July 2, 2016
"Couriers Not Kingpins: Toward a More Just Federal Sentencing Regime for Defendants Who Deliver Drugs"
The title of this post is the title of this new paper authored by Kevin Lerman and recently posted to SSRN. Here is the abstract:
After decades of tweaking and modification, the federal sentencing guidelines have yet to meaningfully separate high-level drug traffickers from their unsophisticated underlings. The Mitigating Role Guideline — designed in part to alleviate the effects of quantity-based drug sentencing — fails to reach many of the people prosecuted for their work at the lowest rungs of drug-trafficking hierarchies. This includes couriers and mules who transport drugs for small amounts of money.
Quantity-based sentencing guidelines qualify couriers and mules for extremely high sentences, which they must work down from by proving they deserve one or more sentencing reductions. The Mitigating Role Guideline requires defendants to prove their role makes them “substantially less culpable” than similarly situated drug traffickers. This mushy standard — along with a host of other obstacles — results in denial of sentencing reductions. Mitigating Role is all-the-more treacherous because it triggers further sentencing reduction that frequently apply to couriers and mules. These reductions are: (1) Role Cap, which counteracts quantity-based calculations that the Sentencing Commission has determined overstate low-level drug defendants’ culpability; and (2) the Methamphetamine Importation Enhancement, which extends sentences unless mitigating role is granted.
This Paper argues the Mitigating Role Guideline must be amended to more consistently account for low-level defendants. An amended guideline should assess defendants’ functional roles rather than engage in an obscure comparison with so-called average participants. It should expressly disavow “indispensability” analysis, which incorrectly equates basic but-for causation with culpability. And the guideline should expressly distinguish between the analysis required for Mitigating Role and the analysis for Aberrant Behavior. Conflation of the two guidelines frequently leads to denials of sentencing reductions. Finally, given past failures, guidelines depending on Mitigating Role should no longer depend on it. Rather, they should be "de-coupled," so they take effect for any defendant’s role that is not aggravating. Because quantity-based guidelines are perilously high for all but a tiny fraction of violent drug trafficking defendants, these reductions for Role Cap and subtraction of the Methamphetamine Enhancement should be applied presumptively to limit the impact of overly harsh role determinations.
Can and will big data help reduce mass incarceration?
The question in the title of this post is prompted by this intriging Wired piece headlined "The White House Is on a Mission to Shrink US Prisons With Data." Here are excerpts:
The Obama administration believes better data within the criminal justice system could [help address mass incarceration. Last week,] the White House announced its new Data-Driven Justice Initiative, through which 67 cities and states will work with each other, as well as with leading tech companies like Amazon and Palantir, to find new ways to use data to shrink the size of their local prison populations.
“What we’ve seen as we’ve engaged with state and local leaders across the country is that there are people who simply do not need to be in our jails,” Valerie Jarrett, senior advisor to the President, said on a call with journalists today. Taking a closer look at the data, she said, can help identify who those people are. In some cities, that’s already starting to happen. The White House pointed to one example in Mecklenburg County, North Carolina, which began diving into its own data back in 2014 to find low-risk people in jail who could be released early. That intervention led to a 40 percent reduction in the county jail population. “That’s 40 percent, and they have had no increase in reported crime,” Jarrett said. “Pretty amazing.”
Of course, data mining is not the forte of most local law enforcement, which is why the White House is also asking for the tech industry’s help. As part of the announcement, Amazon is convening a consortium on data interventions in criminal justice that will be attended by companies like Palantir and organizations like Code for America. The goal of the summit, according to Lynn Overmann, senior policy advisor to the U.S. Chief Technology Officer, is to convene the country’s top data scientists, technologists, and developers together with local governments to figure out “the solutions most likely to work as broadly as possible.”
Some tech companies are donating their existing tools to the member cities and states. For instance, RapidSOS, a company that allows people to submit their exact location data to emergency personnel, is offering its product to five cities for free for the next 10 years. Several research institutions like New York University and the University of Chicago are also partnering with cities and states to research their data strategies.
In a time when Republicans and Democrats can’t seem to agree on anything, prison reform has become an unlikely unifier. Recently, House speaker Paul Ryan has become an outspoken advocate for sentencing reform. That type of across-the-aisle support could help these data efforts spread more quickly. Already, among the seven states that signed on to the Data-Driven Justice Initiative, three have Republican governors. As part of the commitment, they promise to merge criminal justice and health system data to identify people who are most at risk, create new protocols for first responders dealing with mental health issues, and inform pre-trial release decisions.
Of course, using technology to decide whether someone stays behind bars or not is sure to be fraught with controversy as these programs roll out all over the country. After all, if people are concerned about algorithms deciding the news they see, what happens when algorithms decide a person’s freedom?
"Should a juvenile sex offender be locked up indefinitely?"
The question in the title of this post is the headline of this PBS Newshour segment, which is focused on Minnesota's experiences with indefinite commitment of sex offenders. Here is a segment of the segment:
Elizabeth Letourneau is one of the nation’s leading experts on juvenile sex offenders. She directs the Moore Center for the Prevention of Child Sexual Abuse at John Hopkins University. She says civilly committing juvenile sex offenders makes little sense, first because it’s incredibly costly. Minnesota spends about $125,000 per offender per year, which is roughly triple the cost of regular prison.
But, most importantly, she says it doesn’t make sense because juvenile offenders are likely not lifetime offenders. "Among youth who are adjudicated for a sexual offense, so they have been arrested, processed, 97 percent to 98 percent will not reoffend sexually. So, truly, the vast majority ... if they are caught committing a sexual offense, will not do it again."
Emily Piper is the commissioner of Minnesota’s Department of Human Services, which oversees the state’s sex offender program. She says only 4 percent of Minnesota’s registered sex offenders are currently civilly committed, and she argues the state is rightly incarcerating the most troubling of those....
In 2011, a class-action lawsuit was brought against the state by a group of offenders in Minnesota’s program, including Craig Bolte, arguing they were not getting any meaningful treatment and were instead being held indefinitely.
And, last year, federal district judge in St. Paul sided with them, saying that Minnesota’s sex offender program was unconstitutional, ruling “It’s a punitive system that segregates and indefinitely detains a class of potentially dangerous individuals without the safeguards of the criminal justice system.”
The state has appealed the decision, and a ruling is expected this fall. In the meantime, state officials say they have already started making changes. Five offenders have been moved into less restrictive settings, and new reviews are being done of all offenders to determine who’s a potential candidate for release and who isn’t.
