June 25, 2016
Will party platforms include commitment to reduce mass incarceration (and does it really matter)?
The question in the title of this post is prompted by this new Politico article , headlined "Civil rights groups push Dems, GOP to include sentencing reform in their platforms." Here are excerpts:
An influential coalition of civil rights groups pushing for criminal justice reform is pressuring both the Republican National Committee and Democratic National Committee to include the issue in their respective party platforms this summer.
In a new letter, the organizations — including the American Civil Liberties Union, the NAACP, the Urban League and the Brennan Center for Justice — argue that after decades of pushing tougher crime laws, both Democrats and the GOP need a “bold break” toward policies aiming at easing incarceration rates.
“As you convene to set your respective policy agenda, we urge you to include reducing mass incarceration, while increasing public safety, as part of your party platforms,” the groups wrote in the letter, addressed to the respective party chairs and platform committee leaders and provided to POLITICO in advance of its release.
Among the policies called for by the pro-criminal justice reform groups: Revising sentencing laws so the “punishment is proportional to the crime and no longer than necessary to achieve rehabilitation and deterrence,” helping to reduce recidivism rates by promoting job training and educational programs for former inmates, and using federal funds to reward states for policies that reduce both the prison population and crime rates. “While more is needed to fully achieve reform, including these measures in the platforms will signal a significant shift in national policy,” the organizations wrote.
Criminal justice reform has been a lingering issue in Washington, with both President Barack Obama and key Republican leaders in Congress saying they want to pass legislation overhauling sentencing laws and other prison reforms this year. But the issue has also been a divisive one, particularly within the Senate Republican Conference, and its prospects are growing dimmer -- particularly in a contentious election year.
"Trauma Informed Juvenile Justice"
The title of this post is the title of this new paper authored by Samantha Buckingham now available via SSRN. Here is the abstract:
The juvenile justice system fails to account for the astounding rates of childhood trauma exposure amongst system-involved youth. Trauma, an experience threatening to life, safety, or well-being, overwhelms an individual’s ability to cope. The experience of trauma is so pervasive amongst juvenile justice youth that a recent study found that 93% of children in an urban detention facility had experienced at least one traumatic event in the past year, and for more than half of those youth the trauma they reported was witnessing violence. When left untreated, or treated without targeted trauma-specific therapies, trauma sufferers are vulnerable to commit offenses as children and as adults. The stakes are high: untreated trauma can turn people into ticking time bombs bound to respond to triggers and misinterpret events, sometimes responding violently, even to mundane events in their daily lives. The good news is that when trauma is identified and treated with appropriate trauma-specific methods, child trauma sufferers in particular can heal, overcome their trauma, and grow in positive ways.
The juvenile justice system has yet to catch up with contemporary understanding of trauma’s impact on offending and the latest best practices for treatment of trauma. Specifically, the juvenile justice system fails to accurately identify trauma and often employs counter-productive responses to juvenile offending, such as removal from the home, programming and treatment that is general rather than trauma-specific, and the over-use of detention. Poor youth of color, the most marginalized among us, are the children who suffer the greatest from the current failure to incorporate a trauma-focused response in the juvenile justice system and are subjected to incarceration at unreasonably high rates. Incarceration itself is traumatic, it exacerbates pre-existing trauma, and it is counterproductive to long-term community safety.
This Article proposes four trauma-informed reforms: (1) create a presumption of trauma, (2) mandate trauma identification of youth in the juvenile justice system, (3) implement trauma-informed procedures, and (4) utilize trauma-informed dispositions, which will dramatically reduce our over-reliance upon incarceration in favor of safe-settings in the community. Endowed with trauma-focused reforms, the juvenile justice system is poised to identify and appropriately respond to the many traumatized children who come to its attention early enough to make a difference, capitalizing on the incredible potential for growth and resilience children possess, realizing the paramount goal of rehabilitation, promoting long-term community safety, and working to eliminate the incarceration of children.
June 24, 2016
Unexpectedly(?), new post-Hurst hydra head takes big bite out of Ohio capital case
As regularly readers know, in this post not long after the Supreme Court in Hurst declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term "post-Hurst hydra" to describe what I expected to become multi-headed, snake-like capital litigation as judges tried to make sense of what Hurst must mean for past, present and future cases. That hydra has been taking various bites out of capital cases most prominently in Alabama and Delaware as well as Florida, but this article from my own local Ohio paper highlights how new heads can pop up in unexpected places. The article is headlined "Prosecutor: Marion County judge's ruling puts death penalty in jeopardy," and here are the interesting details:
A Marion County judge this week dropped the death penalty elements from a convicted murderer-rapist's sentence on the grounds that there were similarities to a Florida death sentence ruled unconstitutional by the U.S. Supreme Court this year.
Because Florida and Ohio have similar sentencing and procedural guidelines, defense attorneys argued that Maurice A. Mason, sentenced in 1994 for raping and beating to death Robin Dennis, then 19 and pregnant, should not be executed.
The case could have implications in other capital cases in Ohio, said Marion County Prosecutor Brent Yager, who disagreed with Monday's decision by Marion Common Pleas Court Judge William Finnegan. "I was surprised," said Yager. "I believe that there is a distinction between the death penalty in Florida and in Ohio."...
Finnegan, in his ruling, wrote that the Hurst decision makes clear that the Sixth Amendment requires juries make specific findings to authorize the death penalty. Ohio, he wrote, "has no provision for the jury to make specific findings related to the weighing of aggravating and mitigating factors," and thus is unconstitutional.
Yager said Ohio differs from Florida because juries here directly decide the aggravating circumstances in a capital case used in the penalty phase and sentencing, although judge's have the ability to commute the death sentence in lieu of life in prison.... Yager said the ruling is frustrating, in part because victim families and lawmakers expect swift and certain justice.
"Ohio and the state legislature have decided we still should have a death penalty in Ohio," said Yager. "But based on the judge's ruling here, if this stands, our death penalty would be unconstitutional. This decision does become a statewide issue." Yager said he plans to file an appeal with the Third Circuit Court of Appeals in Lima.
Mason's attorney, Kort Gatterdam, said the decision should "withstand scrutiny from higher courts and will become the law of this state ... and could become the basis to eliminate the death penalty in Ohio."...
Mason, now 52, has been moved from death row to a regular cell at the Mansfield Correctional Institution. With no sentence on record for the murder conviction, he technically is eligible for a parole hearing. But the Ohio Department of Rehabilitation and Correction and the parole board have said that won't happen his ultimate sentence for murder is resolved.
Not long after SCOTUS ruled in Hurst, a very smart and savvy local lawyer told me that he thought a strong argument could be made that Ohio's capital sentencing scheme has Hurst problems. Apparently, at least one state trial judge agrees, and it will be very interesting to watch the certain appeal of this ruling in the state courts as well as whether this ruling echoes through lots and lots of other Ohio capital cases past and present.
The full 50-page ruling in Ohio v. Mason, No. 93CR1053 (Ohio Common Pleas Ct. June 20, 2016), is available at this link. I have not yet had a chance to read the opinion, but I think it surely is a must-read for capital litigators of all stripes in Ohio and elsewhere.
Do all or most prosecutors really end up "hostile to constitutional rights"?
The question in the title of this post is prompted by this lengthy new Reason commentary authored by Ken White and appearing under the titled "Confessions of an Ex-Prosecutor: Culture and law conspire to make prosecutors hostile to constitutional rights." The full article is a must-read for lots of reasons, and how it gets started should highlight why:
Twenty-one years ago, the day O.J. Simpson was acquitted, I began my career as a federal prosecutor. I was 26 — a young 26 at that — on the cusp of extraordinary power over the lives of my fellow citizens. After years of internships with federal and state prosecutors, I knew to expect camaraderie and sense of mission. I didn't expect it to influence how I thought about constitutional rights. But it did.
Three types of culture — the culture of the prosecutor's office, American popular culture, and the culture created by the modern legal norms of criminal justice — shaped how I saw the rights of the people I prosecuted. If you had asked me, I would have said that it was my job to protect constitutional rights and strike only what the Supreme Court once called "hard blows, not foul ones." But in my heart, and in my approach to law, I saw rights as a challenge, as something to be overcome to win a conviction. Nobody taught me that explicitly — nobody had to.
When I left the U.S. Attorney's office after more than five years, my disenchantment with the criminal justice system had begun to set in. Now, decades later, my criminal defense career has lasted three times as long as my term as a prosecutor. I'm a defense-side true believer — the very sort of true believer that used to annoy me as a young prosecutor.
Once again, nobody taught me to think that way, and nobody had to. I learned it by watching how the system ground up clients indifferently and mercilessly. I learned it by watching prosecutors make the sorts of arguments and decisions I had made, and seeing how they actually impacted human lives. I learned it by watching prosecutorial suspicion — and even paranoia — from the wrong end. I learned it by watching how the system crushed indigent clients, and by how it could destroy the lives of even wealthy clients with minimal effort or cause.
