June 4, 2016
"The Real Felony: Denying Prisoners the Right to Vote"
The title of this post is the headline of this new Daily Beast commentary by Barrett Holmes Pitner. It starts and ends this way:
Recently, Hillary Clinton dramatically put voting rights back on the national agenda with an audacious call to register every American citizen when he or she turns 18. Voter ID laws are not new issues in our politics, but Clinton’s full-throated appeal felt serious and sincere: Perhaps we will finally tackle the perverse voter disenfranchisement of minorities and the poor that still persists throughout this country.
But I’ll go her one better. If Hillary is serious about social justice and equality, I hope she does not overlook one nearly voiceless population that needs to be included in this debate: ex-convicts returning home from prison, and, yes, even incarcerated prisoners....
It is becoming more apparent that voting is a responsibility that needs to be fostered, and many people develop the voting habit from observing previous generations. Voting builds stronger communities of people who are more likely to participate in the democratic process. Similarly, inmates who are able to vote will feel more connected and invested in their communities, and can set a positive example to the outside world while they are behind bars.
It may be easy to discredit how informed inmates may be, but data are emerging showing that “informed” voters by and large vote along party lines and are not as well versed on the issues as we would like to believe. And we need not forget that prisoners have plenty of spare time, and are one of the few demographics that could leisurely read two newspapers a day and still find time to watch the evening news.
The argument for keeping the incarcerated and the newly released off the voting rolls is based on an archaic punitive disciplinary structure that we need to move beyond. Maintaining an electoral process that actively works to disenfranchise nearly 3 percent of eligible voters is a structure that no democratic nation should support.
Could criminal defendants try to use GOP Prez candidate Trump's bias claims to bollix up prosecutions?
I always try to stay open-minded about all people's political and personal perspectives, and I have thus to date been disinclined to think the worst about GOP Prez candidate Donald Trump and the prospect of him becoming the next President of the United States. But I am quite troubled by Trump's recent attacks on a federal judge, and those attacks prompt the provocative question in the title of this post. This new NPR piece, headlined "Trump Presses Case That 'Mexican' Judge Curiel Is Biased Against Him," provides the basic backstory:
Donald Trump is intensifying his attacks on the federal judge presiding over fraud lawsuits against Trump University. On Friday the presumptive Republican presidential nominee, dismissing criticism from legal experts on the right and left, pressed his case against U.S. District Judge Gonzalo Curiel, saying the Indiana-born judge is biased against him because "he's a Mexican. We're building a wall between here and Mexico."
Trump made the remarks, and others like it, repeatedly, in interviews with CNN and The Wall Street Journal, referring to Judge Curiel variously as "of Mexican heritage" or just "Mexican." But the message was always the same, that the judge had what Trump called "a conflict" because of his ethnicity.
At a rally in San Diego last week, Trump characterized the judge as "a hater of Donald Trump, a hater. He's a hater." And "they ought to look into Judge Curiel." In public, Trump has called repeatedly for the judge to recuse himself, but his lawyers in fact have not made any such request.
That is undoubtedly because court precedents are unanimous in holding that race, ethnicity, gender, religion and sexual orientation are not themselves grounds for disqualifying a judge. If they were, lethal ethicists observe, the legal system would fall into chaos because no judge would be free from taint. The five Supreme Court justices who are Catholic could not rule on a case in which the Catholic church participated, but neither could the other justices who are not Catholic.
Moreover, while Trump is free to say anything he wants about the judge, the lawyers in the case are bound by the professional rules of conduct and could be sanctioned for making such charges about Curiel without actual evidence of bias. Legal ethics expert Stephen Gillers notes in addition that litigants may not wait to seek a judge's disqualification; they must move to recuse the judge as soon as they know there is a conflict.
Trump's lawyers, from the prestigious O'Melveny & Myers firm, however, have not done that. Indeed, some observers argue that the judge did the candidate a big favor by postponing the trial in the case until after the election. And Trump did not become bellicose about Curiel until the judge, at the request of news organizations, ordered the unsealing of documents in the case — documents that have proved embarrassing for the GOP presumptive nominee.
"This is not really about rebutting accusations that Trump University defrauded its students," said NYU's Gillers. Rather, it is a kind of dog whistle to supporters, "a way to keep the subject of illegal Mexican immigration on the front page."
Judge Curiel, appointed to the federal bench by President Obama, was born in Indiana, the son of Mexican-American immigrants. He served for 17 years as a federal prosecutor in California, rising to chief of narcotics enforcement in the southern district. In 1997 he was believed to be the target of an assassination attempt from a Mexican drug cartel, was put under 24-hour watch by the U.S. Marshall Service for a year, was moved to a military base and eventually to Justice Department headquarters in Washington, D.C.
I am not aware of any criminal defendants who have successfully sought disqualification of a judge (or a prosecutor) based solely on the basis of that judge's race, ethnicity, gender, religion and sexual orientation. That said, I certainly have heard criminal defendants assert, like Donald Trump, that a prosecutor or a judge is biased on one of the bases. And if repeatedly making such claims in public to serve a political or personal agenda is good enough for the GOP's Prez nominee, why couldn't a criminal defendant unhappy with how a prosecution is moving forward start making similar claims to serve his hew own agenda?
"What Do Criminals Deserve?"
The title of this post is the title of this new book chapter authored by Douglas Husak now available via SSRN. Here is the abstract:
I attempt to specify the precise role played by desert in a justification of state punishment. To this end, I contrast the questions that must be resolved from those that need not be addressed at all or cannot be answered to anyone's satisfaction. I argue that much can be learned about the justification of state punishment by focusing on situations in which persons react appropriately to culpable wrongdoing perpetrated by non-state actors. I conclude that the greatest difficulty for desert theorists is to explain why the deprivations and stigma legitimately inflicted by victims should take the form of hard treatment and censure imposed by the state. I offer a few inconclusive suggestions about how this latter problem might be solved.
June 3, 2016
Weldon Angelos, poster child for need to reform federal mandatory minimums, apparently released after serving 12 years of 55-year sentence
Regular readers likely know the name Weldon Angelos and likely recall some of the details of his 55-year mandatory minimum federal sentence based on his convictions for low-level marijuana dealing and firearm possession. And regular readers likely will also be intrigued and heartened to read this new Washington Post story, headlined "Utah man whose long drug sentence stirred controversy is released," indicating that Weldon was released earlier this week. Here are the (somewhat mysterious) details:
One federal inmate who was released — but not under Obama’s clemency initiative — is Weldon Angelos, 36, a father of three from Utah who was sentenced in 2004 to a 55-year mandatory minimum prison term in connection with selling marijuana.
The specific circumstances of Angelos’s release are unclear because court records in his case are sealed. But after a long campaign from his supporters, including Sen. Mike Lee (R-Utah), Angelos was quietly released Tuesday after a federal court granted him an immediate reduction in sentence. He was able to immediately go home to his family without serving three months in a halfway house, as those who receive clemency are required to do. The release allowed Angelos to see the son he left at age 7 graduate from high school Thursday.
Angelos is one of the nation’s most famous nonviolent drug offenders and became a symbol of what advocates said was the severity and unfairness of mandatory sentences. His case was championed by the group Families Against Mandatory Minimums, former FBI director Bill Sessions, conservative billionaire Charles Koch and others. Three years ago, more than 100 former judges and prosecutors, former elected and appointed government officials, and prominent authors, scholars, activists and business leaders signed a letter urging Obama to grant Angelos commutation.