Even Dru Sjodin’s mother, Linda Walker, admits that maybe some juvenile cases should be reexamined, but she hopes that, in all its reforms, Minnesota will err on the side of caution before releasing anyone.
July 1, 2016
With SRCA now "officially" dead ... send your "thanks" to (failings of) Prez Obama and bipartisan bungling
This Real Clear Politics article, headlined "Hopes Fade for Criminal Justice Reform This Year," serves essentially as an obituary for the effort to get significant statutory federal sentencing reform done before the end of the Obama Administration. Unsuprisingly, Bill Otis is dancing on the grave of these efforts via this post at Crime & Consequences titled simple "Victory." And Scott Shackford at Reason.com has this helpful post mortem titled "Federal Criminal Justice Reform May Fail, and Everybody’s Blaming Everybody Else," highlighting all the finger-pointing now taking place:
The Sentencing and Reform Act modestly updates federal mandatory minimum sentences to make them less brutal in non-violent drug cases and allows federal judges to invoke "safety valve" exceptions to sentence less than the mandatory minimum in certain cases. Probably the most important component of the law is that it would make the Fair Sentencing Act, which lowered the mandatory minimums for crack cocaine-related crimes to those of powder cocaine, retroactive. According to Families Against Mandatory Minimums (FAMM) this could help somewhere around 5,800 people currently serving sentences in federal prison. You can read FAMM's analysis of what's good and bad about the current incarnation of the Sentencing and Reform Act here.
So thousands of prisoners could be stuck serving outdated sentences for cocaine crimes that no longer even apply if this law is not passed. In response to frustration that the bill isn't going anywhere there's a chain of blaming that weaves throughout RealClearPoltics' report:
Grassley merely says he's "disappointed" because he worked hard to get more Republicans on board supporting the law.
Sen. Dick Durbin (D-Ill.), who wrote the bill, blames Republicans, particularly Senate Majority Leader Mitch McConnell (R-Ky.) for offering him "little to no hope" that the legislation would move forward. (He is undoubtedly also referring to conservatives like Arkansas Sen. Tom Cotton.)
Sen. John Corbyn (R-Texas) blames the House of Representatives for not moving more quickly, which he said would have created "momentum" in the Senate for passing the law.
Sen. Orrin Hatch (R-Utah) says the refusal to add reform to mens rea is holding back the legislation. "Mens rea" is the legal concept that convicting a person of a crime should require proving that they had criminal intent to do so. Not all federal laws have this mens rea requirement, and some Republicans want to add it. This has angered some Democrats and the Department of Justice because they believe it would make it harder to convict people (or more accurately, to force settlements) in white-collar criminal cases or cases of corporate misconduct.
Sen. Sheldon Whitehouse (D-R.I.) blames the Koch brothers for helping push the mens rea reform, calling it a "fatal poison pill." Cornyn, however, pointed out that the current Senate bill does not even contain this reform. There are concerns that it will be attached later on.
As the title of this post is meant to suggest, I think the main individual who should be blamed here is President Barack Obama, although lots of other blame can and should be spread around to all the folks who failed to fully appreciate that a series of small "smart on crime" bills would have been far superior and far more likely to become law than the mega-reform bill that was too complicated with too many controversial parts to make passage ever likely.
I will now likely use the long weekend (which I am about to start by going off-line for a while) to reflect on the current federal sentencing reform "big picture" circa mid-2016. I also think this news provides an approrpriate opportunity to begin a series of commentary posts about criminal justice reform during the Obama era, which I will be calling "Missed Opportunities: The Failure of Prez Obama to bring real Hope and Change to Federal Sentencing." Stay tuned.
July 1, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Campaign 2008 and sentencing issues, Campaign 2012 and sentencing issues , Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Who Sentences? | Permalink | Comments (11)
California initiative to reform death penalty in state qualifies for ballot (and will compete with repeal initiative)
As helpfully explained by Kent Scheidegger via this post at Crime & Consequences, an "initiative to fix problems that have obstructed the enforcement of the death penalty in California has qualified for the ballot." The group supporting the effort is called Californians for Death Penalty Reform and Savings, and its website has all the details of its reform efforts. Kent's post provides this additional context and information:
Four years ago, the friends of murderers came within four percent of repealing the death penalty because they had the money to qualify an initiative while the forces of justice did not. Many people believed that the choice was therefore one between repeal and the status quo of a penalty that is never enforced.
Not this time. The status quo will be history come November, and the people have a clear choice between "end it" and "mend it."
If both initiatives pass, the one that gets the greater number of "yes" votes will prevail.
The greatest problem, once again, will be the great disparity in funding. Softness on crime is the cause of deep-pocketed elitists who do not suffer the consequences of crime, while the base for toughness on crime consists mainly of regular folks of modest means who do. The other side will be able to run deceptive ads, and we will have limited ability to counter them with truthful rebuttal through paid advertising. Hopefully we will be able to get the truth out through other means.
Among the interesting aspects of this story to watch in the coming months is whether various prominent California (or national) officials will officially support/endorse the mend or the end proposal. I suspect most will try to avoid talking about the issue, but I am hopeful the press and advocates will press prominent politicans to express a position.
Prior related post:
June 30, 2016
Split Iowa Supreme Court upholds state's broad felon disenfranchisement provisions
As reported in this local article, headlined "Iowa Supreme Court upholds ban on felons voting in Iowa," a divided state Supreme Court rejected a challenge to Iowa's felony disenfranchisement laws. Here is how the press report on the decision starts:
The Iowa Supreme Court ruled against an expansion of voting rights for convicted criminals on Thursday, finding that all felonies are "infamous crimes" resulting in disenfranchisement under the state constitution. The 4-3 decision upholds what critics say is one of the harshest felon disenfranchisement laws in the nation, and means the state will not see a significant shift in voter eligibility ahead of the 2016 election.
Iowa's top elections officer immediately cheered the ruling, while criminal justice reform advocates said they would begin exploring their options for constitutional and legislative reforms. "This ruling goes in line with 150 years of precedence and has been reaffirmed by the people of Iowa and their elected representatives on multiple occasions," Iowa Secretary of State Paul Pate said in a statement. Pate's office oversees elections in the state, and he was named as the defendant in the case.
The American Civil Liberties Union of Iowa, which argued the case before the court, had sought to limit disenfranchisement to a handful of felonies directly relating to elections and governance. If the court had upheld that view, thousands of Iowans with felony convictions could have had their voting rights restored ahead of this November's presidential election. "This is no way (to) run a democracy," ACLU attorney Rita Bettis said in a statement following the decision. The group now intends to draft a constitutional amendment allowing offenders to vote after completing their sentences.
