September 17, 2016
Notable opposition to initiative seeking to enshrine the death penalty in Oklahoma's state constitutions
Two big substantive fights via voter initiative concerning the death penalty this fall are taking place in California and Nebraska. But this AP article highlights that Oklahoma voters are being presented with an important kind of stylistic question concerning capital punishment. And, as the article explains under the headline "Oklahoma death penalty question faces bipartisan opposition," there is some notable disaffinity for its proposition. Here are the basic details:
A proposal to ask Oklahoma voters to enshrine the death penalty in the state’s nearly 100-year-old constitution sailed easily through the Legislature, but now is facing opposition from groups on opposite ends of the political spectrum. In addition to various faith and civil rights organizations that traditionally oppose capital punishment, several conservative groups and the newly recognized Oklahoma Libertarian Party also are joining the fight against State Question 776.
“The conservative position is against the death penalty because it costs more than life (in prison), more than life without parole,” said Marc Hyden, national advocacy coordinator for Conservatives Concerned About the Death Penalty, one of several organizations that helped kick off rallies in Oklahoma City and Tulsa opposing the question. “Beyond that … we believe the founding fathers had the foresight to institute checks and balances, and this aims to subvert those checks and balances.”
A group opposing the state question — Say No To SQ 776 — has raised about $4,000, according to its most recent report with the Oklahoma Ethics Commission. There don’t appear to be any organized groups supporting the question.
The state question was sent to the voters through a resolution approved by the Legislature in 2015 following a botched execution and problems with the administration of lethal injection. Sponsored by two pro-death penalty lawmakers, it would ensure that death sentences would not be reduced if a method of execution is ever ruled invalid and gives the Legislature the explicit power to designate any method of execution not prohibited by the U.S. Constitution. It also states that the imposition of the death penalty will not be considered cruel and unusual punishment, which is currently prohibited under the Oklahoma Constitution.
Because the language would be added to the state constitution, it would also make it more difficult for the courts or future Oklahoma legislatures to eliminate the death penalty, said Rep. Mike Christian, a former highway patrolman who authored the bill. “It’s such a serious issue, we decided to put it in the Constitution,” said Christian, R-Oklahoma City. “I believe it will get overwhelming support. We thought we should put it in the constitution, just to send a message that we support it as a people.”
The measure passed 80-10 in the House and 44-0 in the Senate, receiving support from Democrats and Republicans. But since its passage, Oklahoma has continued to have problems administering lethal injections....
“If we cannot trust our state government to fund our schools, our hospitals, fund our infrastructure, how in the world can we continue to trust them to strap someone down on a table, put a needle in their arm and fill it full of poison until they’re dead,” said Ryan Kiesel, executive director of the Oklahoma Civil Liberties Union of Oklahoma. “We cannot continue to trust them to do that.”
Interesting accounting of "The Economic Burden of Incarceration in the U.S." as approaching 6% of GDP
Via the always helpful Marshall Project, I just came across this interesting study produced this summer by folks at Washington University in St. Louis. The study is titled "The Economic Burden of Incarceration in the U.S." Here is the abstract:
This study estimates the annual economic burden of incarceration in the United States. While prior research has estimated the cost of crime, no study has calculated the cost of incarceration. The $80 billion spent annually on corrections is frequently cited as the cost of incarceration, but this figure considerably underestimates the true cost of incarceration by ignoring important social costs. These include costs to incarcerated persons, families, children, and communities.
This study draws on a burgeoning area of scholarship to assign monetary values to twenty-two different costs, which yield an aggregate burden of one trillion dollars. This approaches 6% of gross domestic product and dwarfs the amount spent on corrections. For every dollar in corrections costs, incarceration generates an additional ten dollars in social costs. More than half of the costs are borne by families, children, and community members who have committed no crime. Even if one were to exclude the cost of jail, the aggregate burden of incarceration would still exceed $500 million annually [I think the authors mean $500 billion here based on the report that follows].
September 16, 2016
"What crimes warrant the death penalty? Depends on the prosecutor"
The title of this post is the headline of this new Los Angeles Times editorial, which gets started this way:
If the government is going to impose a punishment as medieval and irreversible as the death penalty, it should take pains to ensure that the penalty is invoked only for the most heinous crimes and that it is applied fairly and consistently. Data compiled by the state attorney general’s office, however, suggest that California is falling short of those ideals because of the individual judgments of local prosecutors.
To be eligible for a death sentence in this state, a person must be convicted of first-degree murder enhanced by any one of about three dozen special circumstances — more than just about any other state (if California wants to reduce death sentences, it could start by reassessing these threshold crimes). There’s murder for hire. Murder to silence a witness. Killing a police officer. Wrecking a train. Using poison. Murder, even, when killing wasn’t the intent but occurred during the commission of any of a dozen other crimes. And on and on.
Who decides whether a murder case involves one of those special circumstances, and thus warrants the death penalty? A jury, followed by the trial judge’s affirmation (a judge can reduce a death sentence, but not order one if the jury didn’t recommend it). A jury, though, doesn’t consider a death sentence unless a prosecutor asks it to. And that’s one of the places where capital punishment is inherently inconsistent. National studies have found that whether someone faces a death sentence depends significantly on the county in which the crime is committed because county-level prosecutors are the ones who decide whether to put the death penalty in play. In fact, 2% of counties nationwide account for a majority of death sentences.
How inconsistent is application of the death penalty? From 2011 to 2015, California juries handed down 74 death sentences, more than half from Los Angeles and Riverside counties, with 23 each. Yet Riverside County is only one-quarter the size of Los Angeles County and had fewer than one-sixth of the homicides during that same time. Is the nature of homicide in Riverside that much more heinous than in Los Angeles County? No. The difference between the two counties lies in the makeup of the prosecutorial teams deciding whether to seek the death penalty, with the standard set by the elected district attorney.
Tellingly, there was a change in the Riverside district attorney’s office in January 2015, and the current top prosecutor, Mike Hestrin, has been less aggressive in pursuing the death penalty than his predecessor, Paul E. Zellerbach, who himself sought it less often than the D.A. he replaced. Further evidence that individual prosecutors make a difference: Hestrin inherited 22 capital cases and, after reviewing them, dropped the death penalty against seven defendants. So two different district attorneys, looking at the same seven cases, came to different conclusions on whether the crimes merited a death sentence.
Hestrin and others argue that county district attorneys represent the views of their constituents, which explains why liberal San Francisco County tends not to seek the death penalty and more conservative Riverside County does (of the 747 people on death row, one is a San Francisco County case compared with 89 from Riverside). Yet that is one of the many grave flaws of capital punishment in general, and in California specifically. Capital punishment is authorized only by state law, but there is no objective statewide standard against which factors are weighed and a decision is made. It is unconscionable that the specifics of a crime are subordinate to a prosecutor’s whim in determining whether a death sentence will be sought.
GOP Congressman Sensenbrenner explains why federal criminal justice reform is necessary to fix a "broken system" which is "fiscally unsustainable" and "morally irresponsible"
Representative Jim Sensenbrenner has a long and dynamic history working on federal criminal justice issues, and not that long ago he was an ardent supporter of many mandatory minimum sentencing provisions. But more recently, Rep Sensenbrenner has become a potent voice calling for federal reforms, and his latest pitch on that front appear in this new commentary headlined "Criminal Justice Reform Bills Are On The Table In Congress. Now It Needs To Pass Them." Here are excerpts from this piece:
In 2013, House Judiciary Chairman Bob Goodlatte (R-VA) created the Over-criminalization Task Force which examined the depth, seriousness, and complexities of the problems facing our federal criminal justice system. The findings that came from the task force allowed Members on the Committee to identify key problem areas and begin the reform process. Last year, momentum for criminal justice reform reached an all-time high. It united a wide range of law enforcement and political organizations, advocacy groups, and Congressional leaders under a common goal: to fix our broken system....
Although a large number the nation’s 2.3 million inmates deserve their place behind bars, too many low-level, non-violent individuals are caught up in broken system. Their incarceration diverts limited resources away from other priorities, such as policing and the capture and punishment of violent and career criminals. For too long, the pressing need for criminal justice reform has been put on the backburner. It has led to increasing financial burdens on taxpayers, violent outbursts in economically depressed neighborhoods throughout the nation, and the breakdown of hundreds of thousands of American families.
Fifty percent of the current prison population suffers from substance abuse problems, mental health issues, or a combination of both. Our criminal justice system is not equipped to provide these individuals with the help they need to gain control of their lives and acquire the critical work skills necessary to successfully re-enter society and the workforce. Without these basic tools, the likelihood of recidivism is high....
Each piece of legislation currently on the table addresses specific problems in the current system and offers common sense, fiscally responsible solutions that will increase public safety, support law enforcement and victims of crime, and decrease the overwhelming financial burden on hardworking taxpayers. However, none of it matters unless Congress is willing to pass legislation and President Obama is ready to sign it.
At the heart of federal criminal justice reform is the desire to create a better way forward for every American struggling under our broken system. Families ripped apart by incarceration, communities divided by a seemingly impenetrable wall between law enforcement and the neighborhoods they protect, and an ineffective justice system not only weakens the fabric of society, but hinders economic growth and opportunity for all Americans.
