January 23, 2016
New Jersey appeals court upholds parole board's monitoring of sex offenders using lie detector machines
As reported in this local article from New Jersey, a local "appeals court on Thursday upheld the state Parole Board's use of polygraph tests to monitor sex offenders after their release from prison." Here is more about the extended ruling:
The panel of state judges largely rejected the argument of five sex offenders sentenced to lifetime supervision that the tests amounted to coerced interrogations that violated their constitutional rights. The court found, however, that the board must take steps to protect the offenders' right against self-incrimination and that the test results alone could not be used to justify punishment.
Under state law, all sex offenders sentenced to lifetime monitoring can be subjected to the examinations, popularly referred to as "lie detector" tests. The tests are used to help parole officers determine whether the offenders are adhering to treatment plans and the terms of their parole. But critics point out that the tests can be unreliable, and their results aren't allowed to be used as evidence in most criminal cases.
Currently, there are 7,469 offenders being monitored by the state that could be subject to polygraph tests. Samuel J. Plumeri, Jr., the vice chairman of the New Jersey State Parole Board, said in an e-mail the use of the tests was "dependent upon an assessment" of each offender's case....
A 2009 Parole Board report on the use of polygraph tests described them as "an essential tool" for monitoring sex offenders. The technology, the report found, "appears to encourage honesty with parole officers and treatment providers" and prevent convicts from re-offending.
But Michael C. Woyce, an attorney for the five sex offenders — whom the court identified only by their initials — argued the tests were unconstitutional because the subjects weren't permitted to have an attorney present, weren't read their Miranda rights and could face sanctions by refusing to answer "intrusive" questions. The Public Defender's Office, which also argued in the case, also called the tests both "unfair" and "extremely unreliable."
Woyce said the technology has largely fallen out of favor in criminal courts, but persists in the monitoring of sex offenders because of the stigma attached to their crimes. "Being labeled a sex offender is a scarlet letter," Woyce said. "Because of that, the courts often — not always, but often — treat them differently." Woyce said offenders who do not cooperate or perform poorly on the tests can have their access to the internet revoked, be prohibited from traveling out of state, or be subject to GPS monitoring without due process.
The court rejected the sex offenders' argument that they were entitled to have an attorney present during the tests under the Sixth Amendment, finding they were not the same as a criminal interrogation. "The subject can face later consequences if he chooses to leave before the examination is completed but, unlike an arrestee at a police station, he is not subject to immediate confinement if he refuses to cooperate," the judges wrote.
But recognizing that New Jersey courts consider polygraph test results "unreliable proof," the 72-page ruling prohibits parole officers from using them "as evidence to justify a curtailment of an offender's activities." If in the course of a polygraph an offender admits any wrongdoing, that could be used against them, however, and the court ordered the board to adopt "regulations and practices to protect the offenders' privileges against self-incrimination."
The full ruling in JB v. New Jersey State Parole Board, No. A-5435-10T2 (NJ App. Jan. 21, 2016), is available at this link.
January 22, 2016
"Incarceration Incentives in the Decarceration Era"
The title of this post is the title of this notable new paper by Avlana Eisenberg now available via SSRN. Here is the abstract:
After forty years of skyrocketing incarceration rates, there are signs that a new “decarceration era” may be dawning; the prison population has leveled off and even slightly declined. Yet, while each branch of government has taken steps to reduce the prison population, the preceding decades of mass incarceration have empowered interest groups that contributed to the expansion of the prison industry and are now invested in its continued growth. These groups, which include public correctional officers and private prison management, resist decarceration-era policies, and they remain a substantial obstacle to reform.
This Article scrutinizes the incentives of these industry stakeholders in the new decarceration era. Drawing on interviews with a wide range of industry actors, it develops a “taxonomy of resistance” to identify how and why these actors resist reform efforts and uncovers understudied parallels between private and public prison stakeholders. This fine-grained analysis grounds the Article’s recommendations for changes to compensation and assessment structures to better align industry incentives with decarceration-era goals. Ultimately, the future of the decarceration era is precarious but not doomed. The detailed incentives unearthed by this study demonstrate the significant hurdles facing emerging decarceration policies and the urgent challenge of accounting for, overcoming, and co-opting entrenched prison industry stakeholders.
Over dissent of Justice Breyer, Alabama goes forward with its first execution in years
As reported in this lengthy local article, headlined "Alabama executes Christopher Eugene Brooks for 1992 murder of Jo Deann Campbell," Alabama got its capital punishment tide rolling again last night. Here are some of the details:
Alabama death row inmate Christopher Eugene Brooks was executed Thursday night for the 1992 slaying of a Homewood woman after the U.S. Supreme Court denied his request for a stay of execution.
Brooks was pronounced dead at 6:38 p.m. in the execution chamber at the Holman Correctional Facility in Atmore. He was the 57th death row inmate executed in Alabama since executions resumed in 1983 after an unofficial more than decade-long nationwide moratorium ended. He was the first person executed in Alabama since 2013....
After the execution Alabama Prison Commissioner Jeff Dunn said the execution with the controversial sedative drug midazolam "went exactly as planned." Brooks did not appear to struggle during the administration of the drugs. His attorneys and other inmates had claimed the first drug in the cocktail does not put the condemned inmate in deep enough sleep to prevent pain when the other two drugs are administered. Dunn said that there are no other executions currently planned, but the prison system does have the drugs available to conduct more. He said the same drug combination has been used in other states.
Dunn also read letters from victim Jo Deann Campbell's two sisters and mother, all of whom witnessed the execution. Mona Campbell, her mother, said the execution does not give her closure and will not bring back her youngest daughter. She said she hoped Brooks had "made peace with God." Jo Deann's sister, Fran Romano and Corinne Campbell also issued statements. "Just as God forgives me for my sins I pray for mercy for this man's soul," Corinne wrote....