In February, former federal judge Paul G. Cassell, who sentenced Angelos, wrote a letter asking Obama to swiftly grant him clemency. Cassell said that the sentence he was forced to impose was “one of the most troubling that I ever faced in my five years on the federal bench” and that it was one of the chief reasons he stepped down as a judge.
But Obama never granted clemency to Angelos. The granting of mercy instead came from the Salt Lake City prosecutor who charged him in the case, according to his lawyer. “After three and half years of inaction on Weldon’s clemency petition, he is free because of the fair and good action of a prosecutor,” attorney Mark W. Osler said. “He returns to citizenship because of the actions of one individual — just not the individual I was expecting. Weldon’s freedom is a wonderful thing but remains just one bright spot among many continuing tragedies.”
A White House spokeswoman said that the White House cannot respond with details about any individual clemency case. Julie Stewart, president of Families Against Mandatory Minimums, called the release of Angelos “fantastic news and past due.”
I am inclined to guess, absent hearing any details to the contrary, that the Utah federal prosecutor agreed to what some have come to call a Holloway motion: a motion first engineered by former Judge John Glesson in the case of Francios Holloway (discussed here) by urging prosecutors to move to undo stacked federal gun charges that had resulted in acrazy-long mandatory minimum prison term.
A few of many prior related posts on Angelos and Holloway cases:
- Judge Cassell's remarkable, and remarkably disappointing, decision in Angelos
- A request for a commutation for Weldon Angelos
- A test for the Kochs' influence: seeking justice and freedom for Weldon Angelos
- Paul Cassell, the former federal judge who sentenced Weldon Angelos to 55 years, writes directly to Prez Obama to support his clemency petition
- US District Judge Gleeson prods prosecutors to undo stacked gun counts and then praises effort to do justice
- So thankful for federal judges encouraging prosecutors to reconsider extreme sentence... but...
June 3, 2016 in Examples of "over-punishment", Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)
Prez Obama commutes 42 more federal prison sentences
As reported in this AP piece, this afternoon "President Barack Obama is commuting the sentences of 42 people convicted of drug-related offenses." Here is more:
Obama's latest round of clemency brings to 348 the total number of sentences Obama has commuted since taking office. The pace has increased substantially as Obama approaches the end of his presidency. Roughly half of the 42 receiving commutations Friday were serving life sentences. Most are nonviolent offenders, although a few were also charged with firearms violations.
Obama's commutation shortens their sentences, with most of the inmates set to be released October 1.
White House counsel Neil Eggleston says Obama will keep using his clemency power to give deserving individuals a second chance. Obama has pushed to overhaul the criminal justice system but a bipartisan effort has struggled to maintain momentum.
Via this blog post (which provides the graphic reprinted here), Prez Obama's counsel notes that that "President Obama Has Now Commuted the Sentences of 348 Individuals" and highlights that now "the President has commuted the sentences of more individuals than the past 7 presidents combined." Here is more from the blog posting:
Today, the President announced 42 additional grants of clemency to men and women serving years in prison under outdated and unduly harsh sentencing laws. The individuals receiving a presidential commutation today have more than repaid their debt to society and earned this second chance.
To date, the President has commuted the sentences of 348 individuals -- more than the previous seven Presidents combined. He remains committed to using his clemency power throughout the remainder of the Administration to give more deserving individuals that same second chance....
Despite these important efforts, only legislation can bring about lasting change to the federal system. There remain thousands of men and women in federal prison serving sentences longer than necessary, often due to overly harsh mandatory minimum sentences. That is one reason it is critical that both the House and the Senate continue to cooperate on a bipartisan basis to get a criminal justice reform bill to the President's desk.
"Conservatives should celebrate Obama’s commutations"
The title of this post is the headline of this new Dallas Morning News commatary. The piece is authored by Tom Giovanetti, president of the Institute for Policy Innovation, a group that explains its focus to be "on approaches to governing that harness the strengths of individual liberty, limited government, and free markets." Here are excerpts:
The White House recently announced that 58 federal inmates, mostly non-violent drug offenders, would have their sentences shortened through commutation. This brings the total number of commutations during the Barack Obama years to 306, more than any recent administration. And word out of the White House is that there will be more to come during President Obama’s final months in office.
Many conservatives will be initially inclined to see Obama’s commutations as the act of a liberal who is soft on crime. But conservatives should celebrate President Obama’s commutations. In fact, as people who prize liberty and individual rights, and who are skeptical about government power, conservatives need to do a rethink on criminal justice.
It’s becoming clear that something has gone very wrong with the justice system in the United States. Today, the U.S. has the highest incarceration rate in the world. Too many crimes have been federalized, as opposed to being handled more locally by state and local courts. Excessive punishments are being meted out for non-violent crimes because of mandatory sentencing requirements. And it’s dawning on people that the justice system is plagued by the same careerism and corruption that characterize other branches of government....
Taking reasonable discretion away from judges was a mistake, and it caused a shift in power from judges to prosecutors, who can select and “stack” charges involving mandatory minimums. While judges are appointed or elected to consider both sides of a case, prosecutors are hired to convict. It should trouble conservatives that the government side of the equation has been awarded such disproportionate power, which has clearly led to abuses.
Consider the case of Weldon Angelos, who at age 24 was arrested in Utah for selling marijuana and possessing a firearm. Because of stacked charges with mandatory minimums, Federal Judge Paul Cassell had no choice but to sentence him to 55 years in prison. Judge Cassell has ever since been pleading for a commutation to Angelos’ sentence, pointing out that far worse crimes, such as hijacking, rape, and second-degree murder, have lighter sentences. But the judge, who clerked for Antonin Scalia, was appointed by President George W. Bush, and who favors the death penalty, was powerless in the face of a prosecutor armed with federal mandatory minimum sentences.
Yes, our justice system should be about public safety first. But all too often it is about careerism, government revenue and corruption. Stephanos Bibas, professor of law and criminology at the University of Pennsylvania, reminds us that “the criminal justice system and prisons are big-government institutions. They are often manipulated by special interests such as prison guard’s unions, and they consume huge shares of most states’ budgets.”
Social conservatives should understand the need for criminal justice reform, since we believe that every human life has inherent dignity and value, and we believe in the possibility of redemption. Non-violent offenders can be punished and make restitution while keeping families intact and offenders productive. Economic conservatives should recognize that non-violent offenders are better deployed working in the private sector than incarcerated in expensive government facilities. And libertarians — well, libertarians already get it.
There are many pieces to the justice reform movement, including giving judges more sentencing leeway, eliminating civil asset forfeiture, and prioritizing drug treatment and in-home monitoring of incarceration. But commuting sentences for non-violent offenders that are far in excess of the crime is a great place to start.
June 3, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Appellate judges certify to Florida Supreme Court whether state sentencing scheme violates Due Process Clause or Eighth Amendment
A helpful reader alerted me to a remarkable decision handed down earlier this week by the Florida's Fourth District Court of Appeals. The reader provided this helpful summary that I could reprint here (with my emphasis added):
The Fourth District Court of Appeal wrote a decision that (in essence) asks our Supreme Court to revisit the constitutionality of our sentencing scheme, a scheme that gives judges complete discretion to sentence a defendant anywhere between a calculated "lowest permissible sentence" and the statutory maximums stacked end to end. This system of nearly unlimited sentencing discretion is everything Judge Frankel decried, and the sentence the court reviewed is a case in point: the defendant was 55 years old, he had no prior record, and his "lowest permissible sentence" was 23.7 months in prison. For trying and failing to steal three boat motors he was sentenced to 35 years in prison (the statutory maximums stacked end to end), effectively a life sentence.