Three years ago, Congress began a journey to rectify the injustices in our federal criminal justice system. Right now, we have the opportunity to finish the job and pass meaningful and effective reform legislation. Our system cannot continue on its current trajectory. It’s not only fiscally unsustainable, but morally irresponsible. We must do better and we can do better.
Prior recent posts regarding some federal CJ work and statements by Rep Sensenbrenner:
- Bipartisan SAFE Justice Act with array of federal sentencing reforms introduced by House leaders
- In praise of GOP Rep. Sensenbrenner making the moral case for sentencing reform
- Rep. Sensenbrenner explains why "Now is the time for criminal justice reform"
September 16, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
"Clarity in Criminal Law"
The title of this post is the title of this timely new article authored by Shon Hopwood now available via SSRN. Here is the abstract:
Over the past thirty years, thousands of new federal criminal laws have been enacted, many of which are unclear and leave prosecutors and courts to now define the boundaries of the criminal code. Tolerating unclear laws in the criminal arena has always been problematic, but it is especially so in this era of overcriminalization and excessive punishment, where a lack of clarity can result in arbitrary application of criminal statutes and the sentencing consequences of a conviction are so severe. Although several justices have noted the lack of clarity in the criminal law, the Court as a whole has not fully reacted.
This Article suggests what that reaction should be. It argues for a more robust review of unclear federal criminal laws, using amplified versions of two tools already at the Court’s disposal: the rule of lenity and void for vagueness doctrine. Employing those doctrines vigorously would, in effect, create a clear statement rule in criminal law.
Detailing interesting sentencing dynamics in the latest batches of "term" commutations by Prez Obama
USA Today has this great new article highlighting an especially interesting aspect of the most recent clemency work by President Obama. The piece is headlined "For Obama, a shift in clemency strategy," and here are excerpts:
For 126 federal inmates who received presidential clemency last month, the good news might have come with a dose of disappointment. President Obama had granted their requests for commutations, using his constitutional pardon power to shorten their sentences for drug offenses. But instead of releasing them, he left them with years — and in some cases, more than a decade — left to serve on their sentences.
As Obama has begun to grant commutations to inmates convicted of more serious crimes, Obama has increasingly commuted their sentences without immediately releasing them. These are what are known as "term" commutations, as opposed to the more common "time served" commutations, and they represent a remarkable departure from recent past practice. Unlike a full pardon, commutations shorten sentences but leave other consequences of the conviction in place.
A USA TODAY analysis of Obama's 673 commutations shows a marked change in strategy on his clemency initiative, one of the key criminal justice reform efforts of his presidency. Before last month, almost all of the inmates whose sentences were commuted were released within four months, just long enough for the Bureau of Prisons to arrange for court-supervised monitoring and other re-entry programs. But in the last two rounds of presidential clemency in August, 39% of commutations come with a long string attached: a year or more left to serve on the sentence.
The strategy has also allowed Obama to commute the sentences of even more serious offenders. Before last month, 13% of inmates receiving clemency had used a firearm in the offense. For those granted presidential mercy last month, it was 22%. Through lawyers in the Justice Department and the White House Counsel's Office, the president is effectively recalculating the sentences using the federal guidelines in effect today — as opposed to the harsher penalties mandated by Congress in the 1980s and '90s.
While previous presidents have granted term commutations on a case-by-case basis — President Bill Clinton required a Puerto Rican nationalist convicted of seditious conspiracy to serve five more years, and President Richard Nixon made a Washington, D.C. murderer serve another decade — Obama appears to be the first to employ them as a matter of policy. "There are a number of cases where it’s a genuine re-sentencing. It’s unprecedented,” said former pardon attorney Margaret Love, who served under Presidents George H.W. Bush and Clinton. “That signals to me that the power is being used in a way it’s never been used before.”
There may also be a political calculation to the new clemency strategy, reflecting a general understanding that there's no guarantee that a President Hillary Clinton or Donald Trump would continue Obama's signature clemency initiative. While it's not entirely settled, most scholars believe a commutation warrant cannot be revoked by a future president once it's granted, delivered and accepted.
Explaining his philosophy on commutation power at a press conference last month — the day after he set a single-day clemency record by granting 214 commutations — Obama gave the example of an inmate who has already served a 25-year sentence but would have only served 20 if sentenced under today's laws. "What we try to do is to screen through and find those individuals who have paid their debt to society, that have behaved themselves and tried to reform themselves while incarcerated, and we think have a good chance of being able to use that second chance well," he said.
But increasingly, recipients of Obama's mercy are years away from paying their debt to society.
White House Counsel Neil Eggleston, who's the last stop for a clemency application before it goes to the president, acknowledged the change in strategy on Aug. 3, the day Obama issued 214 commutations. "While some commutation recipients will begin to process out of federal custody immediately, others will serve more time," he wrote in a blog post. "While these term reductions will require applicants to serve additional time, it will also allow applicants to continue their rehabilitation by completing educational and self-improvement programming and to participate in drug or other counseling services."
Critics say Obama is no longer reserving his clemency power for extraordinary circumstances, but instead substituting his own judgment for that of Congress and the courts. "To impose these things, and to have the commutation take effect after he leaves office — and even after the presidency of someone who succeeds him — seems inappropriate to me," said Rep. Bob Goodlatte, R-Va., chairman of the House Judiciary Committee.
But Goodlatte also acknowledged that the power to "grant reprieves and pardons for offenses against the United States" is one of the Constitution's most ironclad powers, and amending the Constitution would be difficult....
"He has effectively set himself up as a judge, reviewing thousands of cases where they’ve been prosecuted, convicted, sentenced and appealed beyond the district court level. And he's undercut all that work by commuting their sentences," Goodlatte said. "I think the president is taking a misguided approach to this issue when he tries to set himself up as a super-judge who would oversee the actions of a separate branch of government."
Mary Price, who has represented drug offenders seeking presidential clemency, said the president is the only person who can act under present law. "In our system, there's a heavy emphasis on finality of judgment," said Price, chief counsel for Families Against Mandatory Minimums, which advocates for changes in drug laws. "The court has no jurisdiction to go back and change that sentence." For inmates with one or two years left on their Obama-shortened sentence, the president's clemency could motivating them to prepare for reentry into society, Price said. One drug treatment program gives inmates an additional year off their sentence if they complete it.
While Obama's re-sentencing strategy is a departure from recent practice, experts note that presidents have granted term commutations before. For example, any commutation of the death penalty to life imprisonment would fit the definition of that the Justice Department calls a "term commutation," as opposed to the more typical "time served" commutation.
And if recent presidents haven't done it that way, it's more because they've granted so few commutations to begin with. As the White House is quick to note, Obama has now commuted the sentences of more prisoners than the previous 10 presidents — that's Dwight Eisenhower through George W. Bush — combined. "Is Obama doing it at some unprecedented level? I don't know. Maybe," said P.S. Ruckman Jr., a political scientist who has analyzed data on presidential clemency back to George Washington. "But I am not so sure what to make of that either," he said. "That's what checks and balances are all about."
September 16, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
September 15, 2016
Interesting (and already dated) census of problem-solving courts from BJS
The Bureau of Justice Statistics just released this interesting new report titled Census of Problem-Solving Courts, 2012," and here are its identified " HIGHLIGHTS":
In 2012, 65% of all problem-solving courts accepted cases after the defendant entered a guilty plea.
More than half (56%) of problem-solving courts in 2012 did not accept applicants with a history of violent crime and nearly two-thirds (65%) did not accept applicants with a history of sex offenses.
In 38% of veterans courts and 11% of domestic violence courts, applicants with a history of violent crime were ineligible.
Fifty-three percent of all problem-solving courts active in 2012 were established prior to 2005.
Most veterans courts (55%) were established between 2011 and 2012.
Participants in problem-solving courts spent a median of 1 year in the program in 2012.
Overall, 92% of participants who exited from problem-solving courts in 2012 successfully completed the program.
Twenty-one percent of youth specialty courts reported that 100% of participants completed the program in 2012.
Successful program completion commonly included dismissal of the case (61%) or a suspended sentence (40%).
Fewer than half (44%) of all problem-solving courts tracked participant progress after program completion in 2012.
"Nickel and Dimed into Incarceration: Cash-Register Justice in the Criminal System"
The title of this post is the title of this intriguing article authored by Laura Appleman now available via SSRN. Here is the abstract:
Criminal justice debt has aggressively metastasized throughout the criminal system. A bewildering array of fees, fines, court costs, non-payment penalties, and high interest rates have turned criminal process into a booming revenue center for state courts and corrections. As criminal justice administrative costs have skyrocketed, the burden to fund the system has fallen largely on the system’s users, primarily poor or indigent, who often cannot pay their burden.
Unpaid criminal justice debt often leads to actual incarceration or substantial punitive fines, which turns rapidly into “punishment.” Such punishment at the hands of a court, bureaucracy, or private entity compromises the Sixth Amendment right to have all punishment imposed by a jury. This Article explores the netherworld of criminal justice debt and analyzes implications for the Sixth Amendment jury trial right, offering a new way to attack the problem. The specter of “cash-register justice,” which overwhelmingly affects the poor and dispossessed, perpetuates hidden inequities within the criminal justice system. I offer solutions rooted in Sixth Amendment jurisprudence.