Minutes before he was to die, word spread that the U.S. Supreme Court had denied Brook's request to stay the execution. Justice Stephen Breyer dissented from the ruling. Dunn said prison officials were notified of the justices' decision at 5:55 p.m., five minutes before the execution was scheduled to begin.... The request for the stay was made to Justice Clarence Thomas. Justices Sonia Sotomayor and Ruth Bader Ginsburg concurred with Thomas' decision to deny the stay.
Brooks, 43, was convicted in the December 1992 rape and murder of 23-year-old Jo Deann Campbell. Investigators linked Brooks to the crime through DNA, fingerprints, and Campbell's car and other items taken from her Homewood apartment, including a credit card he had used. Her partially clothed body had been found under her bed and she had been beaten with a barbell.
Brooks was one of 187 inmates on Alabama Death Row. Twenty-two have served longer than Brooks on death row. Alabama changed its drug combination for executions in 2014 after it and other states reported they could no longer find supplies of the drugs it had used in the past, mainly because manufacturers did not want their drugs used in executions.
The SCOTUS order denying a stay in this case is available at this link, and here is the text of the concurrence and dissent:
JUSTICE SOTOMAYOR, with whom JUSTICE GINSBURG joins, concurring in the denial of certiorari.
This Court’s opinion upholding Alabama’s capital sentencing scheme was based on Hildwin v. Florida, 490 U. S. 638 (1989) (per curiam), and Spaziano v. Florida, 468 U. S. 447 (1984), two decisions we recently overruled in Hurst v. Florida, 577 U. S. ___ (2016). See Harris v. Alabama, 513 U. S. 504 (1995). I nonetheless vote to deny certiorari in this particular case because I believe procedural obstacles would have prevented us from granting relief.
JUSTICE BREYER, dissenting from denial of application for stay of execution and petition for certiorari.
Christopher Eugene Brooks was sentenced to death in accordance with Alabama’s procedures, which allow a jury to render an “advisory verdict” that “is not binding on the court.” Ala. Code §13A–5–47(e) (2006). For the reasons explained in my opinions concurring in the judgment in Hurst v. Florida, ante, at 1, and Ring v. Arizona, 536 U. S. 584, 613–619 (2002), and my dissenting opinion in Schriro v. Summerlin, 542 U. S. 348, 358–366 (2004), I dissent from the order of the Court to deny the application for stay of execution and the petition for a writ of certiorari. Moreover, we have recognized that Alabama’s sentencing scheme is “much like” and “based on Florida’s sentencing scheme.” Harris v. Alabama, 513 U. S. 504, 508 (1995). Florida’s scheme is unconstitutional. See Hurst, ante, at 1 (BREYER, J., concurring in judgment). The unfairness inherent in treating this case differently from others which used similarly unconstitutional procedures only underscores the need to reconsider the validity of capital punishment under the Eighth Amendment. See Glossip v. Gross, 576 U. S. ___, ___ (2015) (BREYER, J., dissenting) (slip op., at 1–2). I respectfully dissent.
Will FBI child porn operations generate same controversy as Fast and Furious?
The question in the title of this post is prompted by this new USA Today report headlined "FBI ran website sharing thousands of child porn images." Here are the basics from the article:
For nearly two weeks last year, the FBI operated what it described as one of the Internet’s largest child pornography websites, allowing users to download thousands of illicit images and videos from a government site in the Washington suburbs.
The operation — whose details remain largely secret — was at least the third time in recent years that FBI agents took control of a child pornography site but left it online in an attempt to catch users who officials said would otherwise remain hidden behind an encrypted and anonymous computer network. In each case, the FBI infected the sites with software that punctured that security, allowing agents to identify hundreds of users.
The Justice Department acknowledged in court filings that the FBI operated the site, known as Playpen, from Feb. 20 to March 4, 2015. At the time, the site had more than 215,000 registered users and included links to more than 23,000 sexually explicit images and videos of children, including more than 9,000 files that users could download directly from the FBI. Some of the images described in court filings involved children barely old enough for kindergarten.
That approach is a significant departure from the government’s past tactics for battling online child porn, in which agents were instructed that they should not allow images of children being sexually assaulted to become public. The Justice Department has said that children depicted in such images are harmed each time they are viewed, and once those images leave the government’s control, agents have no way to prevent them from being copied and re-copied to other parts of the internet.
Officials acknowledged those risks, but said they had no other way to identify the people accessing the sites. “We had a window of opportunity to get into one of the darkest places on Earth, and not a lot of other options except to not do it,” said Ron Hosko, a former senior FBI official who was involved in planning one of the agency’s first efforts to take over a child porn site. “There was no other way we could identify as many players.”
Lawyers for child pornography victims expressed surprise that the FBI would agree to such tactics – in part because agents had rejected them in the past – but nonetheless said they approved. “These are places where people know exactly what they’re getting when they arrive,” said James Marsh, who represents some of the children depicted in some of the most widely-circulated images. “It’s not like they’re blasting it out to the world.”...
But they have also prompted a backlash of a different kind. In a court filing, a lawyer for one of the men arrested after the FBI sting charged that “what the government did in this case is comparable to flooding a neighborhood with heroin in the hope of snatching an assortment of low-level drug users.” The defense lawyer, Colin Fieman, asked a federal judge to throw out child pornography charges against his client, former middle school teacher Jay Michaud. A federal judge is scheduled to hear arguments on that request Friday.
Fieman said more than 100,000 Playpen registered users visited the site while it was under the FBI’s control. The Justice Department said in court filings that agents had found “true” computer addresses for more than 1,300 of them, and has told defense lawyers that 137 have been charged with a crime, though it has so far declined to publicly identify those cases.
“The government always considers seizing an illegal child pornography site and removing it from existence immediately and permanently,” Justice Department spokesman Peter Carr said. “While doing so would end the trafficking of child pornography taking place on that one website, it would do nothing to prevent those same users from disseminating child pornography through other means.” Still, he said, “The decision whether to simply shut down a website or to allow it to continue operating for a brief period for a law enforcement purpose is a difficult one.”