Judge Gross wrote a thoughtful and scholarly concurring opinion that begins with the history of sentencing in Florida, talks about the evils of unfettered sentencing discretion, and ends with Judge Frankel and his modest proposal that judges be required to explain their sentencing decisions (at present they need say nothing).
Here is the question the court certified to Florida Supreme Court as one of great public importance:
Does a sentence within the statutory maximum under the Criminal Punishment Code violate either the Due Process Clause or Eighth Amendment when it is significantly greater than the lowest permissible sentence on the defendant’s scoresheet or the offered plea and grossly disproportionate to the median sentence imposed for similar crimes within the jurisdiction?
Alfonso-Roche v. Florida, No. 4D13-3689 (Fla. 4th DCA June 1, 2016) (available here).
I do not know enough about Florida's appellate procedures to know if the Florida Supreme Court will now have to, or at least is now very likely to, take up these important constitutional issues. But for anyone and everyone working in state or federal systems worried about the exercise of unfettered sentencing discretion, this Alfonso-Roche decision is today's must-read.
Former House Speaker (and future Trump running-mate?) Newt Gingrich helps make the case for "raising the age" for adult prosecutions
Regular readers know that Newt Gingrich has become a notable and frequent "right on crime" commentator calling for all sorts of criminal justice reforms in all sorts of settings. And here we have another example: this new commentary authored by Gingrich and Pat Nolan, headlined "Don’t train kids to be felons in adult jails," makes the case for limiting the prosecution of teenagers as adults in Louisiana. Here are excerpts:
The noted “tough on crime” criminologist John Dilulio once commented that “jailing youth with adult felons under Spartan conditions will merely produce more street gladiators.” Louisiana should heed Dilulio’s caution against locking up young petty criminals alongside violent adult criminals. The Bayou State is one of only nine states that prosecutes 17-year-olds as adults, often for the most minor of crimes (stealing a bag of potato chips, for instance).
We all can agree that breaking the law is wrong and that these teens deserve to face consequences for their actions. But tossing them into adult jails with hardened criminals just makes those bad situations worse. The research and data are clear: Adult jails are no place for teenagers, who with the help and guidance of parents are likely able to turn their lives around.
Placing youngsters in adult jails makes them more likely to be victims of rape and assault, and more likely to commit suicide. They also are likely to learn a lot more about leading a life of crime from the hardened criminals. There is a lot of truth in the notion that jails and prisons are graduate schools of crime.
In addition, the damage of this policy continues long after they are released. By treating teens differently from the majority of the country, Louisiana makes it harder for them to grow into successful adults....
Fortunately, the Legislature is working on a bill to “Raise the Age” of juvenile jurisdiction. It would assign most 17-year-olds who commit offenses to the juvenile justice system, where they would be held accountable, continue their schooling, learn critical skills and be prepared to live productive and healthy lives as law-abiding members of society. Prosecutors still would be free to choose to prosecute youth accused of more serious offenses as adults....
Raising the age would make society safer and stronger by doing away with the destructive “one-size-fits-all punishment” system we have now. Adult jails and prisons can turn teens into career criminals, and taxpayers are stuck with the bill. By raising the age of how we punish and reform young people who make minor mistakes, Louisiana will help these kids turn their lives around, will make neighborhoods safer and in the process will save taxpayers money. This is being smart on crime.
As the headline of this post highlights, I think Gingrich's continued advocacy for all sort of criminal justice reform is especially notable and important in light of the fact that he name is being brought up repeatedly as a possible running mate for GOP Prez nominee Donald Trump. As detailed in a number of posts linked below, Gingrich has had his name on many commentaries in the last few years vocally supporting a wide array of modern state and federal sentencing reform efforts. If Trump were in fact to select Gingrich as his running mate, I would have to rethink my belief (and fear) that the Trump campaign will be actively opposing most criminal justice reform efforts.
Prior related posts about Gingrich's criminal justice reform advocacy:
- Newt Gingrich says "criminal justice system is broken, and conservatives must lead the way in fixing it"
- Newt Gingrich urging Gov Jerry Brown to sign law to allow resentencings for juve LWOP in California
- Newt Gingrich and Van Jones say "Prison system is failing America"
- Newt Gingrich helps explain "What California can learn from the red states on crime and punishment"
- Newt Gingrich saying again that "backing sensible and proven reforms to the U.S. criminal-justice system is a valuable conservative cause"
- Newt Gingrich and Van Jones lament treatment of mentally ill in US criminal justice system
June 3, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)
June 2, 2016
"Rich Defendants’ Request to Judges: Lock Me Up in a Gilded Cage"
The title of this post is the headline of this lengthy front-page New York Times article. Here are excerpts:
Last October, Ng Lap Seng, a Chinese billionaire indicted on charges that he bribed the former president of the United Nations General Assembly, was granted bond of $50 million, secured by $20 million cash and a Midtown apartment where he would be confined and subjected to GPS monitoring and roundtheclock guards at his own expense.
Many thousands of people arrested in New York languish in the city’s jails because they are unable to make even modest bail. So advocates for prisoners and lawyers for indigent defendants say the idea that some defendants are able to stay out of jail because they have the means to finance a novel confinement plan is blatantly unfair.
“It just reinforces for me the point that our entire system of pretrial detention is predominantly based on wealth,” said Inimai M. Chettiar, a lawyer at the Brennan Center for Justice who runs an initiative to end mass incarceration. Joshua Norkin, a lawyer at the Legal Aid Society of New York, said the elaborate bail package that was being proposed for Mr. Zarrab and that was granted to Mr. Ng should remind judges in the state court system that they have the tools to release low-income people “on alternative and more creative forms of bail, and they’re failing to do it.”
The cases of wealthy defendants’ receiving special bail conditions are not limited to international defendants. In 2009, Marc S. Dreier, a Manhattan lawyer who pleaded guilty to running an elaborate scheme that defrauded hedge funds and other investors of $700 million, was granted a $10 million bond pending trial and remained in his East Side apartment, secured by electronic monitoring and armed security guards, which his family paid for.
Praise for recent Nesbeth opinion using collateral consequences to justify probation sentence for federal drug offense
Lincoln Caplan has authored this New Yorker piece, headlined "Why a Brooklyn Judge Refused to Send a Drug Courier to Prison," to praise US District Judge Block's discussion of the impact and import of collateral consequences in his Nesbeth sentencing opinion (first discussed here). Here are excerpts:
Block explained that he had imposed a year of probation, with two special conditions: six months of home confinement (“to drive home the point that even though I have not put her in prison, I consider her crimes to be serious”) and a hundred hours of community service (“in the hope that the Probation Department will find a vehicle for Ms. Nesbeth, as an object lesson, to counsel young people as to how their lives can be destroyed if they succumb to the temptation to commit a crime, regardless of their circumstances”).
But the bulk of his opinion — the reason federal judges throughout the country have been sending it to one another as a cutting-edge view on an important issue in sentencing—is about why he “rendered a non-incarceratory sentence.” He wrote that it was largely “because of a number of statutory and regulatory collateral consequences she will face as a convicted felon” — restrictions that the federal government, as well as every state government, imposes on anyone convicted of a crime, but especially a felony. A broad range of the restrictions, he said, “serve no useful function other than to further punish criminal defendants after they have completed their court-imposed sentences.”