September 15, 2016 in Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)
Grover Norquist and Wade Henderson say now is the time for federal statutory sentencing reform
This new National Review commentary authored by the notable pairing of Grover Norquist and Wade Henderson makes the case for having Congress finally getting sentencing reform to the desk of Prez Obama now. The piece is headlined "No Better Time Than Now to Pass Justice Reform," and here are excerpts:
Picture this: a legislative reform initiative that has garnered more than 70 percent approval from both Democrats and Republicans in state after state. Imagine a package of reform bills that has brought together elected officials from the left and right and passed through House committee with near unanimous support. Now consider that the speaker of the House is the biggest champion of these bills.
What issue has brought together both ends of Pennsylvania Avenue and has civil-rights groups working with top prosecutors and law enforcement? Justice reform. And given all this success, you would say these policies have every chance of becoming law, right? It’s not that simple, but it should be.
In the months since bipartisan-backed sentencing- and prison-reform legislation was introduced in the House of Representatives, Congress managed to name about ten post offices, revised coastal-barrier boundaries, ordered the Mint to create commemorative coins, and adopted bison as the national mammal of the United States.
In the states during that time, Minnesota introduced and passed the most significant reforms to its drug laws in 30 years. These bills reduced mandatory minimums for low-level drug crimes and devoted greater resources to treatment instead of incarceration. Iowa took similar steps. Maryland repealed mandatory minimum sentences for nonviolent drug offenses. Even states with high incarceration rates took action. Oklahoma and Louisiana eliminated employment barriers for those with criminal records. And Kentucky passed one of the most aggressive expungement bills in the country that seals criminal records for certain offenses.
It’s time for Congress to act on justice reform. The states have proven that treatment and rehabilitation in lieu of incarceration can often provide better outcomes. Unnecessarily harsh sentences for nonviolent offenders do not make better citizens; they lead them to commit more offenses. We also know that the easier it is for someone who leaves incarceration to get a job, improve his education, and support his family, the better shot he has at turning away from crime altogether.
In an election year, real reforms can easily get jettisoned for campaign-trail antics. Yet we know justice reform makes for good politics as well as good policy. In polling in battleground states such as Florida, Nevada, Ohio, and North Carolina, support for reforms that would reduce mandatory minimum sentences and focus resources on rehabilitation ranges from the low 70s to the high 80s for both Republicans and Democrats. These numbers show that the risk lies not in supporting these reforms, but in opposing them.
When one in three American adults has a record, these issues are now affecting every corner of society. That explains why the diversity of support for justice reform spans the breadth and depth of our political ideologies. Whether it’s about redemption and second chances, as is the case for religious groups such as the Southern Baptist Convention, or about reducing the cost of an ineffective system, as is the case for Americans for Tax Reform and many other conservatives, millions of Americans from all different perspectives are getting behind this movement....
Our justice system should be a part of the solution to crime and its root causes. We can do better than using a one-size-fits-all sentencing regime that lumps nonviolent offenders with violent ones. And when some estimates have re-arrest rates for ex-offenders at 65 percent within three years, we cannot afford to continue the status quo. The reforms on the table would improve outcomes while ensuring that public safety is a top priority.
The best chance we have of passing this legislation is now. The political stars are aligned, and support for reform is at a zenith. We need our elected officials to seize this moment and pass legislation that saves money and makes us safer. Congress must not squander this opportunity.
September 14, 2016
"Righting Wrongs: The Five-Year Groundswell of State Bans on Life Without Parole for Children"
In just five years — from 2011 to 2016 — the number of states that ban death-in-prison sentences for children has more than tripled. In 2011, only five states did not permit children to be sentenced to life without parole. Remarkably, between 2013 and 2016, three states per year have eliminated life-without- parole as a sentencing option for children. Seventeen states now ban the sentence.
This rapid rate of change, with twelve states prohibiting the penalty in the last four years alone, represents a dramatic policy shift, and has been propelled in part by a growing understanding of children’s unique capacity for positive change. Several decades of scientific research into the adolescent brain and behavioral development have explained what every parent and grandparent already know — that a child’s neurological and decision-making capacity is not the same as those of an adult. Adolescents have a neurological proclivity for risk-taking, making them more susceptible to peer pressure and contributing to their failure to appreciate long-term consequences. At the same time, these developmental deficiencies mean that children’s personalities are not as fixed as adults, making them predisposed to maturation and rehabilitation. In other words, children can and do change. In fact, research has found that most children grow out of their criminal behaviors by the time they reach adulthood.
Drawing in part from the scientific research, as well as several recent U.S. Supreme Court cases ruling that life-without-parole sentences violate the U.S. Constitution for the overwhelming majority of children, there is growing momentum across state legislatures to reform criminal sentencing laws to prohibit children from being sentenced to life without parole and to ensure that children are given meaningful opportunities to be released based on demonstrated growth and positive change. This momentum has also been fueled by the examples set by formerly incarcerated individuals who were once convicted of serious crimes as children, but who are now free, contribute positively to their communities, and do not pose a risk to public safety.
In addition to the rapid rate of change, legislation banning life without parole for children is notable for the geographic, political, and cultural diversity of states passing these reforms, as well as the bipartisan nature in which bills have passed, and the overwhelming support within state legislatures.
Currently, Nevada, Utah, Montana, Wyoming, Colorado, South Dakota, Kansas, Kentucky, Iowa, Texas, West Virginia, Vermont, Alaska, Hawaii, Delaware, Connecticut, and Massachusetts all ban life without parole sentences for children. Additionally California, Florida, New York, New Jersey, and the District of Columbia ban life without parole for children in nearly all cases.
It is also important to note that three additional states — Maine, New Mexico, and Rhode Island — have never imposed a life-without-parole sentence on a child. Several other states have not imposed the sentence on a child in the past five years, as states have moved away from this inappropriate sentence both in law and in practice.
September 14, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (13)
Attica, Attica, Attica, Attica, Attica ... lessons unlearned 45 years later
For film buffs, repeating the words Attica brings to mind a great scene in one of Al Pacino's greatest movies. But, for lots and lots of reasons, Attica and the riots and attacks that took place at this famous New York Prison in September 45 years ago should be remembers for so much more. But, as this new Daily Beast commentary highlights, it is not clear that we have really embraced enduring wisdom from that sad month in upstate New York. The commentary is headlined "Attica’s Lessons Went Unlearned: Our Prisons Are Still a Disgrace," and here is how it gets started:
Forty-five years ago today, on Sept. 13, 1971, nearly 1,300 men were waking up in the yard of the Attica Correctional Facility in upstate New York, eager to begin another long day of negotiations with state officials. After first failing to get help by writing to their state senators and pleading with the commissioner of corrections, these men had begun a protest against inhumane treatment four days earlier. On this rainy, damp morning, they were now hoping that they could finalize the list of improvements to the prison they had been negotiating, as well as secure a promise of no retaliation, so that they could bring their protest to a peaceful end.
Suddenly, however, the men looked up in horror to see a helicopter rising over the walls of the prison. Within minutes, it began blanketing the yard with a thick cloud of toxic tear gas. Then, as men began choking, gagging, and falling to the ground blinded by this noxious powder that now covered their skin and filled their lungs, a phalanx of nearly 600 heavily armed and gas-masked state police rushed into the prison and began shooting these men down. Then, over the next weeks and months, behind the closed doors of Attica, these men were brutally tortured.
Today, Sept. 13, 2016, hundreds of people who live behind bars are once again in jeopardy because, on this 45th anniversary of the Attica prison uprising of 1971, they too just launched a series of human-rights protests as well as work stoppages. Like those prisoners in upstate New York more than four decades ago, prisoners from Florida to Michigan have erupted because they too endure terrible overcrowding, insufficient food, too much time locked in solitary confinement, terrible medical care, and even bruises, broken bones, and, yes, death at the hands of abusive guards.
Their mistreatment is well documented. White guards in one Florida prison, for example, recently forced a black prisoner into a chair, and while choking, kicking and punching him, they screamed “Let’s beat this n——- and teach him a lesson.” What had he done? He had dropped a cookie on the floor. In another Florida correctional facility just a few years earlier, prisoner Darren Rainey died after officers punished him by forcing him to stand in a scalding 180-degree shower for two hours. In Michigan’s prisons, juveniles and women prisoners have been raped by correctional staff, suffered medical abuse and neglect, and have been forced to eat rotten and rat-ridden food.
And yet, just as it was overlooked in 1971, this inhumane treatment has been utterly ignored by prison authorities as well as by the politicians who have the power to do something to stop it. And so prisoners are once again protesting.