I even learned it by watching prosecutors commit misconduct—the deliberate or reckless infringement of defendants' constitutional rights. I saw prosecutors make ridiculous and bad-faith arguments defending law enforcement, and prevail on them. I saw them make preposterous assertions about the constitution because they could, and because judges would indulge them. I saw them reject my claims that my clients' rights were violated because they were the government and my client was the defendant and that was their job.
My criminal defense colleagues who were never prosecutors themselves often assume that prosecutorial misconduct is rife because prosecution attracts authoritarian personality types. Although it is surely true that some are natural bad actors, my experience showed me that prosecutors are strongly influenced to disregard and minimize rights by the culture that surrounds them. Disciplining or firing miscreants may be necessary, but it's not enough: It doesn't address the root causes of fearful culture and bad incentives.
Helpful review of Johnson's impact a year latter, just before ACCA prisoners need to file Johnson collateral appeals
A year ago, as first reported in this post and immediate follow-ups here and here, the Supreme Court in Johnson v. United States, No. 13-7120 (S. Ct. June 26, 2015) (available here), ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws." This morning's Washington Post has this effective (and well-timed) extended article, headlined "Local Small words, big consequences for possibly thousands of federal prisoners,"looking at the impact of that ruling now a year later. I recomment the piece in full, and here are excerpts:
Hundreds if not thousands of federal prisoners are likely to have their sentences shortened — and in some cases get immediate release — due to one of the final opinions written by Justice Antonin Scalia. Scalia’s little-noticed opinion focused on one phrase in federal law but has created uncertainty and upheaval for judges, prosecutors and defense attorneys facing a pile of prisoner requests to have their cases reviewed.
Federal inmates have until Sunday to try to challenge their prison terms after the Supreme Court labeled 12 words in the criminal code “unconstitutionally vague” in an opinion announced by Scalia last June, eight months before his death. The ruling eliminated a section of law that prosecutors relied on to seek stiffer penaltiesfor defendants they said were especially dangerous. Defense attorneys had decried the wording because it was used to brand too many defendants as violent....
For defense attorneys, the court’s decision provides a new avenue to challenge lengthy sentences for prisoners who received severe penalties for nonviolent offenses, such as resisting arrest. “It was a dumping ground,” said Amy Baron-Evans of the Sentencing Resource Counsel Project of federal public defenders. “It ended up sweeping in crimes that no one would think of as being violent.”
Filings from inmates are piling up in judicial chambers throughout the country. In Atlanta, one judge took the unusual step this spring of flagging the names of 110 prisoners from her district eligible to refile for shorter sentences to alert them to the deadline this month — one year from the date the Supreme Court decision was handed down. In Richmond last month, the U.S. Court of Appeals for the 4th Circuit, which covers Virginia, Maryland, West Virginia, North Carolina and South Carolina, received more than 500 filings for sentence reviews, according to the clerk’s office. In the same period last year, there were 18. More than 350 petitions have been filed in the 8th Circuit in St. Louis since May, contributing to a record number of filings in a single month....
The language overturned by the Supreme Court in the criminal code echoes in other parts of the justice system. Nearly identical words about career offenders appear in federal sentencing guidelines, which use a formula to give judges a recommended range of possible prison time for the defendants who come before them.
Federal public defenders and the U.S. Justice Department agree that the Supreme Court ruling negates those words in the guidelines for defendants sentenced since Scalia’s 2015 opinion. The Supreme Court separately is being asked to settle a dispute about whether inmates punished before the 2015 opinion should have another chance at sentencing.
The Justice Department says they should not, according to the government’s court filings. The judges who handed down those prison terms were not bound to a particular mandatory sentence and imposed what they thought were appropriate punishments that should stand, the government says. To the public defenders, that position is at odds with the Obama administration’s advocacy for clemency. If the court rules that the decision does apply retroactively to the guidelines, another 6,000 federal inmates sentenced between 1992 and 2015 could ask to have their prison time cut, according to an estimate from the public defenders’ sentencing project.
Prosecutors say “the sky is going to fall and all of these violent people are going to be let out,” said federal public defender Paresh Patel, who is handling appeals for the Maryland office. “People are not getting a windfall. They were wrongly sentenced as career offenders.”
Justice Department spokesman Patrick Rodenbush said the administration’s position is “fully consistent” with its clemency efforts. The guidelines apply “only to individuals convicted of specific crimes of violence and are wholly distinct from grants of clemency to drug offenders who have been vetted for public safety concerns.”
Prosecutors worry about the ripple effects of Scalia’s opinion. Inmates and their lawyers argue that the court’s decision to eliminate words in one law should stick to other areas of law with parallel language. These filings raise new questions about what types of crimes meet the technical definition of a “crime of violence” and how judges assess a person’s criminal past.
In response to the Supreme Court’s decision, attorneys for Dustin John Higgs in May asked the 4th Circuit for permission to challenge his death sentence. Higgs was sentenced in 2001 for ordering the murders of three young women in Beltsville. The women were shot to death on a desolate stretch of federal land near the Patuxent Wildlife Research Center. Higgs was convicted of using a firearm during a “crime of violence” — in this case kidnapping and murder....
Even if Higgs does not personally benefit, prosecutors say, a new interpretation in his case could upend plea agreements with others facing similar firearms counts. The uncertainty is already changing the way prosecutors draw up and negotiate charges.
The article states that "federal inmates have until Sunday to try to challenge their prison terms," based on the one-year statute of limitations in AEDPA for bringing 2255 collateral appeals following certain critical legal development. As the title of my post indicates, it seems clear that inmates serving ACCA sentences need to get Johnson claims filed now due to this statutory deadline. Less clear, though, is whether inmates eager to extend the reach of Johnson to the career offender guidelines or other statutes are subject to the smae deadline (and, as noted in this prior post, SCOTUS has been relisting throughout June two notable petitions on Johnson's applicability to the career offender guidelines). Also, I suppose, based on the right facts, equitable tolling arguments could be made (though probably would face an uphill battle) for any inmates who missed the AEDPA deadline for bringing Johnson claims in various settings.
Long story short, as I forecasted in some of the posts below right after the Johnson ruling last year, it seems all but certain that many thousands of inmates (and thousands of lawyers) are going to be having Johnson dreams or nightmares for many years to come.
A few (of many) prior related posts:
- SCOTUS finds, per Justice Scalia, that ACCA residual clause is unconstitutionally vague
- A (way-too-quick) Top 5 list of thoughts/reactions to the votes and opinions Johnson
- How many federal prisoners have "strong Johnson claims" (and how many lawyers will help figure this out)?
- "The Circuit Split on Johnson Retroactivity"
- Should SCOTUS deal with Johnson retroactivity through an original habeas petition?
- Updating the bubbling lower-court vagueness mess six months after Johnson
- Supreme Court swiftly rules in Welch declaring Johnson ACCA vagueness decision retroactive
- Two SCOTUS reslists concerning Johnson's application to the career-offender guideline worth keeping an eye on
Split Arkansas Supreme Court upholds state's new secrecy law to allow execution plans to move forward
As reported in this AP piece, "Arkansas can execute eight death row inmates, a split state Supreme Court ruled Thursday in upholding a state law that keeps information about its lethal injection drugs confidential." Here is more about the ruling and its context:
Arkansas Attorney General Leslie Rutledge said she would request new execution dates once the stays are lifted on the eight inmate executions. Generally, a ruling goes into effect 18 days after it is issued. A paralytic drug, vecuronium bromide, expires on June 30, and the supplier has said it will not sell the state more. So, for the stays to be lifted before the drugs expire, Rutledge must ask the court to expedite the certification process, which she had not done as of Thursday.
"I will notify the governor once the stays of executions have been lifted so that he may set execution dates. I know that victims' families want to see justice carried out, and that is exactly what I will continue to work toward as Attorney General," she wrote in an emailed statement. Arkansas Department of Correction spokesman Solomon Graves would not say whether the agency would try to move forward with the executions. When asked whether the department had tried to negotiate purchasing additional drugs or contacted the suppliers to see whether Thursday's ruling would entice them to sell, Graves said he could not engage in hypotheticals....
The court noted in its ruling an affidavit from a prison official, who said he had contacted at least five other drug wholesalers and manufacturers that said they would not sell the drugs to the state or would not sell them without the makers' permission. It was unclear whether Thursday's actions would change those companies' decisions. The attorney general's office would not advise the Department of Correction to use the drugs after they expire, spokesman Judd Deere said.
A group of death row inmates had argued that Arkansas' execution secrecy law, which requires the state to conceal the maker, seller and other information about the drugs, could lead to cruel and unusual punishment and that the state reneged on a pledge to share information. But the high court said in its 4-3 majority opinion that a lower court "erred in ruling that public access to the identity of the supplier of the three drugs (the Arkansas Department of Correction) has obtained would positively enhance the functioning of executions in Arkansas. As has been well documented, disclosing the information is actually detrimental to the process."