The lengthy ruling from the Supreme Court of Iowa is available at this link, and the majority opinion authored by the court's Chief Justice gets started this way:
This appeal requires us to decide if the crime of delivery of a controlled substance is an “infamous crime” under the voter disqualification provision of the Iowa Constitution. The district court held the crime is an infamous crime, and a conviction thereof disqualifies persons from voting in Iowa. Following the analysis we have used in the past to interpret provisions of our constitution, we agree and affirm the judgment of the district court.
The term “infamous crime” was generally recognized to include felony crimes at the time our constitution was adopted. This meaning has not sufficiently changed or evolved to give rise to a different meaning today. In addition, unlike some past cases when we have interpreted provisions of our constitution, the facts and evidence of this case are insufficient to justify judicial recognition of a different meaning. Constrained, as we must be, by our role in government, we conclude our constitution permits persons convicted of a felony to be disqualified from voting in Iowa until pardoned or otherwise restored to the rights of citizenship. This conclusion is not to say the infamous-crime provision of our constitution would not accommodate a different meaning in the future. A different meaning, however, is not for us to determine in this case. A new definition will be up to the future evolution of our understanding of voter disqualification as a society, revealed through the voices of our democracy.
Among other interesting aspects of this ruling is the wide array of cites to recent legal scholarship appearing in both the majority opinion and the longest dissent. (I bring that fact up not only because it makes me pleased given how much time I give to reading and writing such scholarship, but also because it helps reinforce my belief that Judge Posner is way off base with some recent (and past) comments about the legal academy failing to work on projects of any interest and importance to the bench and the practicing bar.)
New report highlights huge role of a handful of local prosecutors on the size of death rows
This notable new report from Harvard Law School’s Fair Punishment Project highlights the consequential role of just a handful of local prosecutors on the modern US death penalty. The report, titled "America’s Top Five Deadliest Prosecutors: How Overzealous Personalities Drive The Death Penalty," gets started this way (with footnotes removed):
Last year, a journalist asked Dale Cox, then the District Attorney of Caddo Parish, Louisiana, about the wisdom of the death penalty in light of the recent exoneration of Glenn Ford, a man who spent thirty years on death row for a crime that he did not commit. Cox told the reporter: “I think we need to kill more people.” “Revenge,” he said, “brings to us a visceral satisfaction.” Between 2010 and 2015, Cox alone secured one-third of Louisiana’s death sentences.
Cox’s disproportionate use of the death penalty illustrates a point that Justice Stephen Breyer recently made. “It is now unusual to find capital punishment in the United States,” Breyer wrote, because “capital prosecutions are being pursued in only a few isolated counties.” There are more than 3,100 counties, 2,400 head prosecutors, and thousands of line prosecutors in America — yet only a tiny handful of prosecutors are responsible for a vastly disproportionate number of death sentences. The question that this disparity prompts is: Why?
This report analyzes the records of five of America’s deadliest head prosecutors. Three of them personally obtained over 35 death sentences each: Joe Freeman Britt in North Carolina, Bob Macy in Oklahoma, and Donnie Myers in South Carolina. These men shared an obsession with winning death sentences at almost any cost. For example, Joe Freeman Britt, who committed misconduct in more than 36% of his death penalty prosecutions, said: “Within the breast of each of us burns a flame that constantly whispers in our ear ‘preserve life, preserve life, preserve life at any cost.’ It is the prosecutor’s job to extinguish that flame.” The remaining two prosecutors, Lynne Abraham (Philadelphia County, Pennsylvania) and Johnny Holmes (Harris County, Texas), did not personally prosecute as many death penalty cases as the three men above, but nonetheless oversaw the imposition of death sentences against a staggering 108 and 201 people, respectively, during their terms.
Of these five prosecutors, only one — Donnie Myers — remains in office, and he plans to retire at the end of the year. One of the most remarkable findings from our research is the fact that once these prosecutors and their protégés left their positions, death sentences dramatically declined in these jurisdictions — a pattern that has only become clear in the years since their departures.
We also highlight five additional prosecutors who came very close to becoming members of this notorious group. These runners-up have egregious records in their own states, and like the prosecutors above, the striking drop in new death sentences that has occurred in their respective jurisdictions since their departures illustrates their outsized impact on the death penalty.
Unfortunately, the problem of personality-driven capital sentencing has continued beyond the tenure of these prosecutors. Over the past fifteen years, prosecutors have pursued far fewer capital cases and juries have returned far fewer death sentences than in years past. Indeed, in 2015, juries returned just 49 death sentences, the fewest in recent history. This number represents an 84.4% drop from the 1996 high of 315 death verdicts. However, in the increasingly small number of the counties that still actively sentence people to death, a handful of prosecutors dominate death-sentencing statistics.
In the final section of this report, we offer a snapshot of three active prosecutors who, if they continue on their current trajectories, may soon join the ranks of the deadliest prosecutors in America. Taken together, the profiles featured in this report demonstrate that the death penalty has been, and continues to be, a personality-driven system with very few safeguards against misconduct and frequent abuse of power, a fact that seriously undermines its legitimacy.
"The Power of Pell Grants for Prisoners"
The title of this post is the headline of this new New Yorker commentary authored by Clint Smith. Here are excerpts:
Last Thursday, the Obama Administration selected sixty-seven colleges and universities across twenty-seven states to participate in the Second Chance Pell Pilot Program, which aims to “create a fairer, more effective criminal justice system, reduce recidivism, and combat the impact of mass incarceration on communities.” The new initiative could make Pell Grants available to as many as twelve thousand people behind bars. Secretary of Education John B. King, Jr., made sure to address the aforementioned concerns around funding head on, stating that the resources allotted to the pilot program make up less than 0.1 per cent of the thirty-billion-dollar Pell Grants program, and will in no way cut into funding for current or future Pell Grant recipients who are not incarcerated.
As advocates of prison education might note, twelve thousand is a small proportion of the 2.3 million people currently in prison. But the executive action by the Obama Administration is a progressive step forward on correctional education, especially given that legislation like the Restoring Education and Learning (real) Act — which would eliminate the provision in the crime bill barring prisoners in state or federal institutions from Pell Grant eligibility — remains stalled in Congress. Social scientists have known for some time that prison-education programs are a cost-effective and successful means of reducing recidivism. A study by the rand Corporation in 2013 found that incarcerated individuals who participated in educational programs were forty-three per cent less likely to recidivate within three years than those who did not. It also found that correctional education increased the likelihood of obtaining employment once released, with those who participated in programming during their time behind bars thirteen per cent more likely to obtain a job than those who did not....