For those not familiar with the events in Attica two score and five years ago, the Marshall Project has this very modern review of events there,
Why Oklahoma is having arguably the most important vote in Campaign 2016 for those concerned about criminal justice reforms
Though I am thoroughly depressed by my Presidential choices in Campaign 2016 (and remain distressing undecided about whether and how I will cast a top-of-the-ticket vote), I am thoroughly excited by all the interesting (and unpredictable) criminal justice reform initiatives that are going to voters in lots of states this November. The highest-profile reform initiatives are probably those in five states seeking to legalize recreational marijuana and the handful of others seeking to legalize medical marijuana. But also getting plenty of attention are the death penalty repeal/reform/retain votes that will take place in California and Nebraska. But this new article from Fusion, headlined "Why Oklahoma activists are bringing criminal justice reforms directly to voters," helps spotlight why I think criminal justice reformers should really be paying extra attention to the Sooner State. Here are excerpts:
Oklahomans will vote in November on two proposals that could significantly reduce the number of people sent to prison in one of the most incarcerating states in the country. The measures, State Questions 780 and 781, would reclassify simple drug possession and property crimes under $1,000 from felonies to misdemeanors. Instead of prison time, people convicted of those crimes would receive drug treatment, mental health treatment, and rehabilitation programs that would be paid for by the savings from not locking them up.
Oklahoma has the second-highest incarceration rate in the country, after Louisiana, and its prisons are at 115% capacity. If the measures are approved by voters, they’re expected to reduce annual prison admissions by 25%, the rate of new inmates who are currently convicted of low-level property crimes and drug possession. Because it costs Oklahoma $15,000 to incarcerate someone and only $6,000 to treat them while they’re on probation, the state could save between $30 and $40 million a year. Reducing the number of felonies would also mean less people would struggle to find employment, housing, and education because of a permanent criminal record. One in 12 state residents is a convicted felon, according to The Oklahoman newspaper.
Legislators and Governor Mary Fallin have already taken steps to reform the state’s criminal justice system, including lowering mandatory minimum sentences for drug crimes and raising the threshold for some property felonies to $1,000. But Kris Steele, the former Republican Speaker of the State House and one of the referendums’ chief backers, said most legislators would be wary of being tarred as “soft on crime” if they passed broader reforms to drug laws.
“We want to sort of bypass the political gridlock that has set us back and give the people of Oklahoma a chance to weigh in on these issues,” he told me. “If we are successful in November, I truly believe the legislature will feel like the people have spoken and that it’s OK and probably even expected to take a smarter approach to criminal justice policy.” Of course, the opposite is also true. “If these state questions do not pass in November, it’s likely that the legislature will interpret that result as the people have spoken and we’re probably done talking about this issue for the next 10 years,” he said. “That keeps me up at night.”
That makes it a high-risk, high-reward proposition for criminal justice activists, who so far have been mostly focused on lobbying legislators. The only other state with criminal justice reform on the ballot in November is California, where voters will decide whether to support a measure backed by Gov. Jerry Brown that would allow thousands of inmates serving time for nonviolent charges to get early parole. (Californians and Nebraskans will also vote on referendums over ending the death penalty.)...
Nationally, polls show that Americans support reforms to reduce sentences for low-level criminals, especially those convicted of drug crimes. Steele said internal polling has shown Oklahomans are also supportive of the measures. The coalition of groups supporting the initiatives — known as Oklahomans for Criminal Justice Reform — includes the state branch of the American Civil Liberties Union, the conservative group Right on Crime, and several law enforcement leaders. So far, supporters of the initiatives have collected 110,000 signatures to get each of the measures on the ballot and held a series of town hall meetings around the state promoting them. Now they’re planning direct mail and TV ads in the two months until election day....
There doesn’t seem to be any organized group opposing the measures, although some sheriffs and prosecutors have spoken out against them. The proposals’ supporters want “to let everybody out of prison, and that’s not what’s healthy for the communities,” Greg Mashburn, the DA for Cleveland County, told The Norman Transcript. Steele said he’d encourage activists in other states to take reform initiatives straight to the voters. “It’s resulted in a very healthy conversation happening in our state” about the costs of mass incarceration, he said—one that wouldn’t have happened otherwise.
For so many reasons, I think this direct democracy vote in Oklahoma could have profound echoes throughout the nation, especially if "deep red" Oklahoma voters, while mostly voting for "law and order" Prez candidate Donald Trump, end up voting for significant sentencing reform in the state. Not only will approval of sentencing reforms by direct democracy likely make Oklahoma elected officials feel more comfortable moving forward with legislative reforms, I think it will send a very strong message to lots of political observers and policy advocates nationwide that the "Right on Crime" movement has real majority support among even conservative-minded voters.
Based on developments in many states and especially at the federal level, it still seems the reality that many politicians, especially older ones on both sides of the aisle, continue to believe quite strongly that vocally supporting significant criminal justice reforms risks a kind of political suicide. That said, the recent modern success that "deep red states like Texas and Georgia have experienced with "smart-on-crime" reforms has played a major role in giving the "Right on Crime" movement momentum, and that momentum has carried over in a number of other red and purple states. But at the federal law, persistent "soft-on-crime" political fears, especially among "old-guard" Democratic leaders like the Clintons and Senators Reid and Representative Pelosi, in my view largely explains why significant statutory sentencing reforms (other than the middling Fair Sentencing Act) have not gotten done throughout the Obama era.
Many people for sensible reasons think the fate of federal sentencing reforms now will turn on who is the next occupant in the Oval Office and who controls the Senate. But I really believe that if Oklahoma voters end up significantly supporting sentencing reform in their state (especially if Trump wins in OK by, say, a 55/40 vote but then sentencing reform is supported by a 60/40 vote), we all can and should become a lot more optimistic about even federal sentencing reforms over the next decade no matter who is in control in DC. For this reason (and others), I strongly believe that criminal-justice-reform-minded "big donors" — yes, I am talking to you Koch brothers and Mr. Soros — should think very seriously about devoting resources to this initiative campaign where a little extra campaign investment could go a very long way in fostering reform in a lot more places than just Oklahoma.
Highlighting polling reality that death penalty remains pretty popular on Left Coast
Ed Morrissey has this effective new commentary about the latest capital punishment polling under the heading "Hmmm: Blue California wants to keep its death penalty, 52/36." Here are excerpts (with a few links retained from the original):
California voters, among the most reliably liberal in the nation, have an opportunity to pass a repeal of the death penalty in November. Proposition 62 would commute the sentence of those on California’s Death Row to life without parole and require a higher percentage of inmate income to go to victim restitution. With opposition to the death penalty a big progressive goal, and with California’s execution process among the slowest and most frustrating in the nation, one would expect overwhelming support for Proposition 62.
Not so, according to a new poll from Survey USA. In fact, opposition to repeal leads by sixteen points, 36/52, and leads among almost all demographics. Majorities of both men (38/54) and women (33/50) oppose repeal. Voters under the age of 35 oppose it in plurality (40/45), but all other age groups oppose it by majorities and double-digit gaps. Black voters and Democrats support repeal, but not significantly enough to overcome overwhelming opposition among all other ethnic and partisan groups. Perhaps most tellingly, the only ideological demo to support repeal are those who identify as “very liberal” — and even then unimpressively at 52/32. Even the ultra-liberal Bay Area has a slight plurality opposed to repeal, 42/47....
The problem with the death penalty in California (besides the issues that form my general opposition to it) is that it’s almost purely academic. California hasn’t executed anyone since 2006, and Clarence Ray Allen had been on Death Row for more than 23 years at that point. That was the second-longest string for those who eventually got executed; Stanley “Tookie” Williams spent almost 25 years waiting for his execution, which finally came in December 2005. They are two of only 13 inmates executed since the reinstatement of the death penalty in 1978.
How many are actually on Death Row now? The state’s September 2016 lists 747 inmates, with sentencing dates from 1982 to this past May. Eight times more inmates have died of other causes (104) than of executions (13).
Death penalty proponents will also have a referendum on the November ballot. Proposition 66 would offer several reforms to speed up the execution process, including expediting all appeals to the state Supreme Court and having attorneys assigned to death-penalty appeals immediately. Presumably this will find more support than Proposition 62, although SUSA didn’t poll on it. Will Californians take steps to fix its capital-punishment system — or be satisfied with a Death Row that just waits inmates to death?
September 13, 2016
Eleventh Circuit judges discuss guidelines and vagueness at great length after denying en banc review in Matchett
As regular readers should recall (and as I like to remind everyone), in this post right after the US Supreme Court ruled that a key clause of the Armed Career Criminal Act violated "the Constitution’s prohibition of vague criminal laws" in Johnson v. United States, 133 S. Ct. 2551 (2015) (available here), I flagged the question of how Johnson would impact application of the (now older, pre-reform version) career-offender guideline of the US Sentencing Guidelines. As I have noted before, the Justice Department has consistently conceded Johnson-based constitutional problems with that guideline, even though there was some prior rulings in some circuits that the federal guidelines could not be attacked based on traditional void-for-vagueness doctrines.
In the last year, most of the circuit courts, perhaps moved a lot by DOJ 's view, have come to rule that vagueness challenges to the guidelines are proper and have concluded that there are Johnson-based constitutional problems with sentences based on the old career-offender guideline. But, as noted in this post last September, an Eleventh Circuit panel in US v. Matchett, 802 F.3d 1185 (11th Cir. 2015) (available here), ruled that Johnson and its vagueness problem just do not apply to advisory sentencing guidelines.