Justice officials said they were unable to discuss details of the investigation because much of it remains under seal, at their request. The Justice Department said in court filings that agents did not post any child pornography to the site themselves. But it did not dispute that the agents allowed images that were already on the site to remain there, and that it did not block the site’s users from uploading new ones while it was under the government’s control. And the FBI has not said it had any ability to prevent users from circulating the material they downloaded onto other sites.
“At some point, the government investigation becomes indistinguishable from the crime, and we should ask whether that’s OK,” said Elizabeth Joh, a University of California Davis law professor who has studied undercover investigations. “What’s crazy about it is who’s making the cost/benefit analysis on this? Who decides that this is the best method of identifying these people?”
January 21, 2016
"Why hasn’t President Obama granted clemency to a single Latina inmate?"
The question in the title of this post is the headline of this recent Fusion commentary authored by Jason Hernandez. Here are excerpts from his commentary:
Last month, President Obama announced a new series of pardons and commutations for federal prisoners, just like he has for the past three years, just before the First Family leaves for their Christmas vacation. Since he took office, Obama has commuted the sentences of 184 federal prisoners, many of whom were sentenced to life without parole for nonviolent drug crimes....
On December 19, 2013, I was one of the people he chose. At the time, I was serving a life sentence for a nonviolent drug crime. In total, I spent 17 years behind bars for a crime committed at age 21. I was the first Latino man to receive clemency from President Obama, and I will be eternally grateful that he gave me a second chance.
But I’m baffled that of the 184 individuals who have received his mercy in the last seven years, not one has been a Latina. Latinas make up about 17% of the U.S. population and 33% of the women’s federal prison population. They are three times more likely to go to prison than white women. And the number of Latinos sent to federal prison nearly quadrupled between 1991 and 2007. There’s no shortage of worthy Latina candidates for a presidential clemency.
Take, for example, Elisa Castillo, a 56-year-old grandmother who unknowingly smuggled cocaine on tour buses from Mexico to Houston. Because she had no information to negotiate a plea bargain with, she was indicted for conspiracy, went to trial, and received life without parole.
Then there’s Rita Becerra, who was arrested because of her involvement with her boyfriend’s drug dealing. Rita cooperated with the prosecution against her boyfriend, but because he cooperated too, he got just nine years and Rita 27 years — she has been in prison over 20 years. And Josephine Ledezma, who in 1992 was sentenced to life without parole for a nonviolent drug crime: she is now 57 and has been in prison 24 years.
President Obama has urged members of Congress to reform our broken criminal justice system and spoken eloquently about racial disparities in sentencing. One might want to blame him for failing to help incarcerated Latinas like these women, but the Latino community shoulders the blame as well. To my great disappointment, Latino groups like the National Council of La Raza or LULAC have not only remained silent about the president’s failure to commute the sentence of a single Latina, but also haven’t done enough to highlight the abuses of the War on Drugs more generally. This is a disgrace.
The War on Drugs should be called the War on Minorities. Harsh drug sentencing has deeply hurt the black and hispanic communities, especially our children. Studies show our drug policies have done more harm than good by breaking up families and decimating communities of color. Brown lives matter, too.
A much deeper (too deep?) dive into mens rea and its place in criminal justice reform
As regular readers should now know, debate over mens rea reforms for federal offenses has become the latest hot-button issue in the extended discussions inside the Beltway concerning statutory federal sentencing reform. On the terms of the statutory debate in Congress and with the White House, the federal mens rea debate is quite interesting and important. But this interesting new commentary by sociology professor William Kelly, titled "Rethinking Criminal Intent: Why 'Mens Rea' Matters," provides an even richer perspective on what deeper mens rea concerns might entail. I recommend the full piece, and here is a taste:
I believe the debate has so far sidestepped one of the more troubling impacts of mens rea on our justice system. I agree that there is a valid question about whether citizens can be aware of all federal crimes. But the problem associated with mens rea is much broader than just the question of whether someone is “knowingly” breaking the law. My concern is with the psychological, neurological, psychiatric, and intellectual ability or capacity of many offenders to form the required criminal intent.
Criminal intent or criminal responsibility requires awareness, conscious will, volition, and rational decision making. There is a routine presumption, which is rarely challenged, that criminal offenders have the ability to form intent. I challenge that presumption. Here is why.
Today, 40 percent of individuals in the U.S. criminal justice system (federal and state) have a diagnosable mental illness. Sixty percent of inmates in the nation’s prisons have experienced at least one traumatic brain injury. Nearly 80 percent of justice-involved individuals have a substance abuse problem. The prevalence in the justice system of individuals with intellectual disabilities is three to five times what it is in the general population. There are substantial numbers of individuals in the justice system with neurodevelopmental and neurocognitive deficits and impairments.
Moreover, there’s overwhelming evidence that many individuals with mental illness, addiction, neurodevelopmental deficiencies, and intellectual deficits lack the ability to form intent as it is defined in the law. How many lack this ability we don’t really know, because we rarely inquire about intent. But the statistics cited above should raise serious questions about how we go about the business of criminal justice in the U.S.
In the vast majority of state and federal criminal convictions, the government rarely is required to prove intent. That’s because the vast majority of criminal indictments (roughly 95 percent) are resolved through a plea agreement. If the offender agrees to the terms of the agreement, it’s essentially a done deal. That puts prosecutors in charge of sorting out who is criminally responsible and who is not. At the end of the day, the vast majority are held responsible.
Mens rea is supposed to serve as a gatekeeper at the front door of the justice system, separating innocent from criminal behavior. The reality is that criminal intent is just not much of an issue under current criminal procedure. That in turn has significantly contributed to our incarceration problem by facilitating the punishment of more and more individuals.
It has also contributed to our recidivism problem. When we punish mentally ill, addicted, intellectually disadvantaged and/or neurocognitively impaired individuals, we tend to return them to the free world in worse shape than when they came in. This is simply more grease for the revolving door.