Block asked the U.S. Attorney’s office and the Federal Defenders of New York, which represented Nesbeth, to provide him with a list of the collateral consequences that she faces as a convicted felon. The government identified what it described as the “handful” that are “potentially relevant.” The loss of a driver’s license is the least onerous. She is also ineligible for student grants, loans, or work assistance for two years, and banned for life from receiving food stamps and Temporary Assistance for Needy Families, though Connecticut could grant her an exemption. She and her family can be denied federally assisted housing for a “reasonable time,” and she cannot be issued a passport until her probation is finished, which matters to Nesbeth because, as her lawyer told the judge, her “father, grandmother, and extended family all reside abroad.”
The judge recounted that federal law imposes considerably more than a handful of consequences, “nearly 1,200 collateral consequences for convictions generally, and nearly 300 for controlled-substances offenses.” Nesbeth’s counsel, Amanda David, of the Federal Defenders, said federal laws will make it difficult for her client to become an educator because they provide money “for background checks of all employees of educational agencies,” and a conviction for a drug felony “can be used as grounds for denying employment for potential employees who want to be involved in providing care to children under age 18.” David also reported that Connecticut automatically bars anyone from getting a teaching certificate for five years after being convicted of a drug felony....
The main conclusion of the judge’s opinion is that, while the law allowed him to take account of the civil penalties when he sentenced her, there was nothing he could do to protect her from them. He joined criminal-justice experts in encouraging Congress and state legislatures “to determine whether the plethora of post-sentence punishments imposed upon felons is truly warranted,” and suggested that they do the country “more harm than good.” He didn’t say so, but for many legislatures that would mean carefully assessing these punishments for the first time. As the criminal-justice scholar Jeremy Travis wrote, in 2002, legislatures have often adopted collateral consequences in unaccountable ways: “as riders to other, major pieces of legislation,” which are “given scant attention.” They are, Travis said, “invisible ingredients in the legislative menu of criminal sanctions.”
The judge made clear why the severity of collateral consequences—authorizing discrimination in education, employment, housing, and many other basic elements of American life—means that anyone convicted of a felony is likely to face an arduous future. This predicament has been called modern civil death, social exclusion, and internal exile. Whatever it is called, its vast array of penalties kicks in automatically with a conviction, defying the supposedly bedrock principle of American law that the punishment must fit the crime.
Prior related post:
- Federal judge justifies below-guideline sentence of probation for drug importer because of "statutory and regulatory collateral consequences she will face as a convicted felon"
June 2, 2016 in Booker in district courts, Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)
FreedomWorks explains why GOP opposition to federal sentencing reform is "unreasonable"
Writing at FreedomWorks, Jason Pye has this lengthy posting headlined "The Unreasonable Opposition to Justice Reform in the Senate," which gets started this way (with links in the original):
Recently, Sen. Tom Cotton (R-Ark.) gave a speech at the Hudson Institute in Washington, in which he offered his case against the justice reform effort in Congress led by conservatives like Sen. Mike Lee (R-Utah), Sen. Tim Scott (R-S.C.), and Rep. Raul Labrador (R-Idaho). Apparently unaware of the efforts of more than 30 states, including several traditionally Republican states, Cotton ridiculously labeled the federal push as "criminal leniency."
FreedomWorks has already responded to some of Cotton's hyperbolic statements on justice reform. Unfortunately, even after proposed legislation was improved to address the concerns of a handful of senators, Cotton doubled down on his opposition in his speech. Some of the more egregious comments from his speech are in italics below, immediately followed by a response to set the record straight.
"These policies are not merely wrong. They are dangerous. They threaten a return to the worst days of the 1990s, when law-abiding citizens lived in fear of their lives. Indeed, we may be living through the leading edge of a new crime wave. Over the last two years, murders across 56 of our largest cities are up 17 percent. The numbers are even more shocking in some cities. In Chicago, murders jumped 70 percent in the first quarter of this year alone. In Las Vegas, 81 percent. In Long Beach, 125 percent."
These are deceptive words, to say the least. As Cotton mentioned, crime rates have declined significantly since the early 1990s. Pew Research found that gun-related homicides, including suicides, declined by 31 percent between 1993 and 2014. Excluding suicides, the figure is closer to 49 percent. Over the same period, the nonfatal firearm crime victimization rate declined by nearly 75 percent. A separate report released in 2013 noted that the public was largely unaware that violent crime was on the decline.
There has been much made of a "new crime wave," but it is difficult for anyone to make such a statement based on a short-term look at the data. The Federal Bureau of Investigation (FBI) publishes annual reports on crime data that offers more context and insight, rather than anecdote. Even in the midst of the decline in crime rates, the United States experienced two consecutive years in which homicide rates increased, 2005 and 2006. In 2007, the homicide rate began to decline again.
According to the last two full-year reports, crime continued to decline, almost across the board. In 2013, crime, including homicides and other violent crime, was down. The downward trend continued in 2014. The FBI hasn't released data for all of 2015; the report is not due for a few more months. The Brennan Center released a preliminary analysis of crime rates in 2015 and found that the "new crime wave," as Cotton puts it, does not exist. But even if the overall crime rate increased, it does not mean that there is some new crime wave. Again, 2005 and 2006 proved to be outliers, and 2015, if the crime rate does rise, may be just that.
June 1, 2016
Are there really now lots more conservatives in lots of states "starting to question the cost and legality of capital punishment"?
The question in the title of this post is prompted by this new short Governing article with this full headline: "The Death Penalty’s New Skeptics: In states across the country, conservatives are starting to question the cost and legality of capital punishment." Here are excerpts from the article:
It’s a government program that is prone to error, marred by long delays and far more expensive than alternative policies. So it may be little wonder that the death penalty keeps attracting new opposition. But it’s surprising where some of that opposition is coming from.
Over the past decade, the death penalty has been abolished in seven states. Most of those are dominated by Democrats. But the most recent is deeply conservative Nebraska, where lawmakers overrode Gov. Pete Ricketts’ veto of an abolition bill last year. Other red states are revisiting the issue as well. A bill to abolish the death penalty fell short by a single vote in a Kentucky House committee this year, while similar legislation actually passed the Utah Senate before failing in the House. Last year, the Montana House killed an abolition bill on a tie vote. A few months later, a judge there imposed a moratorium on executions, citing the difficulty of obtaining appropriate drugs for lethal injection -- an issue that has put capital punishment on hold in several states. Litigation over delayed or botched executions compounds problems with meting out the penalty. “Our death penalty is a joke,” Republican state Rep. Clayton Fiscus said during the debate.
The average death row inmate can cost tens of thousands of dollars a year more to house than run-of-the-mill criminals. Prisoners who are executed can cost upward of $1 million more than those sentenced to life without possibility of parole. “This is a program that’s so bad, the left and right can actually agree on it,” says Marc Hyden, a former field representative with the National Rifle Association who now works for an advocacy group called Conservatives Concerned About the Death Penalty....
[I]t’s indisputable that the growing corps of death penalty skeptics now includes many conservatives. There are enough Republican legislators in Washington state ready to join with Democrats that a repeal measure there could pass, if a key committee chair would allow it to come to a vote. “Many of us conservatives don’t trust government to launch a health-care program or fill potholes, let alone carry out life and death,” Hyden says. “It’s the quintessential broken big-government program.”