As I have previously noted, I consider the ruling Matchett suspect; but an amicus brief I helped put together urging en banc review in Matchett was not sufficiently convincing to that court. Today, as revealed here, the Eleventh Circuit announced that a majority of its members voters against considering this issue en banc. (For practical reasons, even though I disagree on the merits, this decision now makes sense: as blogged here this past June, we now have the ultimate judicial authority on this issue poised to weigh in:the final Supreme Court order list of last Term included a grant of certiorari in Beckles v. United States, No. 15-8544, which will explore whetherJohnson's constitutional holding applies to the residual clause in the older, pre-reform version of the career offender guideline.)
The actual order denying en banc review is only one-sentence long. But following the order comes 80+ pages of fascinating concurring and dissenting opinions that will surely intrigue any and everyone closely following the legal and practical issues that Beckles implicates. Highly recommended reading for all sentencing fans and law nerds.
Fascinating pictures of "What It Looks Like to Be Behind Bars in Four Different Countries"
The quoted portion of this post title is drawn from the headline of this new Slate article providing something of a sneak-peak into what looks likely to be a very interesting book to look at. Here is how the Slate article begins (though everyone should really click through to see some pictures that strike me as fascinating in so many ways):
After photographing civil servants in eight countries across five continents for his book, Bureaucratics, Jan Banning thought looking at criminal justice systems around the world seemed like a logical next step. In his new book, Law & Order: The World of Criminal Justice, which will be released in the United States this fall, the Dutch photographer brings readers up close to prisons, police, and courts in Colombia, France, Uganda, and the United States.
“I’m interested in these aspects of society that are vital but not necessarily considered to be picturesque,” he said. “Basically, it’s an attempt to visually cope with the question of how we handle crime. I think it always makes tremendous sense to compare different societies as I’ve done with Bureaucratics because, of course, in comparison, the character of a specific society comes out.”
After discussing which countries to focus on with the Max Planck Institute for Foreign and International Criminal Law, Banning started his investigation with a trip to Uganda in 2010. In about two weeks, he was given access to a handful of prisons, and on subsequent visits he was able to visit 10 prisons of various security levels. Even in maximum security establishments, his guide tended to be just a single unarmed warden or assistant, which was indicative of environments he found to be “rather friendly and rather humane.”
“In the beginning, I was a bit suspicious. I thought, ‘OK, maybe this is a PR exercise and they’re just doing this for me.’ But I noticed it in all 10 prisons I was in, and some were tiny local prisons where you wouldn’t expect the personnel to have any idea of PR. So I thought that was honest,” he said. “Of course, the prisons there are still not a place where you’d love to be. They’re overcrowded, half the prison population hasn’t been on trial, and some have been sitting there without charges for five or six years.”
Uganda’s open system allowed him to get some of the more colorful photographs in the book. In the United States, his visits were much more restricted. The prisons themselves, meanwhile, tended to be a lot less visually interesting than those in Uganda, but Banning said he embraced the sterility in his photographs and thought it was important to communicate it in “a fair and relevant way.”
"As Marijuana Prohibition Winds Down, What Will Control Freaks Ban Next?"
The title of this post is the enjoyably provocative headline of this notable new Reason piece authored J.D. Tuccille. Here are some excerpts which appeal to my libertarian instincts while also highlighting why I think much more that just the wicked weed is implicated in movements to reform modern marijuana laws:
As Prohibition, America's first national effort to penalize people for taking pleasure in imbibing psychoactive substances, became increasingly unpopular and widely flouted at the end of the 1920s, an assistant commissioner for the United States Bureau of Prohibition cooked up a successor project. Harry Anslinger left his old gig and took on the role of commissioner of the new Federal Bureau of Narcotics — a predecessor agency to the DEA — and helped launch the national crusade against marijuana. It was a newly demonized intoxicant to give purpose to the power and personnel that had been assembled for the faltering crusade against booze.
"This propitious marriage of state power and moral suasion would yield a dramatic expansion of federal policing and an increase of state and local policing in the quasi-military sphere of crime control," Harvard historian Lisa McGirr writes in her 2015 book, The War on Alcohol: Prohibition and the Rise of the American State. "The war on alcohol and the war on drugs were symbiotic campaigns," McGirr told Reason in an interview. "Those two campaigns emerged together, [and] they had the same shared...logic. Many of the same individuals were involved in both campaigns."
McGirr sees the "federal penal state" of intrusive policing and mass incarceration that arose during Prohibition as the result of the combined efforts of old-time religious scolds who disapproved of alcohol use and Progressives who were eager to use state power to address what they saw as social ills. Together they nationalized what had traditionally been an individual, local, or state concern, gave the government unprecedented power to regulate people's lives, and escalated their efforts as people refused to submit.
But even as it was a consequence of growing state power, Prohibition also helped to normalize the idea that the federal government could and should boss us around. "Faced with the unintended consequences of Prohibition, many men and women began to rethink their commitments to the war on alcohol, but they did not altogether reject the state's right to police and punish the use of other recreational narcotics," McGirr adds in her book.
People also grew accustomed to an activist and intrusive state overall, paving the way for the New Deal and the regulatory state of today. A massive government apparatus, once created, can be used for any purpose its masters desire. "War is the health of the state," Randolph Bourne famously noted. But war doesn't necessarily require ships and planes launched against other nations; it can be waged against a government's own people by police who are empowered by the law to see enemies behind every door.
Then as now, the law was unevenly enforced. If you were a New York socialite during Prohibition, you could continue to drink illicit booze at parties or in speakeasies in relative safety since you weren't considered part of a "problem" population and could push back against authorities — urban ethnics were deliberately targeted for harsher treatment when they broke the law, as were rural blacks. Likewise, Malia Obama was at little risk of more than a parental tongue-lashing when she was caught smoking a joint last month while young people — African-Americans, in particular — whose fathers don't reside in the White House often suffer nastier consequences in the absence of helpful political connections.
Even for booze, the double standard for enforcement remains. While mayor of New York City, national nanny Michael Bloomberg ceaselessly sought to mold and scold his own suffering subjects as he broke the law himself to quaff wine in public. "They were behaving," he said of his friends who were given a pass by police. He's not one of those people, you know, and so he and his buddies shouldn't have to obey rules meant to rein in "problem" groups.
So the desire to control remains in place, nurtured by policy-makers and their supporters who never intend themselves to be the target of enforcement. That desire remains even as public pushback causes yet another prohibition to stumble and fall. Prohibition has its own logic — of control and power — that has very little to do with the specific prohibition at any given moment. Those who would mold the world to suit their vision see no reason to back off their efforts, they've created a vast bureaucracy of enforcers who make their living pushing us around, and they've accustomed us to a state that pokes and prods us at every turn.
So celebrate the relegalization of marijuana for sure. Just don't convince yourself that it means we've seen the end of prohibition, or of the abuses that intrusive government brings. The next big prohibition might be kratom, or another drug, or a grab-bag of substances and activities of which our rulers disapprove. What is banned matters less than the fact of the ban and the apparatus that keeps the ban in place. Winning doesn't mean ending a prohibition, it means disempowering the prohibitionists.
In addition to providing an amusing post title, this commentary inspires me to remind readers once again that one way to keep up with marijuana prohibition winding down is to regularly read my Marijuana Law, Policy and Reform. There you will find these recent posts, among many, many others:
- Crimmigration and cannabis: "Marijuana Is Legal in Colorado — But Only If You're a U.S. Citizen"
- "Study: Can marijuana improve PTSD symptoms for veterans?"
- New medical marijuana regulations create rift among California's marijuana policy reform advocates
- New research indicates that daily marijuana users are less fat
Proving punitiveness does not go out of style, prison populations ticking up even in states with recent track record of declines
This astute new Wall Street Journal article, headlined "Inmate Populations Rise Again in Some States: Opiate addiction and high-profile crimes spur legislators to toughen drug and parole policies," reinforces my sense that the era of mass incarceration is a very long way from being over. Here are snippet from the piece:
An epidemic of opiate addiction and a handful of high-profile crimes have set back efforts by some states to restrain their prison populations, revealing cracks ina bipartisan movement to reduce reliance on incarceration.
In Arkansas, Republican and Democratic lawmakers in 2011 passed a landmark law to reduce harsh drug sentences, as a way to curb costs from overcrowded prisons. The prison population dropped 10% in two years. Then, in 2013, a man who had been released from prison and arrested several times while on parole carjacked and fatally shot an 18-year-old man in Little Rock.
In response, state officials tightened parole policies, and authorities put parolees back behind bars for violating the terms of their release as fast as they could, said Dina Tyler, a state prison official at the time who is now a deputy director at the agency overseeing parole in Arkansas. “It was a natural reaction because something bad happened, and we don’t want it to happen again, so we’ll scoop them all up,” said Ms. Tyler.
The result: Arkansas’s prisons are more crowded than they were before the 2011 legislation. As of late August, the number of prisoners had risen to 18,243, a 25% increase from 2012. Similar reversals have occurred in a handful of other states in recent years, exposing the fragility of an effort to curb prison growth and focus resources on keeping offenders from returning to crime. “It just takes one incident to get things tracking in a different direction,” said James Austin, president of the JFA Institute, a criminal-justice research group that works for Arkansas and other states to forecast prison-population trends, referring to the 2013 Little Rock murder.