Jeff Rosenzweig, an attorney representing the inmates, said he is "studying the decision and anticipate filing a petition for rehearing." Three justices wrote full or partial dissents, including Associate Justice Robin Wynne, who wrote that he believed the inmates proved their claim that the law violated the state constitution's prohibition on cruel or unusual punishment. Justice Josephine Linker Hart wrote that the dismissal of the complaint was premature and that she would have ordered disclosure of the drug information....
For more than 10 years, Arkansas' executions have been stalled because of multiple court challenges over different drug protocols and problems obtaining those drugs. Arkansas Gov. Asa Hutchinson set execution dates last September that were later stayed by the high court until the inmates' challenge could be heard. Hutchinson "believes Judge Griffen overstepped his authority and is pleased the Arkansas Supreme Court reversed his ruling upholding the law protecting the confidentiality of the supplier," spokesman J.R. Davis said, adding that Hutchinson is reviewing the decision and talking with Rutledge regarding "the appropriate next steps to take."
The inmates had argued that without disclosure of the source and other information they had no way to determine whether the midazolam, vecuronium bromide or potassium chloride would lead to cruel and unusual punishment. The inmates also argued that the secrecy law violates a settlement in an earlier lawsuit that guaranteed inmates would be given the information. The state has said that agreement is not a binding contract, and the court agreed Thursday.
Several other issues remain before the state can complete the eight pending executions in the seven days before the paralytic drug expires. A handful of the inmates have not been given a chance to have clemency hearings, and for those who already had them, it was unclear whether they would need another opportunity to apply for clemency because a new date of execution would have to be set.
The full ruling from the Arkansas Supreme Court can be accessed at this link, and this passage from the majority opinion helps explain the import of the Supreme Court's Glossip ruling on this state case:
In this case, the Prisoners urge us to disavow the requirement established in Baze, as amplified by the Court in Glossip, that a prisoner bears the burden of proving a known and available alternative to a state’s current execution protocol. They assert that we should construe our provision differently because the Eighth Amendment uses the words “cruel and unusual punishment,” whereas the Arkansas Constitution contains the disjunctive phrase “cruel or unusual punishment.” As the Court made clear in Glossip, the burden of showing a known and available alternative is a substantive component of an Eighth Amendment method-of-execution claim. We are not convinced that the slight variation in phraseology between the two constitutions denotes a substantive or conceptual difference in the two provisions that would compel us to disregard any part of the test governing a challenge to a method of execution. Accordingly, we decline the Prisoners’ invitation to depart from our practice of interpreting our constitutional provision along the same lines as federal precedent, and we hereby adopt the standards enunciated in both Baze and Glossip. Accordingly, in challenging a method of execution under the Arkansas Constitution, the burden falls squarely on a prisoner to show that (1) the current method of execution presents a risk that is sure or very likely to cause serious illness and needless suffering and that gives rise to sufficiently imminent dangers; and (2) there are known, feasible, readily implemented, and available alternatives that significantly reduce a substantial risk of severe pain.
June 23, 2016
"For aficionados of pointless formalism, today’s decision is a wonder, the veritable ne plus ultra of the genre."
The title of this post is one of a number of Justice Alito's spectacular comments in his dissent in the latest Supreme Court ruling on ACCA, Mathis v. United States, No. 15–6092 (S. Ct. June 23, 2016) (opinion here, basics here). In addition to a number of great rhetorical flourishes, Justice Alito's dissent in Mathis explains how messy ACCA jurisprudence has become and reinforces my sincere wish that folks in Congress would find time to engineer a (long-needed, now essential) statutory ACCA fix. Here are passages from Justice Alito's Mathis dissent that frames effectively the mess that ACCA has become and builds up to the sentence I am using as the title of this post:
Congress enacted ACCA to ensure that violent repeat criminal offenders could be subject to enhanced penalties — that is, longer prison sentences — in a fair and uniform way across States with myriad criminal laws....
Programmed [via prior ACCA rulings], the Court set out on a course that has increasingly led to results that Congress could not have intended. And finally, the Court arrives at today’s decision, the upshot of which is that all burglary convictions in a great many States may be disqualified from counting as predicate offenses under ACCA. This conclusion should set off a warning bell. Congress indisputably wanted burglary to count under ACCA; our course has led us to the conclusion that, in many States, no burglary conviction will count; maybe we made a wrong turn at some point (or perhaps the Court is guided by a malfunctioning navigator). But the Court is unperturbed by its anomalous result. Serenely chanting its mantra, “Elements,” see ante, at 8, the Court keeps its foot down and drives on....
A real-world approach would avoid the mess that today’s decision will produce. Allow a sentencing court to take a look at the record in the earlier case to see if the place that was burglarized was a building or something else. If the record is lost or inconclusive, the court could refuse to count the conviction. But where it is perfectly clear that abuilding was burglarized, count the conviction.
The majority disdains such practicality, and as a resultit refuses to allow a burglary conviction to be counted even when the record makes it clear beyond any possible doubt that the defendant committed generic burglary.... As the Court sees things, none of this would be enough. Real-world facts are irrelevant.
California legislators introduce bill seeking to mandate that any future Brock Turners face three-year minimum prison terms
As reported in this Reuters piece, headlined "California lawmakers move to change sentencing law following Stanford case," the common legislative reaction by policy-makers to concerns about an unduly lenient sentence is in progress in the wake of the high-profile sexual assault sentencing of Brock Turner. Here are the basics:
Seizing on a nationwide furor over the six-month jail term handed to a former Stanford University swimmer following his conviction for sexual assault on an unconscious woman, California lawmakers on Monday introduced legislation to close a loophole that allowed the sentence. The bill, known as AB 2888, marks the latest response to the sentence given to 20-year-old Brock Turner by Santa Clara County Superior Court Judge Aaron Persky in June, which was widely condemned as too lenient. Prosecutors had asked that Turner be given six years in state prison.
"Like many people across the nation, I was deeply disturbed by the sentence in the Brock Turner case," Assemblyman Bill Dodd, one of two California state legislators who introduced the bill, said in a written statement. "Our bill will help ensure that such lax sentencing doesn't happen again."
Turner was convicted of assault with intent to commit rape, penetration of an intoxicated person and penetration of an unconscious person in the January 2015 attack. Under California law, those charges are not considered rape because they did not involve penile penetration. According to the lawmakers, current California law calls for a mandatory prison term in cases of rape or sexual assault where force is used, but not when the victim is unconscious or severely intoxicated and thus unable to resist.
The new legislation, which was introduced in the state assembly on Monday, would eliminate this discretion of a judge to sentence defendants convicted of such crimes to probation, said Ben Golombek, a spokesman for Assemblyman Evan Low, a co-author of the bill. Golombek said that the effect of the proposed new law, which must still be approved by both houses of the legislature and signed by Governor Jerry Brown, is that Turner would have faced a minimum of three years behind bars.
Prior related posts:
- Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
- Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
- NY Times debates "Should an Unpopular Sentence in the Stanford Rape Case Cost a Judge His Job?"
- "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
- Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
- Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
Stressing harms of drunk driving, SCOTUS upholds warrantless breath tests (but not warrantless blood tests) incident to arrest
The Supreme Court handed down its last big Fourth Amendment decision of this Term, and Birchfield v. North Dakota, No. 14–1468 (S. Ct. June 23, 2016) (available here), is a nuanced ruling that I am glad to see makes much of the scourage of drunk driving. Here is the start of the Birchfield opinion for the Court authored by Justice Alito, as well as two key summary paragraphs from deep into the opinion:
Drunk drivers take a grisly toll on the Nation’s roads, claiming thousands of lives, injuring many more victims, and inflicting billions of dollars in property damage every year. To fight this problem, all States have laws that prohibit motorists from driving with a blood alcohol concentration (BAC) that exceeds a specified level. But determining whether a driver’s BAC is over the legal limit requires a test, and many drivers stopped on suspicion of drunk driving would not submit to testing if given the option. So every State also has long had what are termed “implied consent laws.” These laws impose penalties on motorists who refuse to undergo testing when there is sufficient reason to believe they are violating the State’s drunk-driving laws.
In the past, the typical penalty for noncompliance was suspension or revocation of the motorist’s license. The cases now before us involve laws that go beyond that and make it a crime for a motorist to refuse to be tested after being lawfully arrested for driving while impaired. The question presented is whether such laws violate the Fourth Amendment’s prohibition against unreasonable searches....
Having assessed the effect of BAC tests on privacy interests and the need for such tests, we conclude that the Fourth Amendment permits warrantless breath tests incident to arrests for drunk driving. The impact of breath tests on privacy is slight, and the need for BAC testing is great.
We reach a different conclusion with respect to blood tests. Blood tests are significantly more intrusive, and their reasonableness must be judged in light of the availability of the less invasive alternative of a breath test. Respondents have offered no satisfactory justification for demanding the more intrusive alternative without a warrant.
Chief Justice Roberts and Justices Kennedy, Breyer and Kagan joined Justice Alito's opinion for the Court. Justice Sotomayor, joined by Justice Ginsburg, filed an opinion concurring in part and dissenting in part. Justice Thomas also filed his own opinion concurring in the judgment in part and dissenting in part.