I would not dispute that a few prominent GOP elected officials in a few states that have never had a long history of active and effective use of the death penalty may ultimately conclude (as did some in the Nebraska legislature) that it makes more sense to end rather than try to mend a rarely-applied punishment. But I do not believe any of the 17 persons who sought the GOP nomination for Prez this year had ever expressed any reservation about the death penalty either in theory or in practice.
"Correctional Control: Incarceration and supervision by state"
The title of this post is the title of this notable new data-rich report from the fina folks at the Prison Policy Initiative. Here are excerpts from the text at the start of the report (with links from the original):
Prisons are just one piece of the correctional pie. When states are judged solely on their incarceration rates, we are ignoring the leading type of correctional control: probation. In fact, some of the states that appear to be least punitive are the most likely to put their residents under some other form of correctional control. Other states are making changes to their criminal justice systems that shift large numbers of people from one part of the correctional pie to another.
For the first time, this report aggregates data on all of the kinds of correctional control: federal prisons, state prisons, local jails, juvenile incarceration, civil commitment, Indian Country jails, parole and, lastly but importantly, probation. We make the data accessible in one nationwide chart and 100 state-specific pie charts.
We find that this tremendous variation between the states is largely driven by differences in the use of probation, which is the leading form of correctional control nationally. A majority (56%) of people under the control of the American criminal justice system are on probation. Despite receiving little public attention, probation is a significant component of each state’s criminal justice system. While states vary when it comes to their use of prisons and jails, there is far greater variation in their use of probation. For example, in Nevada, 31% of the people under correctional control are on probation whereas in Georgia, a whopping 78% of people under correctional control are on probation.
Georgia’s rate of probation is more than double every other states’ rate of probation and greater than every other states’ total rates of correctional control. One reason why Georgia’s use of probation has ballooned to these levels is that the state uses privatized probation, which unnecessarily puts Georgia residents with extremely minor offenses on probation.
Parole (a type of conditional release from prison) makes up 11% of the correctional population nationally and also varies widely between states, sometimes in ways unrelated to the size of the state prison population. We find that for every 100 people incarcerated in a state prison in that state:
- Maine has 1 person on parole.
- Florida has 4 people on parole.
- Arkansas has 117 people on parole.
- Pennsylvania has 198 people on parole.
June 1, 2016 in Criminal Sentences Alternatives, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)
Examining the high costs of expungement process in some jurisdictions
The Marshall Project has this effective new piece highlighting the ugly economics behind how some jurisdictions handle the expungement processes. The piece is headlined "Want to Clear Your Record? It’ll Cost You $450: In Tennessee and other states, former felons can’t always afford it." Here are excerpts:
Many states charge $150 or less to apply for expungement, the legal term for clearing a criminal record, and some states offer a waiver if the applicant is too poor to pay. But the Tennessee legislature wanted money for the state’s general fund, so it set the fee much higher.
While a gun permit may be discretionary, a decent job or money for an education are crucial, and for many people once convicted of a crime, Tennessee’s high fee has put expungement out of the reach. In Tennessee, there are 958 restrictions based on a criminal record, including disqualification for any state-funded student loan or grant. A record also bars employment in a number of fields and any job that involves working with children.
In recent years, increased attention to the connection between these restrictions, which make it difficult to lead a stable life, and recidivism has spurred lawmakers in states across the country to pass legislation affording those with a conviction or an arrest a clean slate, according to a Vera Institute report. Between 2009 and 2014, 31 states and Washington, D.C., established or expanded expungement laws. Most laws only included misdemeanor convictions or arrest records. A growing number of states are including some low-level, non-violent felonies. Of the 17 states that do so, the application fee is generally in line with standard court fees. But three states are charging far more. Tennessee’s $450 is trumped by Louisiana's $550 fee, and as of July, Kentucky will charge $500.
Louisiana’s high fee results from inefficiencies that make processing an application arduous — the state’s jurisdictions are largely autonomous, with no central storehouse for information, said Adrienne Wheeler, executive director of the Justice & Accountability Center of Louisiana, a group that has worked to make expungement more accessible. Further, the justice system — from the state police to sheriffs’ departments as well as district attorneys and court clerks — are underfunded and depend on fines to make up for the tax dollars they don’t receive. “We were pretty vocal that this was an impossible cost,” said Wheeler of recent reform discussions. But, she said, “These agencies are not getting the funding that they need to function, so it’s hard to ask them to bring it down.”
In Tennessee and Kentucky, bloated prices have little to do with processing the application, but rather the state revenue they were designed to produce. Fifty-five percent of the cash collected in Tennessee goes into the state’s general fund. In Kentucky, it will be a full 90 percent. The prospect of revenue is exactly why Tennessee lawmakers were persuaded to pass felony expungement legislation in 2012, said State Representative Raumesh Akbari, a Democrat. At the time, the official estimate was that the law would raise $7 million for the state annually. In reality, it has generated only about $130,000 each year according to an analysis by a criminal justice nonprofit, Just City. The lack of income is tied to the fact that few would-be applicants can afford to apply, Akbari said.
Public awareness of the issue is gaining momentum in Tennessee. At a fundraising event in February, Memphis Mayor Jim Strickland raised $55,000 in private donations to cover the cost of expungement for indigent applicants.
May 31, 2016
Is "geography" really an "arbitrary feature" of a capital prosecutions?
The question in the title of this post is prompted by this passage today in Justice Breyer's dissent from the denial of certiorari in Tucker V. Louisiana (with my emphasis added):
Lamondre Tucker shot and killed his pregnant girlfriend in 2008. At the time of the murder, Tucker was 18 years, 5 months, and 6 days old, cf. Roper v. Simmons, 543 U.S. 551, 578 (2005) (“The Eighth and Fourteenth Amendments forbid imposition of the death penalty on offenders who were under the age of 18 when their crimes were committed”), and he had an IQ of 74, cf. Atkins v. Virginia, 536 U.S. 304, 321 (2002) (execution of the intellectually disabled violates the Eighth Amendment). Tucker was sentenced to death in a Louisiana county (Caddo Parish) that imposes almost half the death sentences in Louisiana, even though it accounts for only 5% of that State’s population and 5% of its homicides. See Pet. for Cert. 18.
Given these facts, Tucker may well have received the death penalty not because of the comparative egregiousness of his crime, but because of an arbitrary feature of his case, namely, geography. See Glossip v. Gross, 576 U. S. ___, ___–___ (2015) (BREYER, J., dissenting) (slip op., at 12–14). One could reasonably believe that if Tucker had committed the same crime but been tried and sentenced just across the Red River in, say, Bossier Parish, he would not now be on death row.
I do not dispute that Tucker might not have been sent to death row if he had committed the same murder, and had been tried and sentenced, in another county. Indeed, one can certainly assert that had Tucker committed the same murder in, say, Michigan, a state without te death penalty, he definitely would not be on death row. But, I do not think it quite right to call this geographic reality "an arbitrary feature of his case." Arbitrary means "not based on reason," but there are many (seemingly sound) reasons why geography often will define and influence how a capital prosecution proceeds.