A review of prison data from 2007 to 2014, the most recent year analyzed by the U.S. Justice Department’s research arm, shows that at least five states — Arkansas, Hawaii, Kentucky, New Hampshire and Ohio — saw their incarcerated populations fall or stabilize after passing criminal-justice legislation only to see them rise again. Incarceration rates also rebounded in most of those states, and in others that passed laws targeting prison growth, including Arizona and Wisconsin, after dropping initially.
Overall, the percentage of American adults under correctional supervision declined 13% from 2007 to 2014, according to a Pew Charitable Trusts analysis of federal Bureau of Justice statistics. Prison rates dropped in most of the roughly 30 states that passed laws to curtail prison growth in that time, BJS data show. Even in states where rates increased, state officials and criminal-justice experts say such laws have helped slow prison growth, averting millions of dollars in prison costs.
Still, efforts to curtail prison growth have been hampered by uneven implementation of new laws, state officials say. Elected judges in Kentucky and Ohio, for instance, have shown a reluctance to cut sentences and divert offenders into treatment rather than sending them to prison, state officials said. Parole officials haven’t granted early release as often as lawmakers had hoped they would, they said.
The increase in opiate use also has played a role. In Kentucky, the number of jail and prison inmates climbed back to a near record this summer, the state corrections department said, after a drop following a 2011 law. That measure reduced prison time for drug possession, routing the savings into drug treatment, and linked recently released prisoners to community resources. John Tilley, Kentucky’s justice and public-safety secretary, who sponsored the overhaul as a state legislator, attributed the increase to offenders returning to prison in higher numbers and drug arrests fueled by the “heroin scourge.” Last year, Kentucky ratcheted up penalties for trafficking heroin and created a new offense for importing drugs across state lines....
The prison population in Ohio dipped after lawmakers overhauled state sentencing laws in 2011, but it has rebounded this year to nearly 51,000, just shy of the record, according to state figures. “We’ve done all these things, but because of the spike in heroin, we have this uptick,” said Sen. Bill Seitz, a Republican who has led an effort to halt prison growth.
Civil-liberties advocates said scores of new penalties in Ohio have contributed to the rise in prison population. This year, the Legislature made it easier to prosecute people for heroin-trafficking, for example, reducing the threshold for the crime from 250 grams to 100 grams. In May, after staff at the Cincinnati Zoo shot a gorilla to save a boy who had fallen into the animal’s enclosure, legislators talked a colleague out of proposing a new crime for parents who let their child wander into a situation that requires the killing of an endangered animal, Sen. Seitz said. “We try to kindly tell our colleagues we cannot continue to make everything a crime or increase penalties on everything that already is a crime without further contributing to this overcrowding,” Mr. Seitz said.
Does anyone want to speculate about SCOTUS politics if Prez Obama had nominated, say, Judge Ketanji Brown Jackson?
I am prompted to prompt the question in the title of this post after review of this interesting Washington Post article, headlined "Did Obama squander an opportunity by nominating Merrick Garland?". Here are a few notable excerpts from the lengthy piece:
No Democratic Senate candidates are talking about Garland in paid television ads. No one mentioned Garland during the Democratic National Convention in July, including Barack Obama.
Hillary Clinton has not committed to re-nominate Garland if she’s elected. While she talks about the Supreme Court, she almost never talks about him.
Some Democrats privately fear that Obama blew an opportunity to help re-activate the coalition that elected him twice by not picking a more progressive nominee — especially a minority candidate — to replace the late Antonin Scalia. Had Obama nominated someone who really ginned up the Democratic base, perhaps Clinton and the party would have more whole-heartedly embraced him or her....
The National Organization for Women signed onto an open letter urging Obama to appoint an African American woman to the court after Scalia died. When Garland was announced, the group expressed concern that he is “more or less a blank slate” on core women’s issues like reproductive rights.
NOW President Terry O'Neill wants the Senate to confirm Garland but she also thinks about how different the dynamic might be right now had the president gone with a more progressive black woman instead of a 63-year-old moderate white man. “I’m not going to say there wasn’t some disappointment,” she said in an interview last night. “I am very positive that the progressive community would be extremely active in promoting a more left-leaning appointment.”
O’Neill posited that an African American woman might have provided a clearer contrast. “Suppose he had nominated an African American woman,” she said. “No matter how moderate she might be, Republicans would say she’s way too out there and way too radical. The same way they talked about President Obama. … I don’t think you can eliminate race from understanding what these senators are doing. There’s no white president that’s ever been treated so disrespectfully.”
She lamented the paucity of media coverage about the vacancy. “Any African American woman who might have been nominated would have been viciously attacked,” O’Neill added. “It’s possible, if those vicious attacks would have happened, then the American public would have been much better informed of the outrageousness of what the Republicans are doing.”
Many of the same progressives who are not enthusiastic about Clinton are also not enthusiastic about Garland. Bernie Sanders said this spring as he campaigned for the Democratic nomination that he would ask Obama to withdraw Garland if he got elected so he could pick someone more liberal.
“We saw some of the highest grassroots energy in our eight year history in the run up to the president's Supreme Court nomination, and when the choice was Merrick Garland that energy completely plummeted,” said Adam Green, co-founder of the Progressive Change Campaign Committee.
Leaders in the African American community have called for a vote on Garland, but a lot of the key groups were also less than thrilled with his selection. Other liberal organizations like Democracy for America, which was founded by Howard Dean, said when Garland was nominated that it was “deeply disappointing that President Obama failed to use this opportunity to add the voice of another progressive woman of color to the Supreme Court.”
As readers may recall, the only woman of color who was seriously vetted for this open SCOTUS spot was US District Judge Ketanji Brown Jackson. I thought back in March and continue to think today that the politics around SCOTUS would be much different if Prez Obama made a ground-breaking rather than just a moderate pick. In addition, as I highlighted in this post in February, GOP House Speaker Paul Ryan spoke in glowing terms abut Ketanji Brown Jackson at her confirmation hearing to become a US District Judge: as he put it, "she is clearly qualified. But it bears repeating just how qualified she is.... Now, our politics may differ, but my praise for Ketanji's intellect, for her character, for her integrity, it is unequivocal."
I think it quite likely that, had Prez Obama nominated Judge Brown Jackson, we would be seeing Democratic Senate candidates talking about her in TV ads. I am certain that a number of folks would have mentioned her during the Democratic National Convention in July, and I suspect Hillary Clinton would commit to re-nominate her if she’s elected. Speculating even further, I imagine lots of Democratic senators and House members would be pressing Speaker Ryan to voice support for giving Judge Brown Jackson at least a hearing. And, to really go for it, I could even imagine Colin Kaepernick saying, when asked when he will stand again for the National Anthem, that he will get off his knee if the US Senate moves forward on the SCOTUS nomination of Judge Brown Jackson.
Prior related posts on new SCOTUS nominee possibilities:
- Off the cuff (bad?) SCOTUS advice for Prez Obama: nominate current AG Loretta Lynch tomorrow
- Prognosticating SCOTUS possibilities in light of existing politics
- New SCOTUS short-list name to excite sentencing fans: Judge Ketanji Brown Jackson
- Can readers help discount my fears that sexism and racism account, at least in some small part, for why conservatives are belittling the intellect of Judge Ketanji Brown Jackson?
- The latest SCOTUSblog analysis of the top contenders for SCOTUS nomination
- After a month, Prez Obama makes ("consensus"?) pick of DC Circuit Chief Judge Merrick Garland for SCOTUS opening
September 12, 2016
Former GOP Ohio Attorney General explains why he is convinced "the death penalty is just not worth it any more"
Over the weekend my local paper published this capital commentary by Jim Petro, a widely-respected local Republican leader who served as Ohio Attorney General from 2003 to 2007. Here are excerpts:
As Ohio attorney general, I oversaw 18 executions in accordance with Ohio law. As a state legislator before that, I helped write Ohio’s current death-penalty law. We thought maybe it would be a deterrent. Maybe the death penalty would provide cost savings to Ohio. What I know now is that we were wrong. What I am coming to understand is just how wrong we were, and what needs to be done to fix our mistake.
My direct experience with executions makes me more than a mere spectator as Ohio continues to struggle with capital punishment. Since I left office in 2007, I’ve been following developments and watching those most deeply engaged with it.
Earlier this week, Ohioans to Stop Executions (OTSE) released its third report in as many years, providing perspectives on the status of Ohio’s death penalty. I am in agreement with the report, “A Relic of the Past: Ohio’s Dwindling Death Penalty,” which details a continuing decline in executions and new death sentences in Ohio while highlighting the disparities between counties that prosecute death cases.
In 2015, only one new death sentence was handed down. Cuyahoga and Summit counties, two jurisdictions responsible for more than 25 percent of death sentences, initiated zero new death penalty cases last year. In fact, new death sentences overall were down for the fourth year in a row. There were three in 2014, four in 2013, and five in 2012.
It has become clear to me that what matters most is the personal predilections of a county prosecutor. Consider Cuyahoga County, which until 2012 was seeking the death penalty in dozens of cases a year. Last year Cuyahoga County sought none. Crime rates did not plunge. There was a new prosecutor. On the other hand, consider Trumbull County, with one of the lowest homicide rates of Ohio counties which sentence people to death. Trumbull County leads the state with the highest death-sentence-per-homicide rate. Why? Again, the personal preference of the county prosecutor matters most.