Another ACCA win for federal defendants in Mathis
The Supreme Court this morning handed down its last sentencing case this Term, and Mathis v. United States, No. 15–6092 (S. Ct. June 23, 2016) (available here), is another win for federal criminal defendants. Here is the start of the Mathis opinion for the Court authored by Justice Kagan:
The Armed Career Criminal Act (ACCA or Act), 18 U. S. C. §924(e), imposes a 15-year mandatory minimum sentence on certain federal defendants who have three prior convictions for a “violent felony,” including “burglary, arson, or extortion.” To determine whether a past conviction is for one of those offenses, courts compare the elements of the crime of conviction with the elements of the “generic” version of the listed offense — i.e., the offense as commonly understood. For more than 25 years, our decisions have held that the prior crime qualifies as an ACCA predicate if, but only if, its elements are the same as, or narrower than, those of the generic offense. The question in this case is whether ACCA makes an exception to that rule when a defendant is convicted under a statute that lists multiple, alternative means of satisfying one (or more) of its elements. We decline to find such an exception.
Justice Kennedy issued a concurring opinion, and so did Justice Thomas. Justice Breyer, joined by Justice Ginsburg, issued a dissenting opinion. And Justice Alito issued his own dissenting opinion.
"Religious Objections to the Death Penalty after Hobby Lobby"
The title of this post is the title of this intriguing piece authored by Danieli Evans now available via SSRN. Here is the abstract:
In this short essay, I consider how the logic of the complicity-based claims in Hobby Lobby and subsequent nonprofit cases could be applied to challenge the common policy of “death qualifying” jurors in capital punishment cases — removing any juror who reports conscientious opposition to the death penalty. I argue that just like religious nonprofits that object to reporting a religious objection to contraceptives on the grounds that it enables someone else to provide contraceptives, a juror might object to reporting a religious objection to the death penalty on the grounds that it will enable someone else to replace them who is more likely to impose the death penalty.
June 22, 2016
Anyone interested in making bold predictions on the last four criminal cases still to be decided by SCOTUS this Term?
Amy Howe at SCOTUSblog has this helpful new post reviewing the final eight cases still to be resolved by the eight Justices before they take their summer vacations. Some of these opinions will be handed down tomorrow and the others are likely to be released early next week. Notably, four of the remaining eight are criminal cases (and I am leaving out of this accounting the big immigration case). Here are Amy's review of the four criminal cases left:
Voisine v. United States (argued February 29, 2016). Stephen Voisine and William Armstrong, the other petitioner in this case, both pleaded guilty in state court to misdemeanor assaults on their respective domestic partners. Several years later, each man was charged with violating a federal law that prohibits the possession of firearms and ammunition by individuals who have previously been convicted of a misdemeanor crime of domestic violence. Voisine and Armstrong contend their state convictions (which the First Circuit affirmed) do not automatically qualify as misdemeanor crimes of domestic violence because the state-law provisions can be violated by conduct that is merely reckless, rather than intentional.
Birchfield v. North Dakota (argued April 20, 2016). Twelve states and the National Park Service impose criminal penalties on suspected drunk drivers who refuse to submit to testing to measure their blood-alcohol levels. The question before the Court is whether those penalties violate the Fourth Amendment, which only allows police to “search” someone if they have a warrant or one of a handful of exceptions to the warrant requirement applies. Three drivers from North Dakota and Minnesota argue that neither of those conditions is met, and so the laws must fall. The North Dakota and Minnesota Supreme Courts ruled in favor of the states, and now the Justices will weigh in.
Mathis v. United States (argued April 26, 2016). After having been convicted of several burglaries in Iowa, Richard Mathis was later prosecuted by the federal government for being a felon in possession of a firearm and received a mandatory minimum sentence under the Armed Career Criminal Act based on his burglary convictions. The Eighth Circuit affirmed his conviction. The question before the Court is how to determine whether state convictions like Mathis’s qualify for federal mandatory minimum sentences and for removal under immigration law.
McDonnell v. United States (argued April 27, 2016). Former Virginia governor Bob McDonnell is challenging his convictions for violating federal laws that make it a felony to agree to take “official action” in exchange for money, campaign contributions, or anything else of value. The Fourth Circuit affirmed, and so the Justices agreed to weigh in. He argues that merely referring someone to an independent decision maker – in his case, in an effort to help promote a Virginia businessman’s nutritional supplement – doesn’t constitute the kind of “official action” that the statute bars.
I think it is possible that any of these cases could turn into a blockbuster, and Birchfield and McDonnell arguably require the Justices to do some "big" jurisprudential work to resolve the issues before them. Narrow/technical rulings seem more likely in Voisine and Mathis, though the former may get some extra attention in light of the on-going political discussions and sparring over gun control following the Orlando shootings and the latter seems sure to add yet another chapter to the lengthy and complicated ACCA jurisprudence.
As we await these final rulings (and especially because all are sure to be eclipsed in the mainstream media by the abortion, affirmative action and immigration cases also on tap), I would be eager to hear from readers about what they are expecting or even hoping for as the SCOTUS Term winds down.
"Making Hard Time Harder: Programmatic Accommodations for Inmates with Disabilities Under the Americans with Disabilities Act"
The title of this post is the title of this interesting new report from the AVID Prison Project. (AVID stand for Amplifying Voices of Inmates with Disabilities, and its website provides more on the report and on the AVID Prison Project.) Here are excerpts from the report's executive summary:
The disproportionate incarceration of people with disabilities in the United States is a serious and growing problem. As the prison population ages, more inmates are reporting physical disabilities. The U.S. has also seen a rise in the number of people with mental illness and developmental and cognitive disabilities in prison. National surveys now indicate that as many as 31 percent of inmates in state prisons report having at least one disability.
While prison is hard for everyone, incarceration is even more challenging for inmates with disabilities. Research shows that inmates with disabilities are sentenced to an average of fifteen more months in prison as compared to other inmates with similar criminal convictions. The time they serve is also harder, with more sanctions imposed and less access to positive programming than other inmates. Prisoners with disabilities are also four times more likely to report recent psychological distress as compared to inmates without disabilities. In a system intended to control and sanction behavior believed to violate the many regulations that govern prison life, inmates with disabilities who need accommodations are often overlooked, ignored, or even punished.
Very few outsiders are allowed into the prisons, and the public rarely gets to witness the conditions in which many inmates are confined. In recent years, protection and advocacy agencies (P&As), organizations granted with special federal authority to enter facilities that serve people with disabilities, have been going behind prison walls to identify issues facing inmates with disabilities.
P&As have received reports of inmates forced to drag themselves across their cell or sleep on the floor because their cane or walker was removed. Inmates with cognitive disorders, intellectual disabilities, or mental illness have sought assistance because they are unable to complete the programming required to move out of restrictive housing, forcing them to remain in segregation for years, if not decades. These same inmates may be punished for failing to follow the written rules of the prison, rules they either cannot read or cannot understand due to a disability, resulting in sanctions, loss of good time, or even additional criminal charges. Inmates in need of therapeutic diets or those who require assistance in activities of daily living often find themselves caught in an endless cycle of institutional grievances and appeals as they seek approval for accommodations in correctional policy and practice.
In recognition of the growing population of inmates with disabilities, in 2012 Disability Rights Washington, the P&A for Washington State, began focusing more attention on the state’s prisons, investigating the conditions of these correctional settings and working on creative solutions to some of the most serious problems faced by inmates with mental illness, brain injuries, and physical and intellectual disabilities. In early 2014, with increased funding through a private grant, Disability Rights Washington created Amplifying Voices of Inmates with Disabilities (AVID), a project with the sole purpose of protecting and advancing the rights of inmates with disabilities and assisting those who are reentering society. In September 2014, AVID brought together staff from the P&As in New York, South Carolina, Arizona, Colorado, Louisiana, and Texas, as well as from the National Disability Rights Network, to strategize about ways to increase national attention on the issues faced by inmates with disabilities.
This report, which has grown out of that collaborative national effort, aims to highlight the difficulties that inmates with disabilities face as they seek to access programs and services in state prison systems. P&As from across the country provided examples of either past or ongoing advocacy to enforce the protections of the Americans with Disabilities Act (ADA) on behalf of inmates with disabilities. By no means exhaustive, this report provides an overview of the protections afforded to inmates with disabilities under the ADA as well as examples in which P&As have advocated effectively on behalf of inmates with disabilities. This advocacy is multi-modal, ranging from routine monitoring, to informal and individual advocacy, to systemic litigation.
This report begins with a brief overview of the P&A system, describes the different types of advocacy P&As use, and outlines the ADA’s application to prisons. Next, this report details the work P&As across the country have done to advance inmates’ rights under the ADA, focusing on three main areas of prison life: (1) hygiene, health, and safety, (2) accommodations in communication, and (3) access to programming and services. A review of this work reveals that while the ADA has been in place for more than 25 years, much remains to be done to bring programs and buildings in the nation’s prisons into compliance with the requirements of the ADA. This report concludes with a series of recommendations for future action....