"Pulling Leviathan's Teeth – The Political Economy of Death Penalty Abolition"
The title of this post is the title of this provocative new article available via SSRN authored by Jerg Gutmann. Here is the abstract:
It is not immediately apparent why a state would willingly abolish the death penalty and thereby lose a powerful political instrument. The fact that some states abolish capital punishment while others retain it has thus far been explained by systematic differences in the values of politicians or citizens. An explanation of different behavior based on different preferences for such behavior is, however, largely tautological and not of much use to social science.
This article proposes and empirically tests a political economy model in which rational politicians are more likely to abolish the death penalty when it is of no political use to them and if the process of abolition serves as a self-commitment in periods of transition. The results of estimating stratified Cox regression models show that the death penalty tends to be abolished particularly during periods of democratization and transitions to peace, but also that independence of the judiciary can encourage abolition. In contrast, military dictatorships are significantly more likely to retain capital punishment, as are countries with a common law legal system and those that are strongly politically influenced by Islam. These findings support the view that the abolition of capital punishment is at least partly motivated by rational political considerations.
January 20, 2016
"Free computers for inmates? It’s latest deal at Sacramento County jail"
The title of this post is the headline of this encouraging Sacramento Bee article which reinforces my long-standing belief that lots of modern technology could and should be put to good use in our not-so-modern jails and prisons. Here are excerpts from the piece:
On the surface, the notion seems preposterous: Hand out Samsung computer tablets to dozens of Sacramento County Main Jail inmates. But 40 of the tablets have been in use at the Main Jail downtown for two months, and officials say they have had virtually no problems. Inmates have used them to take classes toward high school diplomas, for parenting and domestic violence courses and, once they have earned enough points from studying, to watch preapproved movies or listen to music.
The project, which officials hope soon will offer 500 tablets to inmates, is similar to others that have been launched in jails nationwide and is not costing taxpayers a dime, sheriff’s Sgt. Brian Amos said. Instead, the tablets, which cost about $200 each, are paid for through an inmate fund that collects revenues from commissary and other purchases. “An inmate can work on their GED, they can take anger management classes,” Amos said as he stood on the fifth floor of the jail Thursday as inmates drifted toward a table holding dozens of tablets and earphones. “There’s even parenting classes. We had an inmate here during this pilot who was learning how to fix carburetors on a car or fix brakes. There’s thousands of hours of content.”
The computers cannot be used for email or be hooked up to wireless Internet, Amos said. Instead, they can only connect with a secure network operated by a Chicago-based company called Edovo that offers the service. If someone somehow managed to hack into the system, “they’d end up at Edovo,” Amos said.
Although Amos acknowledges the notion originally worried some deputies at the jail, which houses about 2,000 inmates, the pilot program has proved to have a calming effect on inmates who have been given access to the devices. On two visits last week to the day room where the devices are being used, there was something present that is entirely out of the ordinary for the cacophonous jailhouse: silence.
Jason Rogers, 43, who has been in the jail for eight months on drug charges, sat with one of the tablets studying a chapter book and taking notes on a pad. “I think it’s great,” Rogers said, adding that he has used the device to study current events, such as the ongoing war in Syria, or to watch movies. Without access to a tablet, Rogers said, he’d most likely be writing letters or watching television in the day room.
Steve Wilson, 52, who is awaiting the results of an appeal on a federal white-collar crime case, said he uses the devices to listen to TED talks and watch documentaries. In a previous stint at the jail while awaiting trial, Wilson said disputes among bored inmates were common. “At least twice a week, when those doors popped open, there was a fight,” Wilson said. “Now that I’m back I haven’t seen a fight yet. People are taking their issues and instead of taking it out on each other, they have a mechanism of escape where they can bury themselves into that. And there’s going to be more, there’s going to be games, there’s going to be magazines.”
The tablets, which officials say can also be used to eliminate paperwork by allowing inmates to request medical care or to read up on jail policies and procedures, are designed so they cannot be altered to allow communication with the outside. “You’d have to be a genius to figure out how to do that,” Rogers said. The seven-inch tablets cannot be taken into cells, and must be locked in a charging cart at night.
Deputy Brent Snyder, who was watching over inmates on Wednesday, said he was skeptical when he heard inmates would be given access to the small computers, noting that he wanted assurances they could not access the Internet or communicate outside the jail. Since then, Snyder said, he has been won over by the program and the effect it has had on inmates. They are calmer, quieter and eager to use them to study and to listen to music ... and officials say they do not expect any serious violations because the inmates do not want to lose their access to the devices.
Edovo and its tablet programs are the brainchild of Sacramento native Brian Hill, a 2002 Del Campo High School graduate who says his company has about 1,000 tablets in fewer than 10 facilities nationwide, but expects to more than double that in the coming year. As prisons and jails try to focus more on reform than simply punishment, the need for programs that can be made available to inmates is greater than ever, Hill said, and the use of tablets can help. “You’ve got 2 million people behind bars in the nation watching daytime television,” Hill said. “That’s not a recipe for success. With this, there’s a window, there’s a chance for success.”...
The tablets are encased in hard plastic that protects them and prevents them from being opened by inmates. And, Hill said, if someone smuggled a cellphone or other device into the jail and hacked into the secure system, they would only gain access to the coursework Edovo offers. “It’d be the most depressing hack ever,” he said. Hill acknowledged that there is hesitation from some — especially guards — when they first hear about the program. “It generally takes about five minutes,” Hill said. “The minute you see it live and 100 inmates put on headphones and they are quiet for six hours, it really changes people’s perspectives.”
Such programs have been put into use from San Francisco to Pennsylvania using iPads and other tablets and are generating a surprisingly positive response from some. “It’s a good thing,” said Christine Ward, executive director of the Crime Victims Assistance Network Foundation in Sacramento. “I know you don’t often hear that from me.” But, Ward said, as long as inmates are being held accountable for their crimes, it is important for institutions to offer prisoners the ability to improve and educate themselves.