The new OTSE report addresses many other issues, including 13 wrongful convictions and exonerations in Ohio death cases. After serving as attorney general, my chief concern was that our state has sentenced individuals to death or lengthy prison sentences for crimes they did not commit....
Most urgently in my view, the new report catalogs the reluctance of Ohio legislators to consider most of the 56 recommendations made in 2014 by the Supreme Court Joint Task Force on the Administration of Ohio’s Death Penalty. The charge to that task force was to find ways to make Ohio’s death penalty more fair and accurate.
Only a handful of the recommendations have been considered, and not those which would make the biggest difference. For example, the recommendation to narrow the felony murder rule would address much of Ohio’s disparity in death sentencing. Thirteen of the recommendations, individually and collectively, would go a long way toward preventing wrongful convictions. In failing to act, legislators effectively maintain the status quo, which is a broken system that currently serves only the interest of Ohio prosecutors. That is a grave mistake.
Another grave mistake is the terrible suggestion by the director of the Ohio Prosecuting Attorneys Association that Ohio adopt the gas chamber to conduct executions. I hope Gov. John Kasich and all Ohio legislators soundly reject that notion. It is offensive to the human experience and has no place in our great state.
I am convinced that the death penalty is just not worth it any more, and I don’t think it can be fixed. Starting in January 2017, 28 Ohioans have execution dates. If we’re going to have the death penalty, then it must not be carried out until the legislature implements the task force’s reforms intended to ensure fairness and accuracy.
"Does the Supreme Court still believe in prosecutorial discretion?"
The question in the title of this post is the first line in this terrific new commentary by Randall Eliason at his Sidebars blog under the title "White Collar Crime, Prosecutorial Discretion, and the Supreme Court." I recommend everyone (and not just white-collar fans) to read the entire piece, and here is a taste of the astute discussion seeking to answer the question posed:
Prosecutorial discretion – the power to decide whether to bring criminal charges, who to charge, what crimes to charge, and how ultimately to resolve the case – is a fundamental component of the criminal justice system. The legislature enacts the laws but the executive branch enforces them, which includes making judgments about when and how to bring a criminal case.
On the macro level, this means setting national and local law enforcement priorities and making decisions about the deployment of finite prosecutorial resources. Different administrations at different times have declared areas such as health care fraud, narcotics, illegal immigration, or terrorism to be top priorities and have allocated resources accordingly. Such decisions necessarily mean other areas will not receive as much attention; a dollar spent fighting terrorism is a dollar that can’t be spent investigating mortgage fraud.
On the micro level, prosecutorial discretion involves deciding whether to pursue criminal charges in a given case and what charges to pursue. Factors such as the nature of the offense, strength of the evidence, the nature and extent of any harm, adequacy of other potential remedies, any mitigating circumstances or remedial efforts by the accused, and prosecutorial resources and priorities all may come into play....
In [a series of] recent [SCOTUS] cases, when faced with the interpretation of white collar crimes such as bribery, honest services fraud, and obstruction of justice, the Court’s approach has been to interpret the statutes narrowly and consequently to remove charging discretion from federal prosecutors....
[T]he Court may believe it needs to interpret criminal statutes more narrowly because it cannot always trust prosecutors to exercise sound judgment when enforcing broadly-written statutes. As Justice Kennedy suggested during the Yates argument, it may be that the Court no longer thinks of prosecutorial discretion as a viable concept.
Of course, some critics of federal prosecutors will welcome this development and suggest it is long overdue. And some will point out that, for prosecutors, this may be considered a self-inflicted wound. The charging decisions in cases like Yates and Bond in particular may be what led the Justices openly to question whether prosecutors should continue to be entrusted with the same degree of discretion.
But it would be unfortunate if the Justices truly come to believe they cannot rely on prosecutors to exercise sound judgment in charging decisions. One can always argue about the merits of particular cases, but overall our system of broadly-written statutes enforced by the sound exercise of prosecutorial discretion has worked pretty well. If the Court continues to chip away at those statutes due to concerns about controlling prosecutors, it will continue to create safe harbors for some conduct that is clearly criminal.
I could write a series of law review articles about all the interesting and important modern issues that this commentary raises. With a particular focus on sentencing issues, I think it is not a coincidence that we are seeing the trend identified here at the same time there are widespread concerns about mass incarceration, the severity of some sentences for nonviolent offenders and the spread of significant collateral consequences for all convicted persons. Also, given that states can (and often will) prosecute any serious criminal activity not clearly covered by federal statutes, I really do not think we need to worry too much about narrow interpretations of broad federal criminal statutes.
Spotlighting the import, impact and new debates over prosecutorial control of charging juves as adults
The Atlantic has this effective new article digging deeply into the role (and possible regulation) of prosecutors in the decision to try certain juvenile defendants in adult court. (As practioners know, the decision to bind a juvenile over to adult court is often essentially a sentencing decision because the decision will often dramatically impact the maximum and minimum sentences a juvenile defendant will face.) The lengthy piece carries this lengthy headline: "Treating Young Offenders Like Adults Is Bad Parenting: As one state wrestles with the effects of trying juvenile defendants in adult courts, others reconsider the practice." I recommend the piece in full, and here are excerpts:
In 2000, voters in California approved Proposition 21, a ballot measure that, among other things, gave district attorneys the right to “direct file” juvenile offenders who committed felonies and other serious crimes like murder and sex offenses. Direct filing gives the D.A. alone the power to decide whether or not a young offender should be tried as an adult in an adult court instead of in the juvenile-justice system. In all, 15 states and Washington, D.C., have such a mechanism in place. In California, the D.A. has to make that decision within 48 hours of an arrest and usually only has the police report to guide his or her decision. In 2014, 393 young people were direct filed and tried in state adult courts. The state attorney general’s 2015 juvenile-justice report states that 88 percent of juveniles tried in adult court were convicted. Call this parenting style the tough-love approach.
Deciding to direct file a young person circumvents the role of a judge, who would otherwise conduct a “fitness hearing” to determine where an offending youth should be tried. It’s like one parent quickly and unilaterally deciding on a child’s punishment without first talking it over with the other parent. In some cases, the second parent might stand firmly behind the first, but in others, being eliminated from the decision can lead to feelings of disrespect, accusations of power-hoarding, and the unearthing of buried tensions in the relationship.
“With direct file, there’s no opportunity for it to go before a judge to make that very important decision on whether or not a child should be prosecuted as an adult,” said Nisha Ajmani, a lawyer and program manager at the Center on Juvenile and Criminal Justice who opposes the practice. She works with lawyers and young clients on direct-file cases or to prepare for fitness hearings.
But the district attorney has an incentive to eschew fitness hearings, since in California they are exhaustive and can take months. The hearings involve evaluating the young person on five criteria: the degree of criminal sophistication exhibited; whether rehabilitation is possible before the end of the juvenile court’s jurisdiction, at age 21; the delinquency history; the success of any previous attempts at rehabilitation by the juvenile court; and the circumstances and gravity of the offense that’s alleged.
California has worked in earnest in recent years to provide judges more guidance on those fitness criteria. Now the state also emphasizes factors such as the offender’s home and family environment growing up, exposure to violence and trauma, mental and emotional development, and circumstances outside of the seriousness of the crime that might be relevant to the decision to prosecute in an adult court. Call this parenting style the holistic approach. “A judge should really be the party making that decision after a fair, thorough, and neutral process,” Ajmani said, warning that district attorneys subject to elections often want to appear tough on crime to ensure their political viability. “It shouldn’t be the prosecutor who only has 48 hours to make that decision and is inherently biased to begin with.”
“The absolute reality is that we, as prosecutors, have an immense amount of power in California,” said Patrick McGrath, the Yuba County district attorney. “In some respects, I think almost everybody would agree that the extent of power that we have over charging and case disposition probably really exceeds the amount of power that a judge has.” But McGrath doesn’t think that power is misplaced: He employs direct file in his county and supports its basic premise.
September 11, 2016
Is Ohio again about to pioneer a new execution method?
The question in the title of this post is prompted by this Columbus Dispatch article from last week headlined "Ohio looks at nitrogen as a new execution method." Long-time readers may recall, from this post back in 2009, that Ohio was the first state to switch to a one-drug lethal injection protocol after it botch an execution. And, as this new article explains, new problems with lethal injection plans may prompt Ohio to become an execution pioneer again. Here are the details:
Ohio might consider adding nitrogen gas as a new execution method because of problems securing lethal injection drugs.
There have been no executions in the state for 2½ years, largely because of lawsuits and difficulty obtaining drugs for lethal injection. Beginning in January, there are 28 convicted killers with execution dates scheduled over four years.
John Murphy, executive director of the Ohio Prosecuting Attorneys Association, said today lethal injection is "stalled" and it's time for a change. Prosecutors have long been strong supporters of Ohio's death penalty law. "I think the legislature ought to recommend another method of execution," Murphy said in an interview. He recommends switching to nitrogen gas, a method he called "humane and reasonably inexpensive."