Ultimately, this report is intended to spur interest and action within the P&A network and other prison advocacy groups and increase focus on what has become a crisis within the nation’s prison system.
Ninth Circuit discusses timing and tolling for successor 2255 petitions making Johnson claims
Hard-core habeas fans know that all sorts of procedural issues can potentially trip up federal defendants serving Armed Career Criminal Act sentences from being able to bring claims collaterally attacking their sentences based on Johnson v. US. Some of the procedural trip-wires, and potential work-arounds, are discussed today by a Ninth Circuit panel in Orona v. US, No. 16-70568 (9th Cir. June 22, 2016) (available here).
I am not sure any of the particulars discussed in Orona are that noteworthy, but I thought the case merited a blog mention because this week is, arguably, the last week in which defendants with long-final sentences can bring timely collateral attacks based on Johnson.
Making the case for enfranchisement to create a "prison constituency"
Corey Brettschneider has this lengthy new commentary at Politico with this lengthy full headline: "Why Prisoners Deserve the Right to Vote: Giving inmates the vote isn’t just constitutionally the right thing to do, it could also help the country solve one of its most intractable problems." I recommend the full piece, and here are excerpts from its closing sentiments:
Perhaps the most important reason to allow prisoner voting is that prisons, not just prisoners, would benefit. Prisoners need the vote to serve as the “natural defenders” of their own interests. But in defending their own interests, prisoners could substantially improve the prison system itself.
We can start with the issue of prisoner abuse. We already know that prisoners are subject to abusive and inhumane conditions. In a 2011 ruling that held overcrowded California prisons in violation of the Eighth Amendment, Justice Anthony Kennedy wrote that in California alone, an inmate “needlessly dies every six or seven days.” Plenty of other prison practices, such as solitary confinement, are just now receiving public scrutiny, and there are likely more troubling conditions we don’t know about. Under the current system, ending abusive practices requires years of expensive litigation as prisoners sue over maltreatment and prisons adjust to the rulings. We could improve prisons much more quickly and cheaply by creating a political constituency of prison voters.
How would that work? Obama’s historical 2015 visit to a federal prison was noteworthy because politicians rarely listen to those incarcerated. A prison and jail constituency, numbering roughly 2 million across 50 states, would make it routine for politicians to hold town halls and seek ways to improve prison and jail conditions from those who are subjected to them. This is not coddling prisoners. More and more politicians are looking to reform our criminal justice system, and this would be a common sense way to help them identify needed changes.
Of course, granting the right to vote is not enough to create a robust prison constituency. Prisoners will also need to be granted the right to speak freely and receive information, both of which are rights that are often limited for prisoners currently. Superstar litigator and former Solicitor General Paul Clement has already filed a lawsuit defending the right of prisoners to gain access to news about public life. Indeed, government can be held accountable only when citizens have information about the actions of their representatives.
Many will resist the idea of a prison constituency. The point of prisons, they say, is to inflict punishment, not to allow organizing. But this is shortsighted. Prison is itself already severe punishment. The deprivation of liberty and the loss of control over everyday interaction, including the ability to see one’s loved ones on a daily basis, are all severe constraints imposed by incarceration. One can be punished without being subjected to civic exile.
Some will argue that it is enough to allow prisoners to regain their right to vote after release. But we cannot expect prisoners to be deprived of all rights and then emerge from prison ready to use them well. The new consensus around post-release enfranchisement demands a smarter way to think about prisoners’ political rights behind bars. A prison constituency with rights to vote and related rights of free speech can engage in civic activism that will continue after release. Although voters in Massachusetts saw prisoner political participation as a kind of insurrection, it is nothing like the violent insurrections that marked prisons of the 1970s. As Joe Labriola, chairman of a Massachusetts civic prison organization called the Norfolk Lifers Group, put it, “In the ’70s, we thought we could make change with violence. Our whole point now is to make prisoners understand that we can make changes by using the vote. We have the ability to move prisons in a new direction.”
Research by Avidit Acharya, Matthew Blackwell and Maya Sen suggests another reason to care about voting in prison: They show that even temporary gaps in voting will have a long-term impact on participation. If we really care about felons’ post-release political participation, it is important that they be able to participate while they are in prison....
The creation of a prison constituency is not yet on the national agenda. But the increasing end to post-felony disenfranchisement makes this a good time to think about deeper changes to the way we treat the incarcerated. In the meantime, alternative measures could move things in the right direction: We should affirm nationally and, if need be, litigate for the right of prisoners to form PACs on the model of the Massachusetts group. Although legitimate concerns exist about the impact of PAC money on politics, these committees do provide a way to further a group’s policy interests. We can no longer grant that right to non-incarcerated citizens as a matter of free speech and deny it to prisoners, who are, according to the Supreme Court, citizens no less. The backlash from Massachusetts’ citizens was from an era in which mass incarceration was lauded and prison organizing was anathema in national politics. But today, citizens from both political parties are mobilizing against the harsh prison policies of the 1990s. Giving prisoners the right to free political speech is a sensible corrective to our misguided practice of mass incarceration.
In the end, restoring these basic rights is not only the right thing to do constitutionally; it could also present positive solutions to a major national political problem. The prison system would be more effective if it were accountable to its constituents. Prisoners have often committed heinous crimes. But they remain a part of our democratic polity, and we can learn from what they have to say.
June 21, 2016
"Society would benefit from rewarding attorneys for identifying the wrongly and unnecessarily imprisoned"
The title of this post is the subheading of this great new article in the latest issue of Regulation published by the Cato Institute. The article, authored Christopher Robertson and Jamie Cox Robertson, carries the main title of "Reducing Wasteful Incarcerations," and here are excerpts from the start and heart of the article:
Prisons are essential to a safe and civil society. Prisons are also costly for the taxpayers whose government houses, feeds, medicates, and supervises millions of people underlock and key. This expense is compounded by errors in the U.S. legal system that produces both false guilty verdicts and overly harsh penalties. It’s time for the United States to take a closer look at these unnecessary incarcerations. By working to release prisoners who don’t belong in prison, we can lower the costs of the prison system — not to mention restore freedom to people who are wrongly being deprived of it. Unfortunately, it is difficult to identify which prisoners are wrongly incarcerated, and itwould take an enormous investment of professional expertise and money to produce that information. However, we could make valuable progress on this issue by offering appropriate incentives for attorneys to identify some of these wasteful incarcerations, thus saving public money and serving the ends of liberty....
Under current law, most prisoners probably deserve to be there, and there is no simple algorithm for identifying which ones don’t. The challenge is to separate the wheat from the chaff, and that requires professional skills and the investment of both time and money. Currently, to do this sorting, we largely depend on charity, luck, and pluck, which is no way to run a multibillion dollar government enterprise.
A better approach would be for the government to increase funding for public defenders so they can do more post-conviction litigation. Some public defenders already have in-house innocence projects. Still, funding for public defenders’ offices is notoriously scarce, the salaries offered for these cases often fail to attract the best attorneys needed to undertake such complex work, and the overworked offices naturally triage in favor of new cases.
Of course, we could spend more on public defenders. But as a centrally planned solution, it’s hard to assessthe optimal level of investment. Prior reform efforts suggest that additional spending on public defenders may also be politically infeasible because it is often viewed as providing a service for criminals.
Instead, governmentsshould consider using a contingent-fee system for post-conviction counsel. Attorneys would only receive this fee if they successfully show that a prisoner’s continued incarceration is wrongful. The fee could be based on a simple proportion of the estimated amount the government would save by stopping the incarceration — perhaps 50% of those costs. Or, the system could be set up like the statutory fee paid to civil rights attorneys, taking into account a reasonable hourly rate multiplied by a factor to recognize the low chances of prevailing. In the False Claims Act, passed during the Civil War to root out fraud by government contractors, and the more recent whistle blower statute that the Internal Revenue Service uses to expose tax evaders,we have precedents for paying financial rewardsthat align the interests of knowledgeable individuals and the government.
The advantage of a contingent fee is that it gives attorneys an incentive to search for worthy cases and bring them to prosecutors and the courts, which is exactly what a cost-conscious government needs. Unlike desperate and unskilled prisoners representing themselves, attorneys would have no incentive to clog the courts with frivolous claims for post-conviction relief. Any such claim would require the investment of time and money without promise of return. Instead, we should expect a small industry of specialist attorneys to develop, at first focusing on the low-hanging fruit, but then becoming more specialized to identify entire categories of cases where review is most promising.
Bureau of Justice Statistics releases new detailed report on recidivism of federal offenders
This official press release reports on some of the interesting highlights of this interesting new report from the Bureau of Justice Statistics about recidivism rates and patterns for federal offenders. The report is formally titled "Recidivism of Offenders Placed on Federal Community Supervision in 2005: Patterns from 2005 to 2010." Here is the text of the BJS press release on the report:
Of the nearly 43,000 federal offenders who were placed on federal community supervision in fiscal year 2005, an estimated 43 percent were arrested at least once within five years of their placement, the Bureau of Justice Statistics (BJS) announced today. An estimated 18 percent of these offenders were arrested at least once within one year of placement on community supervision and 35 percent were arrested at least once within three years of placement.
