the Peach State seems to have no problem securing lethal injection drugs for schedueld executions; meanwhile Ohio now has 25(!) condemned murderers scheduled for execution, but has been unable for three years to secure drugs to carry out these executions.
I am, generally speaking, a fan of Ohio Gov John Kasich, but in this arena he has not lived up to his campaign claims that he has "the formula" to make government work again. Before I continue with bashing of my governor, here are the basic 2016 executions details via the AP story from Georgia:
Georgia plans to carry out its fifth execution of the year on Wednesday when a man convicted in the 1998 killings of a trucking company owner and his two children is set to die. Daniel Anthony Lucas is scheduled to be executed at 7 p.m. Wednesday at the state prison in Jackson. Georgia executes inmates by injecting the barbiturate pentobarbital.
Lucas, 37, was sentenced to die in 1999 for the killings of Steven Moss, 37, his 11-year-old son Bryan and 15-year-old daughter Kristin, who interrupted a burglary at their home near Macon in central Georgia....
If Lucas is executed Wednesday, he will be the fifth person put to death in Georgia. That will match the record — set in 1987 and tied last year — for the most executions carried out in a calendar year in the state since the death penalty was reinstated nationwide in 1976. With eight months left in the year, it seems likely the state will set a new record this year.
His execution would also mean that Georgia has executed more inmates in a 12-month period than at any other time since reinstatement of the death penalty. Georgia has executed seven people in the last 12 months, starting with Kelly Gissendaner on Sept. 30. The only other time the state executed that many people in a 12-month period was when seven inmates were put to death between October 2001 and August 2002.
Only four states have carried out executions this year for a total of 12. Aside from the four executed in Georgia so far, six inmates have been put to death in Texas and one each in Alabama and Florida.
This DPIC list of completed 2016 executions details that Georgia and Texas are completing executions with pentobarbital, which I believe is Ohio's execution drug of choice. I know there must be all sorts of legal and practical complications that prevents Ohio officials from simply getting execution drugs from these states, but that reality does not reduce the frustrations that everyone involved in capital justice in Ohio must have as this problems continues to fester and Gov Kasich continues to spend his time traveling to country talking about having the formula to make government work better.
I am busy finishing up a little article suggesting that, for practical and political reasons, most states would generally be wise to seek to end rather than mend its broken death penalty systems. And, in part for reasons hinted in this post, I am using Ohio's modern experience with death penalty administration as exhibit one in my discussion.