Disconcerting backstory apparently explains quick departure of DOJ's Pardon Attorney
I had seen news late last week that the Justice Department’s relatively new pardon attorney had announced she was resigning her post, and this new Washington Post article about the departure provides some of the backstory. The piece is headlined "Attorney overseeing clemency initiative leaving in frustration," and here are excerpts:
The Justice Department’s pardon attorney — charged with overseeing the review of clemency petitions from federal inmates — is stepping down at the end of January because she is frustrated by a lack of resources for one of the president’s centerpiece criminal-justice initiatives, according to people close to her.
The departure of Deborah Leff, who has been in her role since 2014, comes as the Obama administration struggles to process a backlog of more than 9,000 pending clemency petitions. As the president approaches the end of his second term, time is running out for his high-profile effort to offer clemency to certain nonviolent federal drug offenders harshly sentenced in the nation’s war on drugs.
The Justice Department said it is confident that Leff’s departure will not delay the administration’s clemency initiative, and it hopes to find a replacement quickly. Justice spokeswoman Emily Pierce also said the department is asking Congress to more than double the number of lawyers assigned to the pardon office, from 22 to 46.
Leff could not be reached for comment but released a statement saying that she has known President Obama for more than 20 years and that she thinks “his commitment to reinvigorating the clemency process — and the promise that holds for justice — can change the lives of a great many deserving people.” But Leff added: “It is essential that this groundbreaking effort move ahead expeditiously and expand.”
A former trial lawyer, senior television producer and president of the Public Welfare Foundation, Leff was highly respected by sentencing reform advocates. “She never got the staffing she needed,” said one friend. “She was very frustrated.” Other people close to Leff said that she was passionate about making the clemency initiative work but had been unhappy for quite some time about not having enough resources.
Obama has commuted the sentences of 184 federal inmates. White House Counsel Neil Eggleston said in December that Obama has commuted the sentences of more individuals than the past five presidents combined and that the president will grant more commutations and pardons this year. But advocates of sentencing reform are disappointed that the clemency process has not moved more quickly and that more of the thousands who have submitted clemency petitions have not had their sentences commuted....
A senior Justice Department official said that the clemency initiative is of the highest priority for the department and that those involved have been working tirelessly to move petitions along as quickly as they can with a limited budget and legal restrictions....
“To lose the head of the office that’s running the clemency initiative is concerning,” said Kevin Ring, vice president of Families Against Mandatory Minimums. “We hope she is replaced by someone who is as dedicated, smart, passionate and committed as she was to getting these petitions through.”
Pierce said the department has been constrained by law in terms of how many resources and how much of its budget it can devote to the clemency initiative. Pierce said the department has “provided additional funds to the pardon office within the confines of our budget and has detailed dozens of additional full- and part-time attorneys over the course of the clemency initiative.” Despite the constraints, a Justice official said that lawyers are reading each of the thousands of clemency petitions that have been submitted and have prioritized the ones that best meet the new criteria set out by the administration....
Justice officials said that they expect to name a replacement before Leff leaves Jan. 31. “A new pardon attorney will be named in the near future and we expect the work of the pardon attorney’s office to continue apace as we identify and vet potential candidates for the president’s clemency priorities,” Pierce said. “The Justice Department is dedicated to the goals of the clemency initiative and is steadfastly committed to doing all it can to ensure fairness in the criminal-justice system.”
I find this story disconcerting because it seems to me just another manifestation of the problems Prez Obama has himself created by having ignored his clemency powers during his first six years in office and then deciding he should try to make up for lost time on his way out of the Oval Office. I had (foolishly?) hoped Prez Obama would have been a lot smarter in this important space in the wake of the ugly last-day clemency doings of Prez Clinton back in 2001 and especially with out-going Prez Bush telling in-coming Prez Obama on Inauguration Day 2009 that clemency matters should garner his attention. But here we are seeing, yet again, that by ignoring these matters until essentially the last minute, Prez Obama's record in this space will be marked by various missteps and frustrations (although I remain hopeful that even his "last-minute" efforts will still result in a notable improvement on the work of many of his recent predecessors in the clemency arena).
Supreme Court, reversing Kansas Supreme Court, finds no Eighth Amendment problems with Kansas capital procedures
Continuing to do significant capital sentencing procedure work at the start of 2016, the Supreme Court this morning handed down an opinion rejecting Eighth Amendment concerns with the way Kansas has imposed some capital sentences. The opinion of the Court in Kansas v. Carr, No. 14-449 (S. Ct. Jan. 20, 2016) (available here), authored by Justice Scalia and joined by every Justice except Justice Sotomayor, is at times quite nuanced in its analysis and at times quite crisp. Here are excerpts from the start and body of the opinion highlighting these realities:
The Supreme Court of Kansas vacated the death sentences of Sidney Gleason and brothers Reginald and Jonathan Carr. Gleason killed one of his co-conspirators and her boyfriend to cover up the robbery of an elderly man. The Carrs’ notorious Wichita crime spree culminated in the brutal rape, robbery, kidnaping, and execution-style shooting of five young men and women. We first consider whether the Constitution required the sentencing courts to instruct the juries that mitigating circumstances “need not be proved beyond a reasonable doubt.” And second, whether the Constitution required severance of the Carrs’ joint sentencing proceedings....
As an initial matter, the defendants’ argument rests on the assumption that it would be unconstitutional to require the defense to prove mitigating circumstances beyond a reasonable doubt. Assuming without deciding that that is the case, the record belies the defendants’ contention that the instructions caused jurors to apply that standard of proof....
Not once do the instructions say that defense counsel bears the burden of proving the facts constituting a mitigating circumstance beyond a reasonable doubt — nor would that make much sense, since one of the mitigating circumstances is (curiously) “mercy,” which simply is not a factual determination.....