An estimated 80 percent of offenders who were placed on federal community supervision in 2005 were male. More than a third (41 percent) were white and nearly a third (31 percent) were black. An estimated 28 percent were age 29 or younger and about 42 percent were age 40 or older.
The first arrest offense for federal offenders after placement on community supervision varied by federal and nonfederal offenses. Among federal offenses, public order offenses, such as probation violations, accounted for 90 percent of first arrests of federal offenders after placement on community supervision, compared to 33 percent of first arrests for nonfederal offenses.
In comparing federal and state prisoners placed on community supervision, almost half (47 percent) of federal prisoners were arrested within five years, compared to more than three-quarters (77 percent) of state prisoners. Nearly a third (32 percent) of federal prisoners returned to prison within five years of their release to community supervision, compared to more than half (59 percent) of the state prisoners.
Other findings include —
Nearly a quarter (23 percent) of federal offenders on community supervision were directly sentenced to probation, while more than three-quarters (77 percent) began a term of community supervision following release from prison.
An estimated 70 percent of federal offenders on community supervision had at least one prior nonfederal arrest, and more than a third (35 percent) had four or more prior nonfederal arrests.
Open letter from large group of reform advocates urges Prez Obama to "accelerate the process" for granting clemency
As reported in this new USA Today piece, headlined "Experts warn White House that time is running out for clemency initiative," an impressive group signed on to this open letter to Prez Obama discussing his clemency activities. Here are excerpts from the USA Today reporting providing some pf the leteer's context and content:
Thousands of federal inmates could be eligible to have their sentences reduced under the Obama administration's initiative to free non-violent offenders from prison, but experts are warning the White House that time is running out for the president to take action.
A record-setting number of clemency petitions, lack of resources and a confusion over eligibility have hampered President Obama's plan to use his constitutional pardon power to shorten sentences, particularly for low-level drug offenders serving mandatory minimum sentences. If those inmates are going to have any hope, President Obama needs to personally intervene in the process, a group of advocates, law professors and attorneys said in a letter to the president Tuesday.
"The initiative has been plagued by bureaucratic inefficiencies that have kept petitions that meet all of your stated criteria from reaching your desk," the letter said. "We are concerned that as your days in office diminish, the clemency initiative is moving too slowly to meet the goals you set when you announced it in 2014."
The letter was signed by 41 people, led by Julie Stewart of Families Against Mandatory Minimums and including and law professors from Harvard, Yale, Georgetown, Berkeley, Columbia, Northwestern, New York University and others. Also notable: former White House special adviser Van Jones and former U.S. District Judge Nancy Gertner.
In response, the White House said Obama "has demonstrated a commitment to the commutations process not seen by any other president in the modern era." He's issued more commutations than the past seven presidents combined, written personal letters to clemency recipients and met with recipients to urge society to give them second chances.
"As we have said, the president will continue to issue additional commutations throughout the remainder of his time in office," said Assistant White House Press Secretary Brandi Hoffine. "The clemency process alone, however, will not address the vast injustices in the criminal justice system resulting from years of unduly harsh and outdated sentencing policies."
Obama has stepped up the pace of commutations in his last year in office, no longer waiting until the end of the year to announce clemency decisions. Obama granted 61 commutations in March, 58 in May and 42 this month — part of what White House Counsel Neil Eggleston said was a deliberate attempt to grant clemency on a more regular basis. In all, Obama has commuted the sentences of 348 people, more than any president since Franklin Roosevelt. (He's also granted just 70 pardons, fewer than any full-term president since 1800.)
But according to the Office of Pardon Attorney, 11,861 commutation petitions were still pending as of June 6, fueled largely by the Judtice Department's call for more applications from volunteer defense attorneys in 2014. And this isn't the first time there have been warnings of a backlog in the process. A year ago, former Pardon Attorney Deborah Leff told defense lawyers that "the clock is running," and that petitions weren't coming in quickly enough. There were questions about the eligibility criteria, and many cases required a complete re-examination of court and prison records. Then in January, Leff resigned, citing a lack of resources and interference from Deputy Attorney General Sally Quillian Yates that prevented her recommendations from reaching the president's desk.
I had the honor of being asked to sign on to this open letter, and I agree with nearly all of its sentiments. But, as I stressed in this post a few months ago, I have been clamoring for clemency reform since Prez Obama's first day on the job, and I remain deeply disappointed and troubled that there seems to have been no serious interest or commitment to any kind of structural/institutional reform in this space. As a result, I did not feel I could comfortable sign this letter because it includes a sentence stating that, in th clemency arena, the signers "believe [Prez Obama's] leadership will bring lasting change to the country and set the table for further reforms in future administrations."
I certainly do not want to unduly criticize Prez Obama's (still very important) efforts in this arena, and I am especially pleased to see this open letter getting press attention. But, unless Prez Obama does something more than just grant a few hundred more commutations (which is what I am expecting to see in the coming months), I am still going to view his Presidency in terms of a unique missed opportunity to create a criminal justice reform legacy in this historically and constitutionally important arena.
"What is 'violent' crime?"
The question in the title of this post is the very first sentence of this effective Salon commentary by Benjamin Levin. The commentary has this (much less pithy) full headline and subheadline: "It’s time to rethink 'violent' crime: How mislabeling misconduct contributes to our bloated criminal justice system: The distinction between violent and nonviolent crime is a problematic metric for determining criminal punishment." And here are excerpts:
What is “violent” crime? Perhaps that seems like an easy question — murder is; tax evasion isn’t. But the distinction between violent and nonviolent crime has proven tricky for lawyers, judges and legislators.
Policy debates about proper punishments or enforcement too often break down because the various stakeholders get hung up on whether the crime in question is “violent.” If we are serious about addressing mass incarceration and our bloated criminal justice system, it’s time to rethink what counts as violent crime.
Perhaps nowhere is this issue more evident than in recent debates about drug crime. Where the bipartisan push to reduce prison populations has focused on “nonviolent drug offenders,” sentencing reform opponents have argued that drug crime is inherently violent.
Last year, the National Association of Assistant U.S. Attorneys (an organization representing federal prosecutors) published a white paper arguing that drug trafficking is violent crime. Last month, William Bennett and John Walters (the drug czars for Presidents George H.W. Bush and George W. Bush, respectively), penned an op-ed echoing this claim.
I think that Bennett and Walters are wrong on the facts, but their argument also highlights the problem with using the violent/non-violent distinction as a relevant metric of criminal punishment.
Bennett and Walters claim that drug trafficking is violent because of the harms that drugs themselves do (i.e., by hurting users and by imposing third party harms). Notably, their claim isn’t that drug dealers use violence to make money and control their turf. Indeed, a body of research shows that prohibition – not the drugs themselves — has made drug dealing a dangerous industry. Rather, their claim is that drug dealing is violent because it has victims. And that’s a much broader claim.
They’re certainly right that many illegal drugs carry with them severe health risks and risks to third parties, causing danger at home, in the workplace, and on the road. But does that make drug dealing a “violent crime”?
Bennett and Walters’s argument appears to rest on an expansive definition of violent – an act is violent if it does harm in the world or if people suffer directly or indirectly because of it. This definition would capture many traditional violent crimes (murder, rape, assault, etc.), but it would also sweep in a great deal of conduct that does harm, directly or indirectly. Why isn’t selling alcohol or cigarettes a violent act? What about gun possession? Drunk driving? Theft? Or even tax evasion?
While the Supreme Court has struggled to define when conduct is “violent,” the real-world consequences of this definitional question are critically important: the law often treats violent and nonviolent crime very differently. Many laws govern the conduct of those with criminal records, restricting housing, employment, voting and a range of benefits. These laws often depend upon the nature of the underlying offense — a violent felony might preclude someone from finding work in a given industry; a nonviolent conviction might not. Additionally, a conviction for a violent (as opposed to a nonviolent) crime might trigger a much longer sentence if an individual commits another crime — even if the second crime is nonviolent or less serious....
Certainly, there are many cases in which most of us would agree that the alleged conduct is violent. And there may be cases in which most of us would agree that conduct is nonviolent. (And, those latter cases often serve as the easiest point of bipartisan sentencing reform.) Yet Bennett and Walters’s argument shows that most harmful or objectionable conduct might be classified as violent. If a determination that crime is violent rests simply on finding someone who suffers directly or indirectly based on the act in question, then the definition knows no bounds.
If “violent crime” means so many things, then it only creates the illusion that society has sorted out the true “bad guys” or punished the worst conduct. Instead, it becomes a proxy for social harm, risk prediction, or moral condemnation. It may be that consensus on questions of criminal punishment is an impossible goal. But continuing to cast all objectionable conduct as violent is counterproductive and makes meaningful compromise and reform even more difficult.