Most obviously, a criminal being capitally prosecuted has generally picked where his murder took place, and he typically will be (and some times only can be) prosecuted in a particular locality due to his own homicidal choices. Moreover, the locality where a murder is committed necessarily experiences the impact of the crime most directly, and local decision-makers ought to be most responsive to local concerns as to how best to respond to that murder. And, a locality's prosecutors and judges and jurors have all been selected to be respresentative of local community views and judgments. (Indeed, in his concurring opinion in Ring v. Arizona, Justice Breyer made much of a "community’s moral sensibility" in the resolution of capital cases and the importance of a jury's role in reflecting "a community’s sense of capital punishment’s appropriateness in a particular case.")
In other words, to parrot a newly popular SCOTUS term, I think it is nonsense to call geography an "arbitrary feature" of a criminal case. And while lots of abolitionists complain about the impact of geography on the adminstration of capital punishment, I have never found this complaint to be conceptually convincing or nearly as compelling as other arguments against the modern administration of the death penalty.
"Marijuana Enforcement Disparities In California: A Racial Injustice"
The title of this post is the title of this new short new data reprt/analysis released by the Drug Policy Alliance and the ACLU of California. Here are excerpts from the start and end of this little report:
Effective January 1, 2011, California reduced the penalty for possession of one ounce or less of marijuana from a misdemeanor to an infraction. Subsequently, misdemeanor marijuana arrests plummeted by 86 percent. Although the penalty does not include jail, the offense is still punishable by up to a $100 fine plus fees, making the actual cost of an infraction much higher. This can be a substantial burden for young and low-income people. According to original research presented here, enforcement of marijuana possession — and the economic burden it entails — falls disproportionately on black and Latino people. The disparity is particularly acute for black people and young men and boys....
Infraction data are hard to come by in California. The demographic profile of people issued marijuana possession infractions in Fresno and Los Angeles, however, demonstrates that enforcement continues to fall disproportionately on black and Latino people, particularly young men and boys. In Los Angeles and Fresno 90% and 86% of marijuana possession infractions respectively were issued to men or boys.
These findings demonstrate that reducing penalties for possession of small amounts of marijuana does not go far enough. There are still substantial costs associated with an infraction, such as legal fees, court costs, and lost time at school or at work — and the burden of these costs most heavily impact young black men and boys. While reducing marijuana possession to an infraction has dramatically decreased the number of marijuana arrests in the state, it has not sufficiently reduced the disparate manner in which marijuana laws are enforced.
Cross-posted at Marijuana Law, Policy & Reform
Highlighting just some of the ways that "Democratic Leadership Is Missing In Action on Mass Incarceration"
The quoted portion of this post's title comes from this new commentary at The Nation authored by Inimai Chettiar and Ames Grawert. The piece carries the subheading "Sentencing reform will be a compromise between moderate and conservative Republicans, unless Democrats finally come to the table," and here are extended excerpts:
Even though it now looks like Americans will be deprived the drama of a contested Republican convention, the gathering in Cleveland could hold at least one surprise. The Republicans are set to vote on an RNC resolution to reduce mass incarceration. The measure asks for “reforms for nonviolent offenders at the state and federal level” and urges “state legislators and Congress to…provide substance abuse treatment to addicts, emphasize work and education, and implement policies that cut costs while obtaining better outcomes.”
Finally, Democrats may say, Republicans have woken up to mass incarceration as a 21st-century civil-rights struggle, joining what has for years been a progressive fight. Not so fast. If the Republican Party makes criminal justice reform a priority, they’ll be the first major party to do so, ever. Democrats need to catch up. Adding ending mass incarceration to their own platform would mark a significant step, boldly breaking with their past politics.
So what have the Democrats said about criminal justice? Recent Democratic platforms haven’t merely been silent; they have actually called for policies creating more imprisonment, and then applauded the result. Mentions of progressive alternatives are hard to find.
In 1992, Democrats supported alternatives to incarceration, such as “community service and boot camps for first-time offenders.” But four years later the platform went in the opposite direction. It praised mandatory “three-strikes-you’re-out” laws, truth-in-sentencing provisions that limited earned early release, and “$8 billion in new funding to help states build new prison cells.” At the turn of the century, the party still championed “tougher punishments” as a way to fix “an overburdened justice system that lets thugs off easy,” and applauded federal funding for “new prison cells” as a major success story (a clear nod to the 1994 Crime Bill, which paid states to increase imprisonment).
More recently, in 2008 and 2012, the DNC approved language supporting “local prison-to-work programs” aimed at “making citizens safer and saving the taxpayers money,” and noting the importance of “fight[ing] inequalities in our criminal justice system.” But neither platform made any mention of sentencing reform, or reducing the number of criminal laws, even as the US incarceration rate topped the world and some states reversed course on their “tough-on-crime” policies.
This year’s Democratic presidential candidates have broken with this legacy. Both Hillary Clinton and Bernie Sanders have prominently featured prison reform in their campaigns and vocally noted that the 1994 Crime Bill, which they both supported, went too far.
Yet Democrats still lag behind. Today’s movement to end mass incarceration has largely been led by Republicans. If the federal Sentencing Reform and Corrections Act passes Congress, advocates will have Republican Senators Mike Lee (Utah) and John Cornyn (Texas) to thank for courting support for the bill and hammering out compromises with the party’s most conservative members. At the state level, Republican Governors Rick Perry in Texas and Nathan Deal in Georgia fought for and signed laws that led to sharp reductions in the prison population. In Ohio, Governor John Kasich championed and signed legislation in 2011 to expand the use of treatment in lieu of prison.
In announcing the Republican National Committee resolution to end mass incarceration, RNC member Tom Mechler claimed that “Republicans are the ones that have taken the lead on this.” That’s no idle boast — he’s right. So where are the Democrats?
A few Democrats have stepped up to champion the cause, such as Senators Dick Durbin, Corey Booker, and Patrick Leahy. But the senior party leadership — Senator Harry Reid, Representative Nancy Pelosi, and DNC chair Debbie Wasserman Shultz — have largely been mum. Other influential party voices, including Elizabeth Warren and Chuck Schumer, have done the same. To be sure, Democrats may still be haunted by the ghost of Willie Horton and the fear of being branded as “soft on crime.” And some may believe that stoutly maintaining a belief in “law and order” will secure votes.
But times have changed. Now Democrats can point to Republicans such as Lee, Cornyn, Perry, and Kasich. Even law enforcement supports reform. These conservative voices now give Democrats cover to come out strongly on the issue. And, in the wake of a national protests to reform policing, Clinton and Sanders have energized parts of Democratic electorate — African-American communities and white liberals alike — on the issue. The consensus to reduce unnecessary imprisonment has arrived. But we will never see true reform until Democrats provide a solid left flank, so that compromise lands at the center, instead of to the right.....
Criminal justice reform should be a simple step for a party that believes in progress, equality, and inclusion. It was the Democrats who fought for civil rights in the last century. If the Democrats do not raise their voice, history will record that it was the Republicans who led the civil-rights struggle in this one.
Though I am pleased to see this piece calling out failings of Democratic Party leaders like Senator Harry Reid, Representative Nancy Pelosi, and DNC chair Debbie Wasserman Shultz, this commentary still strikes me as many days too late and many dollars short. First and foremost, where is the needed criticisms of the Clintons and the Obamas, who are and seem likely to remain for some time the four most important Democratic leaders? Regular readers know I lay particular blame on the Clintons not only for consistently moving to the right on criminal justice issues for crass (and racialized) political benefits in the 1990s, but particularly for not being involved in helping to swinging the pendulum back when mass incarceration became an obvious problem in the following decade and Justice Reinvestment movements could have used an extra boost from the mainstream left. But I also blame the Obamas: the Prez (and lawyer and constitutiuonal scholar) certaintly could have and should have invested more time, energy and political capital on an array of "low-hanging" federal sentencing reform opportunities during his first Term; the First Lady (also a lawyer) perhaps could have and should have incorporated discussion of criminal justice reform into her advocacy for healthy families, service members and their families and higher education.