The instructions repeatedly told the jurors to consider any mitigating factor, meaning any aspect of the defendants’ background or the circumstances of their offense. Jurors would not have misunderstood these instructions to prevent their consideration of constitutionally relevant evidence....
Whatever the merits of defendants’ procedural objections [about a joint sentencing], we will not shoehorn them into the Eighth Amendment’s prohibition of “cruel and unusual punishments.” As the United States as amicus curiae intimates, the Eighth Amendment is inapposite when each defendant’s claim is, at bottom, that the jury considered evidence that would not have been admitted in a severed proceeding, and that the joint trial clouded the jury’s consideration of mitigating evidence like “mercy.” Brief for United States 24, n. 8. As we held in Romano v. Oklahoma, 512 U. S. 1 (1994), it is not the role of the Eighth Amendment to establish a special “federal code of evidence” governing “the admissibility of evidence at capital sentencing proceedings.” Id., at 11–12. Rather, it is the Due Process Clause that wards off the introduction of “unduly prejudicial” evidence that would “rende[r] the trial fundamentally unfair.” Payne v. Tennessee, 501 U. S. 808, 825 (1991); see also Brown v. Sanders, 546 U. S. 212, 220–221 (2006).
The test prescribed by Romano for a constitutional violation attributable to evidence improperly admitted at a capital-sentencing proceeding is whether the evidence “so infected the sentencing proceeding with unfairness as to render the jury’s imposition of the death penalty a denial of due process.” 512 U. S., at 12. The mere admission of evidence that might not otherwise have been admitted in a severed proceeding does not demand the automatic vacatur of a death sentence.
In light of all the evidence presented at the guilt and penalty phases relevant to the jury’s sentencing determination, the contention that the admission of mitigating evidence by one brother could have “so infected” the jury’s consideration of the other’s sentence as to amount to a denial of due process is beyond the pale.
Justified criticisms of Prez Obama's not-so-justified criticisms of proposed mens rea reform
This new National Review commentary authored by James Copland and Rafael Mangual, headlined "On Criminal-Justice Reform, Obama Should Practice What He Preaches — Civility," levels complaints at the Obama Administration for complaining about mens rea reform efforts in Congress. Here are excerpts:
In his final State of the Union address, President Obama expressed his hope to reach across the aisle on what he described as a “priority” issue: criminal-justice reform. Although we strongly agree with the president that reforming the federal approach to criminal justice should be a priority, he has unfortunately jeopardized such reforms with an uncompromising hostility to Republicans’ — and other Democrats’ — reform ideas....
Following the lead of left-wing advocacy groups including Public Citizen and Think Progress, the White House and the Justice Department almost instantly came out against both criminal-intent bills [introduced in the House and Senate]. A White House official told the Huffington Post that these bills would “enable defendants charged with a range of offenses — including violent crimes, terrorism, and sexual offenses — to potentially escape liability for egregious and harmful conduct.”
These claims are pure poppycock and completely at odds with the president’s State of the Union call for a “rational, constructive,” and “more elevated debate.” To be sure, there might be reasonable critiques of the draft legislation and possible amendments that could create different definitions or standards — just as the sentencing reforms supported by President Obama ought to be vetted to make sure that they are not releasing violent criminals back onto the streets. But by drawing a line in the sand against Republican priority reforms — and by suggesting that Republican and Democratic legislators who support criminal-intent standards are somehow soft on terrorism or sexual assault — the president is hardly being constructive or elevating the debate on criminal-justice reform.
In essence, the bill so vehemently opposed by the White House would merely require Congress to be explicit whenever it wishes to criminalize conduct without regard to the intent of the actor. It would prevent courts from assuming from congressional silence that Congress meant to send unknowing violators of a law or regulation to jail, as opposed to merely hitting them with an often-hefty civil fine or penalty.
Democrat stalwarts on the House Judiciary Committee, including John Conyers (D., Mich.) and Shelia Jackson Lee (D., Texas), are supporting this reform because they understand it’s a matter of fundamental fairness. They also understand that it is small businesses and individuals, disproportionately minorities and those less well off, that tend to get unknowingly entangled in the labyrinthine federal code; big businesses and their executives have teams of lawyers to advise them.
The fact is that 15 states have explicit “default” standards for criminal intent like those in the bipartisan task force’s bill. Michigan enacted such a reform most recently, in December 2015. The Michigan ACLU spoke in favor of the law, and it passed both houses of the legislature unanimously.
If President Obama really does care about getting something done on the issue of criminal-justice reform, he ought to heed his own advice and take a more civil tone in his own contributions to that debate. It’s hardly “constructive” to demonize others’ positions and adopt a “my way or the highway” negotiating stance. With Republicans enjoying majorities in both chambers, the criminal-intent piece of the reform effort — a product of more than two years’ effort by a bipartisan task force — is especially important if the president truly hopes to achieve meaningful progress toward criminal-justice reform in his remaining year in office.
Some recent and older related posts:
- Can and will Prez Obama effectively help get a federal sentencing reform bill to his desk?
- Might misguided mens rea reform concerns derail federal sentencing reform's momentum?
- "The Pressing Need for Mens Rea Reform"
- So thankful for federal sentencing reform moving ahead in Congress... but...
- "Our Voluminous Laws And The Need For ‘Mens Rea’ Reform"
January 19, 2016
New FBI data indicates violent crime up, property crime down in first half of 2015
This new official FBI press release reports on preliminary crime data for the first six months on 2015, and the basic story is not encouraging. Here are the details via the parts of the release:
Statistics released today in the FBI’s Preliminary Semiannual Uniform Crime Report revealed overall declines in the number of property crimes reported and overall increases in the number of violent crimes reported for the first six months of 2015 when compared with figures for the first six months of 2014. The report is based on information from 12,879 law enforcement agencies that submitted three to six months of comparable data to the FBI’s Uniform Crime Reporting (UCR) Program for the first six months of 2014 and 2015.