Intriguing review of Georgia's intriguing modern history with capital punishment
Because many modern landmark Supreme Court death penalty cases came from Georgia (e.g., Furman, Gregg, Coker, McKlesky), the Peach State will always have a plum role in any story of the modern history of the death penalty. And this recent local article, headlined "Georgia executions rise, while death sentences plummet," details why Georgia's most recent history with capital punishment also merits attention. Here is how the piece starts:
It’s Georgia’s new death penalty paradox: the state is executing inmates at a record clip, but prosecutors almost never seek the death penalty anymore, and juries refuse to impose it when they do.
During each of the past two years, Georgia executed five inmates. If, as expected, the state carries out another execution later this year, it will have put more people to death — six — in 2016 than in any single year since the U.S. Supreme Court reinstated capital punishment four decades ago. But the last time a Georgia jury imposed a death sentence was in March 2014. And district attorneys have been turning away from death as a sentencing option, more often allowing killers to receive sentences of life in prison without the possibility of parole.
A decade ago, state prosecutors filed notices of intent to seek the death penalty against 34 accused killers. That number dropped to 26 in 2011 and to 13 last year. How many times have Georgia DAs sought the death penalty so far this year? Once. And this was against a man accused of killing a priest — a clergyman who had signed a document saying if he died a violent death he did not want his killer to face the death penalty.
The incongruity of the increasing numbers of executions and the plummeting numbers of death sentences took both prosecutors and defense attorneys by surprise. “Wow,” Atlanta criminal defense attorney Akil Secret said. “Maybe the times are changing.” The precipitous declines raise the question of whether prior capital sentences were justified, Secret said. “If a life-without-parole sentence is sufficient for today’s worst crimes, why isn’t it sufficient for those crimes from the past where death was imposed?”
June 20, 2016
"Ban the Box, Criminal Records, and Statistical Discrimination: A Field Experiment"
The title of this post is the title of this revealing new empirical paper available now via SSRN and authored by Amanda Agan and Sonja Starr. Here is the abstract:
“Ban-the-Box” (BTB) policies restrict employers from asking about applicants’ criminal histories on job applications and are often presented as a means of reducing unemployment among black men, who disproportionately have criminal records. However, withholding information about criminal records could risk encouraging statistical discrimination: employers may make assumptions about criminality based on the applicant’s race.
To investigate this possibility as well as the effects of race and criminal records on employer callback rates, we sent approximately 15,000 fictitious online job applications to employers in New Jersey and New York City, in waves before and after each jurisdiction’s adoption of BTB policies. Our causal effect estimates are based on a triple-differences design, which exploits the fact that many businesses’ applications did not ask about records even before BTB and were thus unaffected by the law.
Our results confirm that criminal records are a major barrier to employment, but they also support the concern that BTB policies encourage statistical discrimination on the basis of race. Overall, white applicants received 23% more callbacks than similar black applicants (38% more in New Jersey; 6% more in New York City; we also find that the white advantage is much larger in whiter neighborhoods). Employers that ask about criminal records are 62% more likely to call back an applicant if he has no record (45% in New Jersey; 78% in New York City) — an effect that BTB compliance necessarily eliminates. However, we find that the race gap in callbacks grows dramatically at the BTB-affected companies after the policy goes into effect. Before BTB, white applicants to BTB-affected employers received about 7% more callbacks than similar black applicants, but BTB increases this gap to 45%.
June 20, 2016 in Collateral consequences, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)
A couple of SCOTUS wins for prosecution in procedural cases
There really are no more big sentencing cases pending on the SCOTUS docket, but the Supreme Court is still resolving a number of cases dealing with a number of criminal justice issues. Today, two such cases were handed down, and here are the basics (with links) via How Appealing:
Justice Samuel A. Alito, Jr. delivered the opinion of the Court in Taylor v. United States, No. 14-6166. Justice Clarence Thomas issued a dissenting opinion....
Justice Thomas delivered the opinion of the Court in Utah v. Strieff, No. 14-1373. Justice Sotomayor issued a dissenting opinion, in which Justice Ginsburg joined in part. And Justice Kagan issued a dissenting opinion, in which Justice Ginsburg joined.
For some early commentary, here are two posts from Crime & Consequences on these cases:
- An Incremental Win for Evidence from Good-Faith Police Searches
- Crime and Commerce, Interstate and International
I expect C&C and SCOTUSblog and others will have more commentary on these cases before too long, though neither appear to blockbusters. And because I am on the road most of the rest of the day, I hope commentors will flag anything in these opinions that ought to be of special interest to sentencing fans.
GVRs based on Foster generates opinions, including dissent from Justices Alito and Thomas
Last month, as reported here, the Supreme Court's reversed a conviction in Georgia capital case, Foster v. Chapman, because the Court had a "firm conviction" juror strikes in the case were "motivated in substantial part by discriminatory intent." Today, at the end of this order list, the Court now has relied on Foster to issue this order in a few cases:
The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the Supreme Court of Mississippi for further consideration in light of Foster v. Chatman, 578 U. S. ___ (2016).
Justice Ginsburg explains this order via a concurrence in one of the cases, while Justice Alito joined by Justice Thomas cries foul. Here is how Justice Alito starts his dissent on one of these cases:
This Court often “GVRs” a case—that is, grants the petition for a writ of certiorari, vacates the decision below, and remands for reconsideration by the lower court—when we believe that the lower court should give further thought to its decision in light of an opinion of this Court that (1) came after the decision under review and (2) changed or clarified the governing legal principles in a way that could possibly alter the decision of the lower court. In this case and two others, Williams v. Louisiana, No. 14–9409 and Floyd v. Alabama, No. 15–7553, the Court misuses the GVR vehicle. The Court GVRs these petitions in light of our decision in Foster v. Chatman, 578 U.S. ___ (2016), which held, based on all the circumstances in that case, that a state prosecutor violated Batson v. Kentucky, 476 U.S. 79 (1986), by striking potential jurors based on race. Our decision in Foster postdated the decision of the Supreme Court of Mississippi in the present case, but Foster did not change or clarify the Batson rule in any way. Accordingly, there is no ground for a GVR in light of Foster.
June 19, 2016
Some highlights from Marijuana Law, Policy & Reform . . . for Fathers' Day(?)
I am not sure if it is in any way fitting to be blogging about marijuana reform topics on Fathers' Day, but polls do pretty consistently show that men are generally more supportive of reform than women. That reality aside, this review of some recent postings from my Marijuana Law, Policy & Reform blog highlights that fathers and mothers, sons and daughters all ought to be paying attention to this dynamic arena of law and policy:
Alabama appeals court says, in essense, "roll tide" to its capital sentencing process
As reported in this post from a few months ago, a county judge had declared Alabama's capital murder sentencing scheme unconstitutional because it allows judges to override jury recommendations of life without parole and instead impose the death penalty. But, as reported by this local article, late last week an Alabama appeals court took a different view. Here are the basics:
An Alabama appeals court on Friday ordered a Jefferson County judge to vacate her rulings earlier this year that declared the state's capital punishment sentencing scheme unconstitutional. In its order the Alabama Court of Criminal Appeals says the state's capital sentencing scheme is constitutional and told Jefferson County Circuit Court Judge Tracie Todd to vacate her March 3 order in the pending capital murder cases of four men that says otherwise.
The Alabama Attorney General's Office had filed four petitions for a writ of mandamus asking the Alabama Court of Criminal Appeals to direct Todd to vacate her orders and allow the state to decide whether to seek imposition of the death penalty in those cases if it decides.
The cases involve Kenneth Eugene Billups, Stanley Brent Chapman, Terrell Corey McMullin, and Benjamin Todd Acton who were all indicted for various counts of capital murder. Chapman and McMullin are charged in the same case and the others in separate cases. Before their trials, the men each filed a motion to bar imposition of the death penalty in their cases and to hold Alabama's capital-sentencing scheme unconstitutional based on the United States Supreme Court's decision in January declaring Florida's death sentencing system unconstitutional....
Todd agreed and declared the capital murder sentencing law unconstitutional in a 28-page order. "The Alabama capital sentencing scheme fails to provide special procedural safeguards to minimize the obvious influence of partisan politics or the potential for unlawful bias in the judiciary," Todd stated in her ruling. "As a result, the death penalty in Alabama is being imposed in a "wholly arbitrary and capricious" manner."
The Court of Criminal Appeals, however, said Friday that the state's capital sentencing law is constitutional. "Alabama's capital-sentencing scheme is constitutional under (U.S. Supreme Court rulings) Apprendi, Ring, and Hurst, and the circuit court (Todd) erred in holding otherwise and prohibiting the State from seeking the death penalty in capital-murder prosecutions," the appeals court opinion on Friday states.
The Alabama Attorney General's Office established the prerequisites for the appeals court to issue an order to Todd telling her to vacate her opinion, the appeals court stated in its order. "Therefore, the circuit court (Todd) is directed to set aside its order holding Alabama's capital-sentencing scheme unconstitutional and to allow the State to seek the death penalty in capital-murder prosecutions if it chooses to do so.