Being incarcerated does not mean being devoid of the capacity to learn, grow, and think, and it’s critical that prisons provide spaces where learning can be both cultivated and encouraged.
This is what makes the Obama Administration’s program so important. Pell Grants provide resources that assist colleges in building their capacity in prisons, by covering the cost of books, tuition, and fees. But, though certainly beneficial to those men and women who will receive the grants, there are limits to what the program offers. For example, to qualify, a person must be eligible for release within five years of enrolling, which doesn’t address the educational needs of those serving long-term or life sentences.
The benefits of prison education go beyond lowering recidivism rates and increasing post-release employment. It can also rekindle a sense of purpose and confidence. For Jackson, participating in the Boston University prison-education program, and moving closer to obtaining a bachelor’s degree, has fundamentally changed his sense of self — and increased the likelihood that he’ll stay out of prison if the parole board approves his release. The Second Chance Pell Pilot Program means that more people like Jackson will have an opportunity to take college-level classes, improving their chances of remaining out of prison and also of giving them back a sense of purpose that has otherwise been stripped away. Or, as Jackson said about his work, it’s “like you’re doing something with your life.”
Highlighting what brought Justice Thomas and Sotomayor together in Voisine
Noah Feldman has this effective Bloomberg commentary about the recent SCOTUS Voisine ruling headlined "When Opposites Converge Over Domestic Violence." Here are excerpts:
Some two-thirds of the states define assault in a way that includes reckless conduct. The court was therefore under substantial practical pressure to hold that reckless misdemeanor domestic assaults count for purposes of the federal gun law. If it had not, the federal law would have had to be changed or else it wouldn't have applied in those states....
Thomas’s vote [in dissent] can be explained partly on the basis that he doesn’t want to infringe gun ownership. He added a final section to his dissent suggesting as much. But Sotomayor, who didn’t join that section of Thomas’s dissent, can’t have been actuated by this motive. So why did the court’s most liberal member join its most conservative?
What Thomas and Sotomayor share in common -- along with being the court’s two members of racial minorities -- is a long-term concern with the overreach of federal criminal law. Thomas’s worry has to do with federalism and the encroachment of the federal government into state law matters. Sotomayor’s concern is more with the status of the individual defendant, who may be subject to long federal sentences.
Yet it’s noteworthy that both right and left saw the court’s decision as potentially troubling. Neither Thomas nor Sotomayor is an apologist for domestic violence. But both saw the court as extending the reach of federal criminal law unnecessarily under the shadow of concern about the dangers of domestic violence. In their own way, each tries to be a conscience on a court that often acts pragmatically. This time, the two consciences converged.
Prior related post:
- By vote of 6-2, SCOTUS upholds broad application of federal prohibition on firearm possession by certain misdemeanants
June 29, 2016
Sixth Circuit affirms way-below guideline five-year child porn sentence based in part on jury poll urging sentence even lower
A number of helpful readers made sure that, despite being on the road all day, I did not miss the remarkable Sixth Circuit panel decision today in US v. Collins, No. 15-3236 (6th Cir. June 29, 2016) (available here). I first blogged about this case here after initial sentencing, recounting these basic details via a news account:
A jury convicted Ryan Collins in October of one count possessing, distributing and receiving child pornography and one count possession of child pornography. Police found more than 1,500 files on his computer, and he was charged with distributing because he used peer-to-peer file sharing programs.
Under federal law, a judge can sentence a defendant to up to 20 years in prison if he or she is found guilty of child porn distribution. On Tuesday, during Collins' sentencing, Assistant U.S. Attorney Michael Sullivan asked U.S. District Judge James Gwin to give the maximum sentence for the charge.
Meanwhile, the U.S. Department of Probation and Pretrial Services said a guideline sentence for Collins, who is 32 and has no criminal history, would be between about 21 and 27 years in federal prison. While higher than the maximum sentence, the office's calculation accounted for several factors in Collins' case -- including the age of the victims and not taking responsibility for his actions.
But Gwin handed down a five-year sentence to Collins, the minimum allowable sentence for a distribution charge. The judge said that after Collins' trial, he polled jurors on what they thought was an appropriate sentence. The average recommendation was 14 months, Gwin said.
Unhappy with this outcome, federal prosecutors appealed the sentence as unreasonable, but now has lost before a unanimous Sixth Circuit panel. The Court's relatively short opinion includes these passages:
The government also argues that the jury poll was an “impermissible factor” for the district judge to consider in crafting an appropriate sentence. Conatser, 514 F.3d at 520. We again disagree. Federal law provides nearly unfettered scope as to the sources from which a district judge may draw in determining a sentence....
District courts also have the authority to “reject the Guidelines sentencing ranges based on articulated policy disagreements in a range of contexts.” United States v. Kamper, 748 F.3d 728, 741 (6th Cir. 2014). Indeed, we have suggested the plausibility of rejecting guidelines ranges in child pornography cases based on policy disagreements. See United States v. Bistline (Bistline I), 665 F.3d 758, 762-64 (6th Cir. 2012) (finding that the district court “did not seriously attempt to refute” the judgments underlying the guidelines).
When establishing the Sentencing Commission, Congress directed it to take “the community view of the gravity of the offense” into account when crafting appropriate criminal sanctions. 28 U.S.C. § 994(c)(4). As reflected in his writing on the subject, and briefly in the sentencing hearing below, the district judge reasons that the Commission fell short of this directive. See Judge James S. Gwin, Juror Sentiment on Just Punishment: Do the Federal Sentencing Guidelines Reflect Community Values?, 4 HARV. L. & POL'Y REV. 173, 185 (Winter 2010)....
Though we reiterate that juries lack “the tools necessary for the sentencing decision,” Martin, 390 F. App’x at 538, they can provide insight into the community’s view of the gravity of an offense. See Gwin, supra at 193-94; see also Ring v. Arizona, 536 U.S. 584, 615-16 (2002) (BREYER, J., concurring) (jurors “reflect more accurately the composition and experiences of the community as a whole” and are “better able to determine in the particular case the need for retribution”) (internal quotations and citations omitted). The jury did not determine or impose defendant’s sentence. Rather, the district judge – who does possess the necessary tools for the sentencing decision – was at all times interposed between the jurors’ views of an appropriate sentence and the sentencing guidelines’ § 3553(a) factors. Considering the jury’s sentencing recommendation as part of the sentencing calculus did not conflict with the district judge’s duty or ability to properly weigh the § 3553(a) factors and independently craft an appropriate sentence.