Second, as especially critical right now, this piece (and many others) ought to be aggressively attacking Prez Obama and other Democrats for being resistent to the federal mens rea reform that Republicans want to see included in sentencing reform efforts. I continue to be both annoyed and deeply disappointed that an issue like mens rea reform, which should be a cause championed by true liberals, has become a critical impediment to getting a sound and needed federal sentencing reform bill through Congress. I have long suspected and feared that sentencing reform would not get done this year absent Prez Obama and other Democrats being willing to work toward sound and needed mens rea reform, and yet it does not appear any real efforts are being made by anyone on the D side of the aisle.
And do not get me started on the failure of federal Democratic Leadership to see the extraordinary opportunities that state-level marijuana reforms has created in recent years for remaking the modern federal war-on-drugs narrative. As long time readers may know, I consider effective federal and state marijuana reforms to be a critically important front in the battle against mass incarceration, and one that should have even more long-term potential and impact than modest federal sentencing reforms discussed in Congress. But, short-sighted and fixed in their own dated views of political realities, establishment Democrats have now an impressively long record of mistakes and missed opportunities in this arena. Sigh.
SCOTUS order list inclludes a couple notable criminal appeal summary reversals
The Supreme Court returned from the long weekend with this long order list, which includes a few long per curiam decision in an habeas case from the Ninth Circuit (Johnson v. Lee) and a capital case from Arizona (Lynch v. Arizona). In addition, the Court denied cert in Tucker v. Louisiana, a case in which the constitutionality of the death penalty was directly challened and Justice Breyer (joined by Justice Ginsburg) dissented in an opinion that calls again for taking up this question.
Notably, the Ninth Circuit (and the criminal defendant) is the loser in Lee, whereas the capital defendant prevails in Lynch. There was not dissent from the ruling in Lee, but Justice Thomas (joined by Jusice Alito) dissented from Lynch.
Intriguing capital case tussle between South Carolina and feds in Dylann Roof prosecution
As noted in this prior post, last week federal prosecutors finally decided that they will seek the death penalty for racist mass murderer Dylann Roof. That decision, as reported in this recent local article, now creates some novel issues in light of South Carolina's parallel capital prosecution plan. The article, headlined "Dylann Roof prosecution entering ‘uncharted waters’ of legal history," includes these passages:
Authorities will have two chances to see that Dylann Roof meets the same fate as his victims.
But never in modern times have both state and federal prosecutors sought someone’s execution at the same time. How they will manage two death penalty cases could break legal ground and offer some lessons.
“We are in completely uncharted waters,” said Chris Adams of Charleston, an experienced capital defender. “The federal government’s decision (to seek the death penalty) creates many more questions than it does answers.”...
Scheduled for Jan. 17, the state’s trial is on a faster track. Wilson also sent a letter to [U.S. District Judge Richard] Gergel, asking him to set the federal trial later. The judge could finally set a trial date at a June 7 hearing.... The possibilities are daunting. “It just creates logistical chaos,” Adams said. Officials must sort out subpoenas being filed in two different courts, he said. Prosecutors in each case also must give the defense all exculpatory evidence, or information used to fend off a guilty verdict or to mitigate a sentence. If some evidence is missed in the first trial only to be discovered when it’s turned over in the second trial, that might be grounds for an appeal in the first...
State and federal authorities rejected Roof’s offer to plead guilty and serve life in prison. “Now what we’re going to have is ... possibly two very public, very painful trials and unquestionably a decade of appeals,” [DPIC executve director Robert] Dunham said. “The families will have to deal with Dylann Roof getting all the attention.” But Dan Simmons Jr., whose father was slain in the attack, said prosecutors have made him well aware of that. The Virginia resident has attended most hearings in the two courthouses that sit across the street from each other. “It’s been more than overwhelming,” he said. “But it’s not an overnight thing. ... It’s going to open up some wounds. But we will endure.”...
The state ran out of its supply of the fatal drug [used in executions] in 2013. Citing ethics, all major manufacturers have cut off the states, whose stashes soon expired or were seized as illegal imports. And the federal government has been reviewing its injection methods since 2010, effectively halting executions. There is no indication that either government is in a better position to obtain the supplies now, Dunham said. State prisons spokeswoman Stephanie Givens said, “Officials continue to research solutions and alternatives but have been unsuccessful in acquiring lethal injection drugs.” So even if a jury condemns Roof to death, experts said, the 22-year-old could live a long life in prison — unless he voluntarily opts for South Carolina’s alternative execution method: the electric chair.
I cannot at this point resist highlighting that I flagged the possibility of a double capital prosecution in this post about the case back in June 2015.
A few prior related posts:
- Should it be the state or feds (or both!?!) that capitally prosecute racist mass murderer Dylann Storm Roof?
- Thanks to death penalty, one of worst racist mass murderers gets one of best defense lawyers
- South Carolina prosecutors begin pursuit of death penalty again Charleston church mass murderer
- Attorney for Dylann Roof, Charleston church mass murderer, suggests plea to avoid death sentence
- Just why is DOJ still uncertain about seeking death penalty against Charleston mass murderer Dylann Roof?
- "Why Dylann Roof is a Terrorist Under Federal Law, and Why it Matters"
- Federal prosecutors (FINALLY!) decide to pursue death penalty for Charleston mass murderer Dylann Roof
May 30, 2016
New Vera Institute report reviews trends in state sentencing and corrections
The folks at The Vera Institute of Justice's Center on Sentencing and Corrections released last week a terrific report on state sentencing developments under the title "Justice in Review: New Trends in State Sentencing and Corrections 2014-2015." The full 72-page report (with lots of charts) is available at this link; a short summary is available here and includes this text:
Prompted by dissatisfaction with stubbornly high rates of return among those released from prison, and encouraged by public opinion polls that show a majority of the electorate believes that prison growth has yielded insufficient public safety gains, there is an emerging consensus across the political divide that America’s over-reliance on prison has been too costly and ineffective. Driven by the need to find better solutions, policymakers over the past several years have embraced decades of research and analysis examining what works in corrections to reduce recidivism and improve public safety.