All of the offenses in the violent crime category — murder and non-negligent manslaughter, rape (revised definition), rape (legacy definition), aggravated assault, and robbery — showed increases when data from the first six months of 2015 were compared with data from the first six months of 2014. The number of rapes (legacy definition) increased 9.6 percent, the number of murders increased 6.2 percent, aggravated assaults increased 2.3 percent, the number of rapes (revised definition) rose 1.1 percent, and robbery offenses were up 0.3 percent.
Violent crime increased in all but two city groupings. In cities with populations from 50,000 to 99,999 inhabitants, violent crime was down 0.3 percent, and in cities with 500,000 to 999,999 in population, violent crime decreased 0.1 percent. The largest increase in violent crime, 5.3 percent, was noted in cities with 250,000 to 499,999 in population.
Violent crime decreased 3.3 percent in non-metropolitan counties but rose slightly, 0.1 percent, in metropolitan counties.
Violent crime increased in all but one of the nation’s four regions. These crimes were down 3.2 percent in the Northeast but increased 5.6 percent in the West, followed by rises of 1.6 percent in the South and 1.4 percent in the Midwest.
In the property crime category, burglary offenses dropped 9.8 percent, and larceny-theft offenses decreased 3.2 percent in the first six months of 2015 compared with the same months from 2014. Only motor vehicle theft showed an increase (1.0 percent).
Each of the city population groups had decreases in the overall number of property crimes. Law enforcement agencies in cities with populations under 10,000 inhabitants reported the largest decrease, 7.1 percent.
Property crime decreased 12.3 percent in non-metropolitan counties and 6.0 percent in metropolitan counties.
The West was the only region to show an increase (2.4 percent) in property crime. Reports of these offenses declined 8.0 percent in the Northeast, 7.0 percent in the Midwest, and 6.4 percent in the South.
Former AG Michael Mukasey and other former DOJ leaders urge Senate to move forward with vote on sentencing and corrections reform
This new article from Roll Call, headlined "Former Officials Press Senate for Sentencing Bill Vote," reports on the latest inside-the-Beltway federal sentencing reform development. Here are the basics:
Dozens of former federal prosecutors and government officials sent a letter to the Senate leadership Tuesday urging a vote on a bipartisan bill to overhaul the nation’s criminal sentencing laws.
The letter to Majority Leader Mitch McConnell, R-Ky., and Minority Leader Harry Reid, D-Nev., seeks to counter concerns about the bill (S 2123) and instead focus on improvements it makes to the corrections system. “Otherwise, good policy reforms could easily fall victim to politics and fear,” the letter states.
Signers include Michael Mukasey, an attorney general under President George W. Bush, former FBI directors Louis J. Freeh and William S. Sessions, several former U.S. attorneys and several federal appeals court and district court judges....
McConnell, who makes the decision about floor votes, has not said if the Senate will vote on the bill. Majority Whip John Cornyn, R-Texas, a co-sponsor, has said that would happen in 2016. Judiciary Committee Chairman Sen. Charles E. Grassley, R-Iowa, is also pressing for a vote soon.
The momentum for a sentencing overhaul bill faces a challenge because of the tight schedule in an election year and the possibility that the Republicans won't retain their Senate majority. There is also opposition, including from a separate group of former federal prosecutors who sent a letter to leadership in December with concerns about the bill.
The letter sent by Mukasey and others Tuesday seeks to counter those concerns. It says the bill makes “modest, reasonable changes” that would amend “just a few sentencing policies that produced unintended consequences and created imbalance in the scales of justice.”
The bill ties longer mandatory minimum prison sentences to high-level drug traffickers and violent criminals, gives prosecutors new tools to seek enhanced penalties for violent criminals and gives federal prisons a way to make the public safer by reducing the number of inmates who commit crimes once released from their sentence.
“A drug dealer using a gun will still be subject to a significant mandatory minimum sentence for use of the firearm plus additional time for the underlying drug offense,” the letter states. “And since the Department of Justice has committed to a case-by-case review to ensure that any resentencing is done carefully and with complete transparency, offenders who pose a threat to public safety will not be released early.”
Having former GW Bush Attorney General Mukasey on this pro-reform letter strikes me as quite significant because he has been seemingly hesitatant to support big sentencing reforms in the recent past. I doubt this letter itself will dramatically change the political and practical dynamics of getting federal sentencing reform done in the coming months, but advocates of reform shold certainly be glad to have former AG Mukasey now on the reform bandwagon.
UPDATE: The letter signed by former AG Mukasey reference above is available at this link. Another similar letter urging federal sentencing reforms addressed to both House and Senate leaders signed by over 70 prominent police chiefs and federal prosecutors is available at this link. In addition, this new Politico article, headlined "GOP split threatens sentencing overhaul," reports on the state of play in the Senate. Here is how it starts:
Senate Majority Leader Mitch McConnell faces snowballing pressure to tackle an overhaul of the criminal justice system. But deep dissension within his own party — between pro-reform Republicans and law-and-order types — is threatening one of the few items on the congressional agenda with a real chance of becoming law this year.
Early accounts of the developing post-Hurst hydra for past and present capital cases in Florida
In this post last week not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what will likely be multi-headed, snake-like litigation that will develop in various ways in various Florida courts as both state and federal judges try to make sense of just what Hurst must mean for past, present and future capital cases.
Not surprisingly, as reported in these two new local articles, courts, lawyers and experts are already puzzled by the situation that SCOTUS has now handed them:
From the Orando Sentinel here, "Florida death penalty experts disagree on who will be spared execution"
From the Florida Times-Union here, "Courts face dilemma with Donald Smith and other death-penalty cases coming up after Supreme Court ruling"
As these capital cases are sure to unfold in hard-to-predict ways in the weeks and months ahead, I cannot help but be especially sympathetic to the difficult position in which Florida's prosecutors and the families of victims of capital murderers now find themselves in. Until the Florida legislature enacts a Hurst fix, and likely long thereafter, so many of the worst-of-the-worst murder cases are going to be in a legal limbo that will make hard cases for prosecutors and hard times for families only that much harder.