Nitrogen gas, pumped into an air-tight chamber, produces asphyxiation by a lack of oxygen in the blood. It has not been used for executions, although Oklahoma adopted it as a backup method. The sponsor of the Oklahoma law called it "foolproof." People occasionally die accidentally from nitrogen asphyxiation. Deep-sea divers sometimes suffer from a form of it, producing an effect often described as euphoric. The gas is widely available and inexpensive.
JoEllen Smith, spokeswoman for the Ohio Department of Rehabilitation and Correction, said the agency "continues to seek all legal means to obtain the drugs necessary to carry out court-ordered executions." State Rep. Jim Butler, R-Oakwood, chairman of the House Judiciary Committee, said, "It's good to look at alternative methods that are humane. That's something we should definitely do." But Butler added, "One problem is if it's something that's not been tried before, you need to vet it to make sure it's appropriate. It's certainly going to be tested in the court system."
Other states have moved ahead with alternatives. Tennessee permits use of the electric chair, Utah allows the firing squad, and Oklahoma allows nitrogen gas.
Dr. Jonathan Groner, a professor of clinical surgery at Ohio State University College of Medicine, said using nitrogen gas could be "dangerous and impractical."
"You and I are breathing 78 percent nitrogen right now," he said. "It's not a poison. It's an inert gas." When nitrogen is introduced, oxygen is pushed out of the bloodstream, causing potentially painful suffocation, Groner said. "I would challenge that it's foolproof. We've heard that before," he said.
NAAUSA sends letter to House members explaining its opposition of federal statutory sentencing reforms
As detailed via some prior posts linked below, the National Association of Assistant US Attorneys (NAAUSA) has been one of the most consistent and vocal opponents of federal statutory sentencing reforms that have been considered in Congress in recent years. And this group has now just posted here via its website a lengthy letter authored by Steven Cook, NAAUSA's President, addressed to members of the US House of Representatives. Here is how the letter begins, its major headings, and its concluding paragraph:
As the voice of career federal prosecutors across the country, we write to make clear our strong and unequivocal opposition to the Sentencing Reform Act of 2015, H.R. 3713. This legislation, and other bills being advanced under the euphemistic label of criminal justice and prison or sentencing “reform,” will seriously undermine our ability to disrupt and dismantle violent gangs, domestic and international drug trafficking organizations, weaken federal firearm laws, and release thousands of violent convicted felons from federal prison. To explain our concern, we would like to make three points.
1. The federal criminal justice system is not broken. ...
2. Over the last decade the federal criminal justice system has been weakened or “reformed” in significant ways, discounting the need for any further reform. ...
3. The historic reduction in violent crime rates has begun to reverse course and in many cities across the country violent crime is skyrocketing. At the same time, we are suffering from the worst opioid epidemic in the history of our Nation. Now is the wrong time to remove or further weaken the very tools that federal prosecutors and law enforcement officers need to stem the tide of rising crime and prosecute domestic and international drug traffickers, violent gangs, and other violent offenders. ...
In conclusion, the federal criminal justice system has been significantly weakened over the last decade, the federal prison population continues to drop, homicide and violent crime rates are spiraling up across the country, and we are in the grip of the worst heroin and opioid epidemic in the history of our Nation. Now is the wrong time to remove or weaken the last tools available to federal prosecutors and law enforcement agents to combat these problems.
Some prior related posts highlighting some NAAUSA advocacy:
- "Law Enforcement Lobby Quietly Tries To Kill Sentencing Reform"
- Federal prosecutors group propounds "The Dangerous Myths of Drug Sentencing 'Reform'"
- Sentencing reform group propounds "The Dangerous Myths of NAAUSA"
- "Prosecutors Rally Against Sentencing Reform, Say Build More Prisons"
- NAAUSA sends letter opposing federal sentencing reforms on behalf of forty former federal officials
Effective review of notable increase in murders in many cities in 2015 and thereafter
The New York Times has this effective new piece reviewing murder rates and realities in 2015 under the headlne "Murder Rates Rose in a Quarter of the Nation’s 100 Largest Cities." The piece includes lots of interesting graphics and analysis, and here are excerpts:
Murder rates rose significantly in 25 of the nation’s 100 largest cities last year, according to an analysis by The New York Times of new data compiled from individual police departments. The findings confirm a trend that was tracked recently in a study published by the National Institute of Justice. “The homicide increase in the nation’s large cities was real and nearly unprecedented,” wrote the study’s author, Richard Rosenfeld, a criminology professor at the University of Missouri-St. Louis who explored homicide data in 56 large American cities.
In the Times analysis, half of the increase came from just seven cities — Baltimore, Chicago, Cleveland, Houston, Milwaukee, Nashville and Washington. Chicago had the most homicides — 488 in 2015 — far more than the 352 in New York City, which has three times as many people. Baltimore had the largest increase — 133 more than 2014 — and the second-highest rate in 2015, after St. Louis, which had 59 homicides per 100,000 residents.
The number of cities where rates rose significantly was the largest since the height of violent crime in the early 1990s.
Donald J. Trump, the Republican presidential candidate, has said that crime is “out of control” and that decades of progress are now being reversed. But the Times analysis shows that the rise in homicides is much more nuanced; while violence is up in a number of cities, it’s not soaring across the nation. Nationally, homicide rates are still much lower than they were in the 1990s, even among the seven cities that drove last year’s increase....
Nationwide, nearly 6,700 homicides were reported in the 100 largest cities in 2015, about 950 more than the year before. About half of the rise — 480 of the 950 — occurred in seven cities. The poverty rate in these cities is higher than the national average.
At least three of these cities have also been embroiled in protests after police-involved deaths of black males, like Freddie Gray in Baltimore, Laquan McDonald in Chicago and Tamir Rice in Cleveland. In his study, Dr. Rosenfeld said that rising crime might be linked to less aggressive policing that resulted from protests of high-profile police killings of African-Americans. But he said this hypothesis, a version of the so-called Ferguson effect, which has spurred heated debate among lawmakers and criminologists, must be further evaluated.
There is no consensus on what caused the recent spike, and each city appears to have unique circumstances contributing to the uptick. “Cities are obviously heterogeneous,” said Robert Sampson, a Harvard professor who is an expert on crime trends. “There is tremendous variation across the largest cities in basic features such as demographic composition, the concentration of poverty, and segregation that relate to city-level differences in rates of violence.”
Many crime experts warn against reading too much into recent statistics. In fact, murder rates remained largely unchanged in 70 cities, and decreased significantly in five. “Even if the uptick continues in some cities, I doubt the pattern will become universal,” Dr. Sampson said....
Alarming levels of violence have become the norm in some of [Chicago's poorest] neighborhoods. While murder rates have continued to decline in the nation’s two largest cities — New York and Los Angeles — Chicago’s has stalled in the last decade. At its peak in the 1990s, New York’s homicide rate was more than seven times as high as it is now.
In Chicago, however, the landscape appears to be worsening, with killings up more than 45 percent so far this year. In August, Chicago had its deadliest month in about 20 years with at least 90 murders — and more homicides so far this year than New York and Los Angeles combined. Areas with “long-standing conditions of alienation, hopelessness, poverty and lack of opportunities” also have the greatest distrust of the police and the greatest complaints of police abuse, said Craig Futterman, a University of Chicago law professor who directs a civil rights and police accountability project at the law school. That means homicides go unsolved, perpetuating a dangerous cycle because people committing the crimes are still out there. In some neighborhoods, the city’s clearance rate, the percentage of homicides in which the police arrest or identify a suspect, is less than 20 percent, he said.
Dr. Futterman said the city’s problems were intensified in recent years by the closing of more than 50 public schools in 2013, the dismantling of public housing throughout the 2000s, and the federal government’s successful prosecution of big gang leaders, which destabilized gang hierarchies, territories and illegal drug markets. While there was violence before, ironically, crime was more contained and easier to police than it is now, he said.
In 2015, Baltimore’s murder rate not only increased the most among the 100 top cities, it also reached a historic high of 55 homicides per 100,000 residents. Its previous record high was in 1993, when the rate was 48. Some experts attribute the sudden spike in violence largely to a flood of black-market opiates looted from pharmacies during riots in April 2015. The death of Freddie Gray, a young black man who sustained a fatal spinal cord injury in police custody, had set off the city’s worst riots since the death of the Rev. Dr. Martin Luther King Jr.
During the riots, nearly 315,000 doses of drugs were stolen from 27 pharmacies and two methadone clinics, according to the Drug Enforcement Administration, a number much higher than the 175,000 doses the agency initially estimated. Most of the homicides in Baltimore were connected to the drug trade, and what happened in 2015 was a result of more people “getting into the game of selling drugs,” said Jeffrey Ian Ross, a criminologist at the University of Baltimore.
Police commanders have said that an oversupply of inventory from looting resulted in a violent battle for customers among drug gangs. “This would have caused a disruption in drug markets, with more people trying to maintain or increase their market share,” Dr. Ross said. “You have new entrants coming into the field, altering the supply and demand of illegal drugs in those neighborhoods,” often leading to increased violence.
If the drug theory holds true, the killings in Baltimore should subside this year. A midyear violent crime survey by the Major Cities Chiefs Police Association showed that while killings were up among 60 large cities, they were slightly down in Baltimore. “I’m not going to say they’re going to return to historic lows, but we hit a peak last year and things are settling themselves out,” Dr. Ross said.