The appeals court ruled that under Alabama's capital-sentencing scheme a capital murder defendant "is not eligible for the death penalty unless the jury unanimously finds beyond a reasonable doubt, either during the guilt phase or during the penalty phase of the trial, that at least one of the aggravating circumstances ... exists."
The court noted that Florida's law, which was struck down by the U.S. Supreme Court in January as unconstitutional, was conditioned on a first-degree-murder defendant's eligibility for the death penalty based on a finding by the trial judge, rather than the jury, that an aggravating circumstance existed. The appeals court also criticized the fact that the Attorney General was not given a the required notice that a state law was being challenged as unconstitutional and that Todd then didn't allow an assistant AG to speak at the hearing she held before making her ruling. Todd also had pre-written her ruling before the hearing, the court stated.
Judges Mike Joiner and Liles Burke concurred with the majority although they differed on some points in separate opinions. Both Joiner and Burke criticized Todd's order. Todd's order "contains sparse analysis on the application of Hurst to Alabama's capital-sentencing scheme," Burke wrote. "The majority of the order is devoted to the trial court's opinions regarding partisan politics, the effects of an elected judiciary, court funding, and the propriety of the death penalty in general," Burke states. "Additionally, the trial court extensively cites secondary sources, including materials from "Project Hope to Abolish the Death Penalty" as well as from the Web site of the Equal Justice Initiative, a nonprofit organization whose attorneys are representing the defendants in this very proceeding." "In reviewing the materials that were filed with this Court, I find no mention of these issues," Burke writes. "Thus, I question whether the trial court's (Todd's) ultimate conclusion is based on its analysis of Hurst or on the trial judge's personal opinions regarding Alabama's death penalty."
Alabama's attorney general reacted to the ruling early Friday night. "Today's decision by the Alabama Court of Criminal Appeals is the first case to affirm under Hurst that Alabama's capital sentencing is constitutional," Alabama Attorney General Luther Strange stated in a Friday evening press release. "The Appeals Court vacated the Jefferson County Court's March order and thereby held that Alabama can continue to seek the death penalty in capital murder prosecutions."
It's unclear, however, how Friday's ruling might affect recent orders by the U.S. Supreme Court telling the Alabama Court of Criminal Appeals to reconsider the appeals of three Alabama death row inmates in light of the Supreme Court's ruling earlier this year striking down Florida's capital punishment scheme.
The full 58-pages of opinions from the Alabama Court of Appeals can be accessed at this link.
Some prior related posts:
- Post-Hurst hydra heads emerging in Alabama
- Post-Hurst hydra takes big bite into some capital cases in Alabama
- Is SCOTUS essentially telling Alabama its capital punishment process in unconstitutional through Hurst GVRs?
"Collateral Consequences and the Preventive State"
The title of this post is the title of this article by Sandra Mayson just posted to SSRN. Here is the abstract:
Approximately eight percent of adults in the United States have a felony conviction. The “collateral consequences” of criminal conviction (CCs) — legal disabilities imposed by legislatures on the basis of conviction, but not as part of the sentence — have relegated that group to permanent second class legal status. Despite the breadth and significance of this demotion, the Constitution has provided no check; courts have almost uniformly rejected constitutional challenges to CCs. Among scholars, practitioners and mainstream media, a consensus has emerged that the courts have erred by failing to recognize CCs as a form of additional punishment. Courts should correct course by classifying CCs as “punishment,” the consensus holds, such that constitutional constraints on punishment will apply.
This Article argues for a different approach. The consensus view overlooks the fact that most CCs invoke a judgment of dangerousness as the basis for limiting individual liberty. Given their predictive logic, the Article contends that there are serious costs to classifying (most) CCs as punishment and that the courts have reached a defensible result in declining to do so. Where they have erred is in assuming that, as mere regulation, CCs are benign. On the contrary, laws that restrict certain people’s liberty solely on the basis of their perceived propensity to commit future crimes raise both moral and constitutional concerns. Rather than classify CCs as punishment, this Article contends that the better approach to constitutional adjudication of most CCs — for both theoretical and tactical reasons — is to recognize them as predictive risk regulation and seek to develop appropriate constraints.
Even after Orlando shootings, GOP leaders in Congress unwilling to allow more medical research into gun deaths
Though I generally favor so-called "common-sense" gun regulations, I am not sure that more gun regulations will really help to reduce gun violence. But I am sure that more research on gun violence and gun-related deaths could and should help us better engineer laws to advance public safety. Consequently, I was saddened and disappointed to see this recent article in The Hill. It is headlined "GOP rebuffs doctors on gun research," and here are excerpts:
The American Medical Association’s new push to unfreeze federal funding for gun research is hitting a wall of resistance in the Republican Party. In the wake of the mass shooting in Orlando, the nation’s leading doctors group announced Tuesday it plans to “actively lobby” against a nearly 20-year-old budget rule that has prevented federal researchers from studying gun-related deaths.
The near-unanimous vote, which took place two days after Orlando shooting early Sunday morning, puts the powerful doctor’s lobby at odds with Second Amendment supporters who have argued that gun-related violence is no different from other violent acts.
Dr. Alice Chen, the executive director of the nonprofit Doctors for America, called the move a “game changer” for the long-standing fight to lift the research restrictions. “The strength of the AMA's vast membership, plus that of the over 100 medical and public health groups across the country, will be hard for Congress to ignore,” she said.
But Republicans in Congress, including those in the House Doctors Caucus who are members of the group, are soundly rejecting the AMA’s calls for research into gun-related deaths. “I don’t particularly see the need for it, quite frankly,” Rep. Tom Cole (R-Okla.), who leads health funding for the House Appropriations Committee, told The Hill on Thursday.
Rep. Michael Burgess (R-Texas), a member of the House Doctors Caucus, said he also opposed the policy change. “Although I’m a member of the AMA, I don’t always agree with the position they take,” Burgess told The Hill on Thursday. “It seems to have worked well. I don’t favor changing it,” Burgess said of federal researchers staying away from the issue of guns....
It’s becoming increasingly unlikely that the gun research will be part of Congress’s response to the Orlando shooting. Cole, the Oklahoma Republican, said GOP leaders are much more likely to boost funding for the FBI to improve background checks. “Research is good, but unfortunately, this administration has used terrorism despicably to advance their gun control issue. It doesn’t shock me to tears that he might use [Centers for Disease Control and Prevention] research rules to do the same,” Rep. Trent Franks (R-Ariz.) said Thursday.
Democrats this week already forced the GOP-led House Energy and Commerce Committee to vote on the research issue during its markup of a mental health bill. That amendment, from Rep. Tony Cárdenas (D-Calif.), failed on a party line vote of 23-29.
The moratorium on federal gun research stems from a 1997 budget amendment that prohibits federal funds “to advocate or promote gun control” — language that researchers say has had a chilling effect. Republicans adopted the so-called Dickey amendment, named after Rep. Jay Dickey (R-Ga.), in 1997 after strong lobbying from groups such as the National Rifle Association. Gun rights supporters have long argued that government agencies use studies to advance gun control, something researchers deny.
Dickey has since reversed course and is now campaigning to change the wording in the law. Other gun rights advocates have remained strong in their opposition. Larry Keane, general counsel for the National Sports Shooting Association, said the Centers for Disease Control and Prevention has “misdiagnosed the issue.”
“Our view is that criminal violence involving firearms is a criminal justice [issue],” Keane said in an interview Thursday. “The CDC should focus on its mission, which is addressing diseases and illnesses like cancer and preventing an outbreak of the Zika virus.”
The renewed push for lifting the federal research restrictions began on Tuesday, after the AMA’s policy-making arm, the House of Delegates, decided by voice vote to “actively lobby” on the issue. It also officially declared gun violence to be a "public health crisis” for the first time, over the protest of some members.
American Academy of Family Physicians president, Dr. Wanda Filer, who attended the meeting in Chicago, said she heard “very few nay votes” during the vote. The resolution had been drafted late into the night on Sunday by a group of young doctors who skipped planned conference festivities to draft it.
It was the second year in a row the AMA’s conference was interrupted by reports of a mass shooting. Last year, the AMA held a moment of silence after the shooting at a historic black church in Charleston, S.C., that killed nine people....
Filer said the AMA’s vote adds momentum to the cause that many physician groups, like hers, already supported. “Without research and being brave enough to ask the questions, we’re going to have ill-informed, emotional arguments,” Filer said Thursday. “What we’re saying is, we need research.”
Importantly, I do not disagree with the gun rights advocates' view that "criminal violence involving firearms is a criminal justice [issue]," but accepting that notion does not logically justify precluding medical research on gun-related deaths. If our society is truly committed to reducing gun deaths, we ought to have bright researchers working in all disciplines studying this grave problem to try to discover evidence-based strategies to improve public safety. But, sadly, it seems that even after the worst mass shooting in recent US history, partisan politics can still preclude sensible policymaking.