Prior related posts:
- SCOTUS strikes down Florida's capital sentencing scheme based on Sixth Amendment
- A few (too) quick thoughts on the post-Hurst hydra
- Florida Supreme Court wasting no time trying to figure out impact of Hurst
SCOTUS grants cert on two more criminal cases (and on Obama's immigration policies)
Big news this morning from the Supreme Court is reported in this new SCOTUSblog post from Lyle Denniston:
The Obama administration’s sweeping change of deportation policy for undocumented immigrants will get a thorough review by the Supreme Court, including the question of whether it violates the Constitution, the Court announced Monday. The case will be set for argument in April, making it almost certain that there will be a final ruling by the end of June — in the midst of a presidential election campaign in which immigration is a major issue.
I suppose sentencing fans can and should be interested in the range of (quasi-?)criminal justice aspects of the law and policy involving immigration. But I am more revved up by this new SCOTUS order list because cert review was also granted on two new federal criminal cases, one of which appears to involve insider trading, the other another ACCA dispute. I hope to have more information on these grants this afternoon after I deal with some morning off-line commitments.
UPDATE: The SCOTUSblog post linked above now has this additional brief descriptions of the other cert grants this morning, together with helpful links to the SCOTUS pages on each case:
Besides the immigration case, the Court on Tuesday accepted review of three other cases: a significant new case on insider trading in securities (Salman v. United States, grant limited to Question 1 in the case); a plea for further clarification of the enhanced sentences available under the federal Armed Career Criminal Act (Mathis v. United States), and the power of a judge, after dismissing jurors in a case, to recall the jury for further deliberation (Dietz v. Bouldin).
As always, I would be grateful for early reader perspectives on which of these cases ought to garner extra attention in future weeks (and posts).
January 18, 2016
Some still timely phrases from MLK's "I Have A Dream" speech for advocates of criminal justice reforms
Long-time readers likely know that I have long stated in this space that I think Martin Luther King, whom we all should take time to honor today, would have been concerned with criminal justice and especially sentencing issues if he had lived into the modern era of mass incarceration. I also have a tradition of spending MLK Day listening to the full legendary "I Have A Dream" speech Dr. King delivered in the "symbolic shadow" of Abraham Lincoln in August 1963. And as I was listening to the speech this year, more than a few lines had a timely resonance in light of on-going efforts to move forward with modern criminal justice reforms. Here are some of the lines catching my ear today:
We have also come to this hallowed spot to remind America of the fierce urgency of now. This is no time to engage in the luxury of cooling off or to take the tranquilizing drug of gradualism. Now is the time to make real the promises of democracy.... Now is the time to make justice a reality for all of God's children.
It would be fatal for the nation to overlook the urgency of the moment. This sweltering summer of the Negro's legitimate discontent will not pass until there is an invigorating autumn of freedom and equality....
But there is something that I must say to my people who stand on the warm threshold which leads into the palace of justice. In the process of gaining our rightful place we must not be guilty of wrongful deeds. Let us not seek to satisfy our thirst for freedom by drinking from the cup of bitterness and hatred.
We must forever conduct our struggle on the high plane of dignity and discipline. We must not allow our creative protest to degenerate into physical violence. Again and again we must rise to the majestic heights of meeting physical force with soul force. The marvelous new militancy which has engulfed the Negro community must not lead us to a distrust of all white people, for many of our white brothers, as evidenced by their presence here today, have come to realize that their destiny is tied up with our destiny. They have come to realize that their freedom is inextricably bound to our freedom.
One reason I have spent much of may professional career working on criminal justice issues is because I strongly believe that freedom is a preeminently important human value and that each and every American's freedom is, in many senses, inextricably bound to each and every other American's freedom. These beliefs keep me ever engaged in the struggle for an ever-sounder criminal justice system, keep me ever committed to the "fierce urgency of now," and keep me ever eager to encourage all to seek to satisfy the thirst for freedom without "drinking from the cup of bitterness and hatred."
With the echoes of this remarkable speech still in my head, let me conclude this honoring of Dr. King by providing links to some prior MLK Day posts (from both of my main blogs). As always, readers are encouraged to add their own perspectives via the comments (and also encouraged to keep it civil in honor of one of America's great civil rights leaders).
- Should criminal justice reform be the new civil rights movement?
- Honoring MLK by asking hard questions
- Reflecting on race and criminal justice realities to honor MLK's legacy
- Another reminder of race and criminal justice realities to honor MLK's legacy
- Is there less discussion of race and criminal justice since Obama's election?
- NPR's Fresh Air celebrates MLK Day by discussing The New Jim Crow
- Fittingly for MLK day, Prez Obama laments class and race disparities from pot prohibition
- MLK marijuana mash-up: "I Have A Dream..." we are free at last from pot prohibition
January 17, 2016
Notable Yale Law Journal Forum essays respond to big report on solitary confinement
As reported in this prior post from this past fall, the Association of State Correctional Administrators with researchers at Yale Law School together produced an important report about solitary confinement titled Time-in-Cell: The Liman-ASCA 2014 National Survey of Administrative Segregation in Prison. This report provided updated information, as of the fall of 2014, on the numbers and the conditions of prisoners in restrictive housing nationwide.
Now the folks at the Yale Law Journal have put together through its on-line Forum this impressive collection of essays that respond to Time-In-Cell. Here are the contents with links via the essay titles:
Only Once I Thought About Suicide by Reginald Dwayne Betts
Worse than Death by Alex Kozinski
Staying Alive: Reforming Solitary Confinement in U.S. Prisons and Jails by Marie Gottschalk
Time-In-Cell: Isolation and Incarceration by Judith Resnik, Sarah Baumgartel & Johanna Kalb
Time-In-Cell: A Practitioner's Perspective by Ashbel T. ("A.T.") Wall