June 29, 2016 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (4)
Should more lenient treatment of alleged repeat Indiana University rapist garner even more national attention than Stanford swimmer sentencing?
The question in the title of this post is prompted by this remarkable new local story out of Indiana, headlined "Monroe County prosecutor frustrated in ex-IU student's plea deal in rape cases." Here are the basic troubling details:
The Monroe County Prosecutor’s Office admitted it was frustrated after a former IU student charged in two rape cases ended up spending one day in jail. John Enochs will serve one year of probation after pleading guilty to battery with moderate bodily injury as part of a plea agreement. Two rape charges against him were dismissed.
The most recent incident happened in April 2015. According to court documents, a woman told police she’d been raped at the Delta Tau Delta fraternity house but didn’t know her alleged attacker. She said she repeatedly told him to stop, but he held her down. Eventually she was able to leave the room and get away. Security video showed Enochs entering the room with the victim. She left 24 minutes later; health officials said she suffered a laceration to her genitals.
While that case was under investigation, police found a similar alleged rape from 2013. The woman involved in that case agreed to help investigators. DNA evidence and witness statements led them to Enochs.
In a statement Monday, the Monroe County Prosecutor’s Office said the case presented a “very unusual” set of circumstances; law prevented a jury in either case from learning about the other allegation if the cases went to trial.
Prosecutors also said there were “evidentiary” problems with both cases. In the oldest allegation, the one from 2013, witnesses couldn’t recall some important details because so much time had passed and they’d been drinking. Photographs also existed that contradicted “the assertion that the complaining witness was incapable of engaging in consensual activity shortly before the alleged assault.” In the more recent case, prosecutors said DNA evidence was problematic; prosecutors also said video before and after the alleged assault did “not support the assertion of a forcible rape.” They said that made it impossible for them to prove that Enochs caused the woman’s injury.
“This turn of events was frustrating for us as prosecutors, due to the fact that there were two complaints against the defendant. That fact is the reason we continued to pursue accountability on his part which led to this plea agreement,” Chief Deputy Prosecuting Attorney Robert Miller wrote in a statement. Miller said Enochs originally pleaded guilty to a felony; the battery charge was reduced to a misdemeanor at the court’s discretion....
Katharine Liell, who represented Encochs in the case, said Encochs was charged with crimes he didn’t commit. Liell pointed out that prosecutors dismissed both rape charges and blamed the lead investigators for presenting “false and misleading evidence” in the probable cause affidavit charging Encochs with rape. Liell called the charges “sensationalized and false,” adding that Enochs did indeed admit to a misdemeanor. Liell said he was “profoundly sorry for his lack of judgment.”
Because I can only infer various details about this case from this press report, I am deeply disinclined to "attack" the attorneys or the judge for their handling of this case. Still, it seems in this case we have allegations of repeat rapist essentially getting away with his crimes because he only ended up with a misdemeanor conviction and thus not only will not serve any prison time, but will not have to be on a sex offender registry or suffer any other lifetime collateral consequences that go with a serious felony conviction.
I fully understand why a "perfect storm" of factors turned the Brock Turner case into the national sentencing scandal of 2016. But, relatively speaking, the ultimate (in)justice that seems to have taken place in this case out of Indiana seems to be even more scandalous and likely ought to be of even bigger concern for those deeply troubled by the problems of sexual assaults on college campuses.
US Sentencing Commission publishes "Overview of Federal Criminal Cases – Fiscal Year 2015"
On Monday, the US Sentencing Commission released this new data report, excitingly titled "Overview of Federal Criminal Cases – Fiscal Year 2015." This USSC webpage provides this summary of the report's contents and findings:
The United States Sentencing Commission received information on 71,184 federal criminal cases in which the offender was sentenced in fiscal year 2015. Among these cases, 71,003 involved an individual offender and 181 involved a corporation or other “organizational” offender. The Commission also received information on 24,743 cases in which the court resentenced the offender or modified the sentence that had been previously imposed. This publication provides an overview of those cases [and includes these key findings]:
The 71,003 individual original cases reported to the Commission in fiscal year 2015 represent a decrease of 4,833 (6.4%) cases from fiscal year 2014.
Drug cases continued to be the most common type of federal case. The 22,631 drug cases reported to the Commission in fiscal year 2015 accounted for 31.8 percent of all cases report to the Commission.
Immigration cases were the next most common, accounting for 29.3 percent of the total federal caseload. In fiscal year 2011, immigration cases were the most common federal crime; however, since that year the number of these cases has steadily declined.
In fiscal year 2015, an imprisonment sentence was imposed on 87.3 percent of all offenders. Another 7.2 percent of offenders received a sentence of probation (i.e., where no type of confinement was imposed), a rate that has decreased over time from a high of 15.3 percent in 1990.
Almost three-quarters of offenders sentenced in fiscal year 2015 received a sentence of less than five years.
Methamphetamine offenses were the most common drug trafficking offenses and were the most severely punished drug crime in fiscal year 2015.
The proportion of drug offenders convicted of an offense carrying a mandatory minimum penalty was the lowest it has been since 1993.
June 29, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offense Characteristics | Permalink | Comments (0)
June 28, 2016
Final SCOTUS order list has nine Mathis GVRs ... and I suspect hundreds more cases will be impacted
The Supreme Court this morning finished up its work before heading out on summer vacation by issuing this order list. Though the Justices granted review in eight new cases, none appear to involve criminal justice issues. But the order list still had a bit of sentencing intrigue by including nine GVRs based on its Mathis ACCA ruling from last week (basics here).
Though it is never surprising to see a spate of GVRs in the wake of any significant ruling about a federal sentencing statute, I suspect that the fall-out from Mathis will extended to many more cases because, as reported via Justice Alito's dissent, it seems the ruling means that "in many States, no burglary conviction will count" as a possible ACCA predicate offense. That reality not only can impact many past, present and future ACCA cases, but also could also echo through the application of burglary (and even other crimes) in past career offender guideline cases.
Ultimately, I would be very surprised in the impact and import of Mathis end up nearly as grand or as complicated as last Term's Johnson ruling. But the consequential sentencing math of Mathis still may be major.
June 28, 2016 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)
Overview of state-level sentencing and criminal justice reform developments
The Pew Charitable Trusts has this new Stateline report headlined "Prisons, Policing at Forefront of State Criminal Justice Action." Here are excertps:
Faced with overcrowded prisons and evidence that lengthy sentences don’t deter crime, more states opted this year to revamp sentencing laws and send some people convicted of lesser, nonviolent crimes to local jails, if they’re locked up at all.