Informed by this research and analysis, 46 states in 2014 and 2015 enacted at least 201 bills, executive orders, and ballot initiatives to reform at least one aspect of their sentencing and corrections systems. These included laws to
create or expand opportunities to divert people away from the criminal justice system: States increased the use of alternative case dispositions, such as deferred adjudication programs, which allow people with first-time or low-level charges to avoid entering a guilty plea or ending up with a record of conviction if they serve a crime-free probationary period. States also expanded or strengthened the use of problem-solving courts that channel people with specific treatment needs, such as mental illness or substance abuse issues, into alternative judicial settings that provide intensive supervision in the community and treatment in lieu of prosecution or sentencing. Still other states passed laws that empower arresting officers to divert certain defendants—especially those with an identified mental health need—into treatment instead of detention;
reduce prison populations: States enacted laws to reduce or contain prison populations by 1) making certain offenses eligible for community-based sentences; 2) reducing the length and severity of custodial sentences by redefining or reclassifying crimes or repealing mandatory penalties; 3) shortening lengths of stay in prison by expanding opportunities to earn sentence credits, which shave off time in custody and advance parole eligibility; and 4) reducing the influx of people into prison for violations of community supervision by implementing evidence-based practices such as graduated responses to violations; and
support people’s successful reentry into the community: To reduce recidivism, states changed their reentry systems to provide better coordination between prisons and community supervision agencies and to increase programming and treatment. In addition, states are supporting family relationships by facilitating family visitation, supporting relationships between incarcerated parents and their children, and ensuring that children of incarcerated people receive care and support. States are also helping people who are justice-involved obtain benefits, state identification, and exercise their voting rights; improving employment prospects by limiting bars on professional licenses and providing certificates of rehabilitation and employability; waiving fines and fees that often create economic obstacles to reintegration; and making it easier for people to expunge prior convictions and more difficult for private entities to disseminate criminal-records data.
Making the case for "Why Latinos Should Invest in Sentencing Reform"
Three notable advocates recently penned this notable Huffington Post commentary that has as its headline the quoted portion of this post's title. Here is how the piece starts and ends:
Partisan gridlock has halted many important policies from becoming realities. One of the promising policies, the Sentencing Reform and Corrections Act of 2015, is currently stalled in the Senate. If enacted, the legislation will have a colossal effect on Latinxs. Once incarcerated, Latinxs face limited economic opportunity, family trauma, turmoil, and deportation — consequences that do not in any way reflect reasonable punishment for the often minor infractions that occur.
Rita Becerra is one of those Latinxs. Rita, who was a single mother of two children and a new grandmother in 1994, was arrested and sentenced to 27 years behind bars for drug charges stemming from her live-in boyfriend’s involvement in the drug trade. Prior to that, Rita had never even had a traffic ticket. Although Rita had never touched any drugs or delivered them, she was charged with conspiracy with intent to distribute. Rita’s boyfriend was able to reduce his sentence to 9 years because he provided details about criminal activities to the prosecution. Yet, Rita could not plea bargain because the only information she knew of concerned her boyfriend’s illegal enterprises and the prosecution already had that knowledge.
This dilemma, where those most involved with a crime possess the lion’s share of information and can bargain for time off while those who may have little involvement — and thus little knowledge of crimes — receive a full sentence, is a frustratingly common occurrence. Rita’s story is as tragic and unjust as it is commonplace. Women are the fastest growing group of prisoners, boasting an incarceration rate almost double that of men leaving more than one million women behind bars.
Another alarming trend is that Latinxs are unjustly targeted because of policies and practices that perpetuate their involvement in the criminal legal system and immigration system. Consequently, Latinxs are twice as likely to be incarcerated as whites and are over-represented in state prisons in 31 of the 50 U.S. states. They are also overrepresented in the federal system, where Latinxs—who are 17.4 percent of the U.S. population—make up 33.8 percent of the incarcerated population in federal prisons. Indeed, today, 1 in every 6 Latino men and 1 in every 45 Latina women can expect to go to prison in their lifetime. As a result, 1 in 28 Latinx children in the U.S. have an incarcerated parent compared to 1 in 57 white children. Research shows that children who grow up with an incarcerated parent are more likely to go to prison themselves, in addition to suffering from a host of long-term effects and disabilities like attention deficits, mental illness, and physical health issues such as obesity, trauma, depression, and anxiety....
Make no mistake: criminal justice reform is a Latinx issue. But more importantly, it is a human rights issue of epic proportions that touches the lives of many people just like Rita. It demands our immediate attention and Congress’ immediate action.
May 29, 2016
"Anti-Incarcerative Remedies for Illegal Conditions of Confinement"
The title of this post is the headline of this notable new article by Margo Schlanger now available via SSRN. Here is the abstract:
Our bloated prisoner population includes many people who are especially likely to face grievous harm in jail and prison--prisoners with mental illness, serious intellectual disabilities, chronic illnesses, and physical disabilities; gay, lesbian, and transgender prisoners; juveniles in adult facilities and others. In this symposium essay, I argue that when such difficulties are manifest, and create conditions of confinement that are illegal under the Eighth Amendment, Americans with Disabilities Act, or other source of law, plaintiffs should seek, and courts should grant, court-enforceable remedies diverting prisoners away from incarceration, in order to keep vulnerable populations out of jail and prison. What’s novel about this proposal is not the diversionary remedies themselves, but the connection of such programs to conditions of confinement litigation. Only rarely have such initiatives — which I label “anti-incarcerative” — been imposed or negotiated as court-enforceable solutions for jail or prisons conditions problems. And when they have, it’s mostly been to facilitate compliance with a court-ordered population cap. What I’m urging is a new generation of anti-incarcerative remedies in conditions lawsuits, unconnected to a population order, whose purpose is to keep vulnerable would-be prisoners out of harm’s way by promoting workable alternatives to incarceration.
In Part I, I describe the history of population caps in conditions of confinement lawsuits. These kinds of direct population limits — still available and valuable, in the right case — constituted a first generation of decarcerative conditions orders. They are important both historically and because they demonstrate that ordinary remedial law allows court orders that keep prisoners out of prison in order to avoid constitutional problems inside. I next highlight in Part II a few pioneering court orders that have specified anti-incarcerative remedies, hooked to alleged or proven unconstitutional conditions caused by crowding. Like the population caps, these orders have aimed explicitly at population reduction. I move in Parts III and IV to two models for anti-incarcerative orders that are not premised on crowding. In Part III, I examine recent remedies addressing unconstitutional solitary confinement. Many of these recent orders have not simply barred prisons from imposing the solitary conditions plaintiffs allege are unconstitutional. Rather, they establish and regulate alternatives to solitary confinement. A final useful model, which I examine in Part IV, can be found in ongoing deinstitutionalization remedies in cases, on the model of Olmstead v. L.C, that enforce the Americans with Disabilities Act, which have focused more on provision of services in the community than on institutional exclusions. The orders in both Parts III and IV support my contention that the ordinary law of remedies allows entry of orders keeping prisoners out of a situation in which they would face unconstitutional harm. Finally, in Part V, I explain why the Prison Litigation Reform Act’s constraints on “prisoner release orders” should not obstruct a new generation of anti-incarcerative orders.
Our national infatuation with incarceration has led to the damaging imprisonment of many vulnerable people in jails and prisons ill-equipped to house them safely — people with mental and physical disabilities, juveniles, the elderly, minor offenders, and others. When a particular facility or system is unable to provide these prisoners with lawful conditions of confinement, plaintiffs should seek, and federal courts should grant, anti-incarcerative orders that facilitate alternatives.
Some blogosphere reading for the extended weekend
With a bit of unexpect internet time, I have come to see a few interesting postings from the past week around the blogosphere that seemed worth rounding up here. So:
From California Correctional Crisis, "Long Sentences for Juveniles: Does Parole Fix Everything?"
From Canna Law Blog, "The Marijuana Industry is not at War with the Poor"
From the Colllateral Consequences Resource Center, "“On Lawyering” on collateral consequences"
From Crime & Consequences, "A Requiem for Sentencing Reform"
- From Gamso -- For the Defense, "Loretta Lynch v. Connecticut"
- From Simple Justice, "Judge Block’s Curious Parsimony"