In an about-face after a half-century of criminal justice policies that favored long-term incarceration, Alaska, Kansas and Maryland this year joined at least 25 other states in reducing sentences or keeping some offenders out of prison.
The move to end lengthy prison stays for low-level offenders is one of several steps states took this year in reevaluating criminal justice policies during legislative sessions that have wrapped up in all but a few places. Other measures would help offenders transition back into their communities after release and hold police more accountable.
For years, many lawmakers were wary of appearing soft on crime. But states have recently retooled their criminal justice policies in response to tight post-recession budgets, shifting public opinion and court rulings demanding they ease prison overcrowding....
Alaska, Maryland and Kansas passed bills this year that divert all shoplifting and first-time DUI offenders away from prison, eliminate mandatory minimum sentences for low-level drug offenders, expand parole eligibility, and establish diversion programs for youth offenders, respectively.... And in Tennessee, lawmakers changed standards for property theft charges to help reduce the prison population, and established alternatives to re-incarceration for offenders who violate conditions of their parole or probation.
Many of the proposals enacted this year strike a complicated balance between boosting support for ex-offenders and ensuring that those convicted of crimes are held accountable. Relaxing sentencing and increasing the amount of good-time credits prisoners can earn toward an early release means hardened criminals might get out of prison sooner than they should, said Maryland Del. John Cluster, a retired police officer.
But he said his state could have gone farther to help offenders with job training and other re-entry assistance once they serve their time. “You clean an addict up and you let him out,” Cluster, a Republican, said. “[If] he doesn’t have a job, in less than a year he’s going to be back on the drugs.”
Many lawmakers are eager to reduce the expenses that come with running prisons. For example, prison systems cost taxpayers 14 percent more than state budgets indicate because they do not factor in expenses like benefits for correctional employees and hospital care for inmates. Prisons also strain local social services, child welfare and education programs.
But still, some elected officials want to build more. In Alabama, Republican Gov. Robert Bentley proposed spending $80 million to consolidate some of the state’s existing prisons and build four new ones. The state has one of the most overcrowded prison systems in the country, operating at 180 percent of capacity.
"The Criminal Justice Black Box"
The title of this post is the title of this notable new paper authored by Samuel Wiseman and now available via SSRN. Here is the abstract:
“Big data” — the collection and statistical analysis of numerous digital data points — has transformed the commercial and policy realms, changing firms’ understanding of consumer behavior and improving problems ranging from traffic congestion to drug interactions. In the criminal justice field, police now use data from widely-dispersed monitoring equipment, crime databases, and statistical analysis to predict where and when crimes will occur, and police body cameras have the potential to both provide key evidence and reduce misconduct.
But in many jurisdictions, digital access to basic criminal court records remains surprisingly limited, and, in contrast to the civil context, no lucrative market for the data (apart from that for background checks) exists to induce the private sector to step in to fill the gap. As a result, bulk criminal justice data is largely limited to survey data collected by the Bureau of Justice Statistics. Unlocking the “black box” by uniformly collecting and reporting basic, anonymized data from criminal cases — including, e.g., the charges, pretrial release decision, appointment of counsel, and case disposition — would have significant benefits. It would allow researchers, reformers, and government actors to both more effectively study the system as a whole and to more easily identify jurisdictions violating the Constitution by, for example, routinely denying counsel or pretrial release and imprisoning defendants for inability (rather than unwillingness) to pay a fine or fee.
This Article documents this problem, explores its causes, and proposes a solution, arguing that the federal government should form a framework for the uniform collection of anonymized local, state, and federal criminal justice data. While participation in this uniform system is likely to be incremental, even partial data would improve our understanding of the system as a whole and aid efforts to enforce well established, but frequently violated, constitutional rights.
June 27, 2016
Eager to hear various perspectives on the SCOTUS sentencing Term that was
In this post last September, I previewed the SCOTUS Term that just wrapped up this morning by asking "Are we about to start the #Best Ever SCOTUS Term for Eighth Amendment?". (I thereafter followed up with a grand total of one post promoting the silly hashtag, #BESTEA = Best Ever SCOTUS Term for Eighth Amendment for this Supreme Court Term.)
Looking back now, I do not think this past SCOTUS Term proved to be truly monumental for the Eighth Amendment, although I do think the Montgomery ruling is a (so-far under-examined) big deal. Ironically, the surprising and sudden death of Justice Antonin Scalia may have been the biggest Eighth Amendment development: Justice Scalia had long been among the most vocal and frequent critics of the Court's modern "evolving standards" Eighth Amendment jurisprudence, and his eventual replacement, no matter who that ends up being, seems unlikely to be as hostile to this jurisprudence. Indeed, the next new Justice will be joining a Court that seems to already have at least five, and maybe even six, Justices open to continuing to interpret the Eighth Amendment as a serious limit on serious punishment other than just the death penalty. (I am counting the Chief Justice as the sixth, based in part on his surprising vote with the Kennedy majority opinion in the Montgomery case.)
Of course, there were a number of notable constitutional cases/developments outside of the Eighth Amendment context this past Term involving important sentencing issues. For death penalty followers, the Sixth Amendment ruling in Hurst was and will remain a very big deal for the forseeable future (especially in Alabama, Delaware and Florida). And the shock-waves of the Johnson Fifth Amendment ruling from the end of last SCOTUS Term has and will continue to rumble through the Welch retroactivity ruling and today's grant in the Beckle case to address the application of Johnson to the career offender provision of the federal sentencing guidelines.
In the coming days and weeks, I will likely to some writing about the SCOTUS sentencing Term that was along with some predictions about what the future might hold for SCOTUS sentencing jurisprudence. In the meantime, though, I would be eager to hear from readers (in the comments or via email) concerning what sentencing case(s)/opinion(s) they think were most important or significant or telling or consequential. And anyone who can provide perspectives on the SCOTUS sentencing Term that was wth a Tom Lehrer flair will be sure to get extra praise and promotion in this space.
Some recent highlights from Marijuana Law, Policy & Reform
Especially because there is likely to be a lot more marijuana reform news to cover (both in Congress and in the states) in the coming months than statutory sentencing reform news, I am likely this summer to make a habit of weekly reviews of recent postings from my Marijuana Law, Policy & Reform blog. These recent posts highlight these realities:
Per the Chief, SCOTUS unanimously vacates former Gov's conviction while adopting "more bounded interpretation" of corruption statute
Wrapping up yet another remarkable Term with a notable bit of unanimity, the Supreme Court's final opinion for this SCOTUS season was a win for a high-profile federal defendant McDonnell v. United States, No. 15-474 (S. Ct. June 27, 2016) (available here). Chief Justice Roberts authored the opinion for the unanimous Court, and here are some key excerpts from the start and center of the ruling:
In 2014, the Federal Government indicted former Virginia Governor Robert McDonnell and his wife, Maureen McDonnell, on bribery charges. The charges related to the acceptance by the McDonnells of $175,000 in loans, gifts, and other benefits from Virginia businessman Jonnie Williams, while Governor McDonnell was in office. Williams was the chief executive officer of Star Scientific, a Virginia-based company that had developed a nutritional supplement made from anatabine, a compound found in tobacco. Star Scientific hoped that Virginia’s public universities would perform research studies on anatabine, and Williams wanted Governor McDonnell’s assistance in obtaining those studies.
To convict the McDonnells of bribery, the Government was required to show that Governor McDonnell committed (or agreed to commit) an “official act” in exchange for the loans and gifts. The parties did not agree, however, on what counts as an “official act.” The Government alleged in the indictment, and maintains on appeal, that Governor McDonnell committed at least five “official acts.” Those acts included “arranging meetings” for Williams with other Virginia officials to discuss Star Scientific’s product, “hosting” events for Star Scientific at the Governor’s Mansion, and “contacting other government officials” concerning studies of anatabine. Supp. App. 47–48. The Government also argued more broadly that these activities constituted “official action” because they related to Virginia business development, a priority of Governor McDonnell’s administration. Governor McDonnell contends that merely setting up a meeting, hosting an event, or contacting an official — without more — does not count as an “official act.”
At trial, the District Court instructed the jury according to the Government’s broad understanding of what constitutes an “official act,” and the jury convicted both Governor and Mrs. McDonnell on the bribery charges. The Fourth Circuit affirmed Governor McDonnell’s conviction, and we granted review to clarify the meaning of “official act.”...
Taking into account the text of the statute, the precedent of this Court, and the constitutional concerns raised by Governor McDonnell, we reject the Government’s reading of §201(a)(3) and adopt a more bounded interpretation of “official act.” Under that interpretation, setting up a meeting, calling another public official, or hosting an event does not, standing alone, qualify as an “official act.”...
It is apparent from Sun-Diamond that hosting an event, meeting with other officials, or speaking with interested parties is not, standing alone, a “decision or action” within the meaning of §201(a)(3), even if the event, meeting, or speech is related to a pending question or matter. Instead, something more is required: §201(a)(3) specifies that the public official must make a decision or take an action on that question or matter, or agree to do so....
In sum, an “official act” is a decision or action on a “question, matter, cause, suit, proceeding or controversy.” The “question, matter, cause, suit, proceeding or controversy” must involve a formal exercise of governmental power that is similar in nature to a lawsuit before a court, a determination before an agency, or a hearing before a committee. It must also be something specific and focused that is “pending” or “may by law be brought” before a public official. To qualify as an “official act,” the public official must make a decision or take an action on that “question, matter, cause, suit, proceeding or controversy,” or agree to do so. That decision or action may include using his official position to exert pressure on another official to perform an “official act,” or to advise another official, knowing or intending that such advice will form the basis for an “official act” by another official. Setting up a meeting, talking to another official, or organizing an event (or agreeing to do so) — without more — does not fit that definition of “official act.”
By vote of 6-2, SCOTUS upholds broad application of federal prohibition on firearm possession by certain misdemeanants
Confirming that the Second Amendment has far more bark than bite when push comes to shove (puns intended), the Supreme Court this morning rejected a narrow interpretation of the federal criminal statute that forever prohibits any firearm possession by any persons who are convicted of certain misdemeanors. The opinion for the Court authored by Justice Kagan in Voisine v. US, 14-10154 (S. Ct. June 27, 2016) (available here), gets started this way:
Federal law prohibits any person convicted of a “misdemeanor crime of domestic violence” from possessing a firearm. 18 U.S.C. §922(g)(9). That phrase is defined to include any misdemeanor committed against a domestic relation that necessarily involves the “use . . . of physical force.” §921(a)(33)(A). The question presented here is whether misdemeanor assault convictions for reckless (as contrasted to knowing or intentional) conduct trigger the statutory firearms ban. We hold that they do.
Justice Thomas authored a dissent in Voisine, which was partially joined by Justice Sotomayor. His dissent is nearly twice as long as the opinion for the Court, and it starts and ends this way:
Federal law makes it a crime for anyone previously convicted of a “misdemeanor crime of domestic violence” to possess a firearm “in or affecting commerce.” 18 U.S.C. §922(g)(9). A “misdemeanor crime of domestic violence” includes “an offense that . . . has, as an element, the use or attempted use of physical force . . . committed by [certain close family members] of the victim.” §921(a)(33)(A)(ii). In this case, petitioners were convicted under §922(g)(9) because they possessed firearms and had prior convictions for assault under Maine’s statute prohibiting “intentionally, knowingly or recklessly caus[ing] bodily injury or offensive physical contact to another person.” Me. Rev. Stat. Ann., Tit. 17–A, §207(1)(A) (2006). The question presented is whether a prior conviction under §207 has, as an element, the “use of physical force,” such that the conviction can strip someone of his right to possess a firearm. In my view, §207 does not qualify as such an offense, and the majority errs in holding otherwise. I respectfully dissent....
At oral argument the Government could not identify any other fundamental constitutional right that a person could lose forever by a single conviction for an infraction punishable only by a fine. Tr. of Oral Arg. 36–40. Compare the First Amendment. Plenty of States still criminalize libel.... I have little doubt that the majority would strike down an absolute ban on publishing by a person previously convicted of misdemeanor libel. In construing the statute before us expansively so that causing a single minor reckless injury or offensive touching can lead someone to lose his right to bear arms forever, the Court continues to “relegat[e] the Second Amendment to a second-class right.” Friedman v. Highland Park, 577 U. S. ___, ___ (2015) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 6).
In enacting §922(g)(9), Congress was not worried about a husband dropping a plate on his wife’s foot or a parent injuring her child by texting while driving. Congress was worried that family members were abusing other family members through acts of violence and keeping their guns by pleading down to misdemeanors. Prohibiting those convicted of intentional and knowing batteries from possessing guns — but not those convicted of reckless batteries — amply carries out Congress’ objective.
Instead, under the majority’s approach, a parent who has a car accident because he sent a text message while driving can lose his right to bear arms forever if his wife or child suffers the slightest injury from the crash. This is obviously not the correct reading of §922(g)(9). The “use of physical force” does not include crimes involving purely reckless conduct. Because Maine’s statute punishes such conduct, it sweeps more broadly than the “use of physical force.” I respectfully dissent.
SCOTUS grants cert on Johnson application to career offender guidelines
As noted in this prior post, SCOTUS has been relisting throughout June two notable petitions on Johnson's applicability to the career offender guidelines. Excitingly for sentencing fans, today's final Supreme Court order list includes a grant or certiorari in Beckles v. United States, No. 15-8544, which SCOTUSblog has described this way:
Issue: (1) Whether Johnson v. United States applies retroactively to collateral cases challenging federal sentences enhanced under the residual clause in United States Sentencing Guidelines (U.S.S.G.) § 4B1.2(a)(2) (defining “crime of violence”); (2) whetherJohnson's constitutional holding applies to the residual clause in U.S.S.G. § 4B1.2(a)(2), thereby rendering challenges to sentences enhanced under it cognizable on collateral review; and (3) whether mere possession of a sawed-off shotgun, an offense listed as a “crime of violence” only in commentary to U.S.S.G. § 4B1.2, remains a “crime of violence” after Johnson.
IN other words, Beckle buckle-up your seat-belts, sentencing fans, as the post-Johnson criminal history bumpy ride is now sure to continue in the Supreme Court for at least the next Term and likely beyond.
Notably and significantly, the SCOTUS order list reports that "Justice Kagan took no part in the consideration or decision of ... this petition." In other words, it seems that Justice Kagan's prior history as Solicitor General has caused her to be conflicted out of this case. Ergo, it will likely be only be a seven (or perhaps and eight-member) Court that will be resolving the application of vagueness doctrines in this case.
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)?
- 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
- Helpful review of Johnson's impact a year latter, just before ACCA prisoners need to file Johnson collateral appeals
Updates on considerable success of "guerilla war" over executions and access to lethal injection drugs
In the Glossip litigation, Justice Alito famously complained that capital lawyers contesting execution protocols were part of a broader "guerilla war against the death penalty which consists of efforts to make it impossible for the states to obtain drugs that could be used to carry out capital punishment." Against that backdrop, two recent articles about execution drugs provide an interesting snapshot of the remarkable success that opponents of the death penalty have achieved in this so-called "guerilla war":
From BuzzFeed News here, "There's A Standoff Between States And The Feds Over Illegal Execution Drugs; It's been nearly a year since the federal government seized thousands of vials of lethal injection drugs on their way to death penalty states; The states want their drugs, and neither side is showing signs of backing down"
From the Christian Science Monitor here, "Arizona runs out of lethal injection drugs: Is this how the death penalty dies?: Arizona drugs shortfall is part of an increasingly poignant national debate that has put the ethics of the death penalty at odds with its practicality."
June 26, 2016
Mother Jones devotes issue to reporter's four months working as a private prison guard
Going from being just a must-read to perhaps a must-buy, Mother Jones has devoted much of its July/August 2016 issue to the writings of reporter Shane Bauer providing his first-hand account of his four months working as a guard at a private prison in Louisiana.
This Editor's Note sets the tone and provides the context for this work under the full headline "Why We Sent a Reporter to Work as a Private Prison Guard: Legal intimidation has made investigations like this rare. It’s time for journalists to reclaim our roots." Here are excerpts from this Editor's Note:
In 1887, a 23-year-old journalist got herself checked into the Women's Lunatic Asylum on Blackwell's Island in New York City. When she emerged, she wrote about patients tied together with ropes, abusive staff and ubiquitous vermin, "lunatics" treated with nothing more restorative than ice baths, and, perhaps most disturbingly, patients who seemed to be perfectly sane, dumped there by a society that had few safety nets for women who were single, poor, and often immigrants....
Here are the chapter headings and links to this remarkable piece of reporting about private prisons:Bly's work holds up not only for its daring, but for its impact: It prompted a grand jury investigation that led to changes she'd proposed, including a $26 million (in today's dollars) increase to the budget of the city's Department of Public Charities and Correction and regulations to ensure that only the seriously mentally ill were committed....Bly — who'd go on to get herself arrested so she could investigate conditions at a women's prison, and to best Jules Verne's fictional protagonist by circumnavigating the world in 72 days—was not the first journalist to go inside an institution to expose its inner workings. Or the last.... But while such investigations were commonplace in the muckraker era, they've grown increasingly rare. Why? First, there's a real concern over ethics. When is it okay for reporters to not announce themselves as such? There's no governing body of journalism, but a checklist written by Poynter ethicist Bob Steele provides guidelines for assessing when this kind of reporting is acceptable. I'll paraphrase:
- When the information obtained is of vital public interest.
- When other efforts to gain that information have been exhausted.
- When the journalist is willing to disclose the reason and nature of any deception.
- When the news organization applies the skill, time, and funding needed to fully pursue the story.
- When the harm prevented outweighs any harm caused.
- After meaningful deliberation of the ethical and legal issues.
To see what private prisons are really like, Shane Bauer applied for a job with the Corrections Corporation of America. He used his own name and Social Security number, and he noted his employment with the Foundation for National Progress, the publisher of Mother Jones. He did not lie. He spent four months as a guard at a CCA-run Louisiana prison, and then we spent 14 more months reporting and fact-checking.We took these extraordinary steps because press access to prisons and jails has been vastly curtailed in recent decades, even as inmates have seen their ability to sue prisons — often the only way potential abuses would pop up on the radar of news organizations or advocates — dramatically reduced. There is no other way to know what truly happens inside but to go there.But here's the other reason investigations like this one have grown so rare: litigation.... Nondisclosure agreements — once mainly the provenance of people who work on Apple product launches and Beyoncé videos — are now seeping into jobs of all stripes, where they commingle with various other "non-disparagement" clauses and "employer protection statutes." Somewhere along the way, employers' legitimate interest in protecting hard-won trade secrets has turned into an all-purpose tool for shutting down public scrutiny—even when the organizations involved are more powerful than agencies of government.Or when, for that matter, they replace the government. When CCA (which runs 61 prisons, jails, and detention centers on behalf of US taxpayers) learned about our investigation, it sent us a four-page letter warning that Shane had "knowingly and deliberately breached his duty to CCA by violating its policies," and that there could be all manner of legal consequences....
Shane's story will draw a fair bit of curiosity around the newsgathering methods employed. But don't let anyone distract you from the story itself. Because the story itself is revealing as hell.
CHAPTER 1: "Inmates Run This Bitch"
CHAPTER 2: Prison Experiments
CHAPTER 3: The CCA Way
CHAPTER 4: "You Got to Survive"
CHAPTER 5: Lockdown