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September 24, 2016

"Originalism and the Criminal Law: Vindicating Justice Scalia's Jurisprudence ― And the Constitutution"

The title of this post is the title of this new paper authored by Adam Lamparello and Charles MacLean now available via SSRN. Here is the abstract (which unfortunately does not seem to flesh out the title or themes of the piece's focus on Justice Scalia's criminal jurisprudence):

Justice Scalia was not perfect — no one is — but he was not a dishonest jurist. As one commentator explains, “[i]f Scalia was a champion of those rights [for criminal defendants, arrestees], he was an accidental champion, a jurist with a deeper objective — namely, fidelity to what he dubbed the ‘original meaning’ reflected in the text of the Constitution — that happened to intersect with the interests of the accused at some points in the constellation of criminal law and procedure.”  Indeed, Justice Scalia is more easily remembered not as a champion of the little guy, the voiceless, and the downtrodden, but rather, as Texas Gov. Greg Abbott said, an ‘unwavering defender of the written Constitution.’”

Justice Scalia’s frustration with the Court was certainly evident at times during his tenure, and understandably so.  In United States v. Windsor, Scalia lamented as follows: "We might have covered ourselves with honor today, by promising all sides of this debate that it was theirs to settle and that we would respect their resolution. We might have let the People decide. But that the majority will not do. Some will rejoice in today's decision, and some will despair at it; that is the nature of a controversy that matters so much to so many. But the Court has cheated both sides, robbing the winners of an honest victory, and the losers of the peace that comes from a fair defeat. We owed both of them better."

The above passage captures the essence of Justice Scalia’s philosophy, and the enduring legacy that will carry forward for many years after his death. At the end of the day, Justice Scalia, whether through well-reasoned decisions, blistering dissents, or witty comments at oral argument, spoke a truth that transcends time: “[m]ore important than your obligation to follow your conscience, or at least prior to it, is your obligation to form your conscience correctly.” And “[h]ave the courage to have your wisdom regarded as stupidity… and have the courage to suffer the contempt of the sophisticated world.” You will be missed, Justice Scalia. You left the Court — and the law — better than it was before you arrived.

September 24, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

US House passes significant update to federal Juvenile Justice and Delinquency Prevention Act

Though it now seems that major federal statutory sentencing reform remains dead at least until the election (as I had thought months ago), this Marshall Project piece highlights that some other federal criminal justice reform has been moving quietly forward.  Here are the details:

Even though the year began with strong bipartisan support for federal sentencing reform, no major changes to the criminal justice system have made it out of Congress thanks to a combination of legislative gridlock, election-year rhetoric about rising crime in some cities, and Republican reluctance to hand President Obama a major victory. But on Thursday, the House of Representatives quietly — and overwhelmingly — passed what might be the most significant justice reform measure to reach Obama in his tenure.

The bill is an update of the Juvenile Justice and Delinquency Prevention Act, which has been expired since 2007. It would withhold federal funding from states that hold minors in adult jails. Unlike previous versions of the law, the new bill would extend that protection to juveniles who have been charged with adult crimes but are still awaiting trial. The legislation would also ban states from locking up minors for so-called status offenses — things that are crimes only because of the age of the offender, such as truancy or breaking curfew.... “I’m delighted, but also optimistic,” said Rep. Bobby Scott (D-Va.), a lead sponsor of the bill. “Getting a law passed on justice issues — one that doesn’t go backward — has been a challenge, to say the least. But we ought to be able to conform the House and Senate versions and get this to the president” before his time in office runs out.

The Senate version of the bill has made it out of committee and has almost unanimous support. But it still faces an obstacle in Sen. Tom Cotton (R-Ark.), who has singlehandedly blocked the measure from being put to a quick voice vote. Cotton’s home state, Arkansas, locks up minors for running away and other status offenses at a disproportionately high rate, Mother Jones reported this week. A spokeswoman said Cotton is concerned the proposed law would erode the power of the bench. “It is prudent to allow states to determine if their judges — often in consultation with the parents and attorneys involved — should have the discretion to order secure confinement as a last-resort option,” Cotton spokeswoman Caroline Rabbitt said.

Sens. Charles Grassley (R-Iowa) and Sheldon Whitehouse (D-R.I.), the lead proponents of the bill on the Senate side, have been trying for months to reach a compromise with Cotton. If their effort fails, it would fall to Majority Leader Mitch McConnell (R-Ky.) to take up precious floor time — in a season devoted to reaching a spending deal and funding the fight against the Zika virus — with a debate and vote on the legislation.“Since it so closely resembles the Senate bill, Chairman Grassley is optimistic that it can be passed in the Senate,” said spokeswoman Beth Levine....

The JJDPA law has existed in various forms since 1974 and provides federal grants to states on the condition they adhere to several “core principles” for detaining youth: not in adult facilities, not for status offenses, and not in ways that impact different racial groups differently. But over time, loopholes have been added to the legislation, all of which the new, reauthorized bill aims to close.

States that do not want to comply with the new law, should it pass, could choose to forgo a portion of their federal funding, a modest $92 million per year to be shared across the country — assuming Congress agrees to appropriate the money. The bill also does not contain a key goal for reformers of the juvenile system: restricting the use of solitary confinement in youth prisons.

But the bill would require states to collect new data on racial disparities at every stage of the juvenile system and to present the federal government with a concrete plan for how they will address those divides. It would also require states to ensure that academic credits and transcripts are transferred, in a timely fashion, between schools and juvenile-detention facilities, and that children get full credit toward graduation for any schoolwork they completed while incarcerated. Finally, the legislation would ban the shackling of pregnant girls, provide funding for delinquency prevention and gang-intervention programs, and require states to report data on juvenile recidivism rates and other measures.

September 24, 2016 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

September 23, 2016

Eager to hear sharp suggestions for sharp Prez debate questions on criminal justice issues

Next week kicks off the Prez debate season, and I am certainly among the "yuge" number of folks really, really excited to see how Hillary Clinton and Donald Trump will perform and engage with the issues and each other on the big debate state starting on Monday.  Among the reasons I am so excited this season, beyond the obvious and diversely distinctive entertainment value of both candidates, is because it seems quite likely that criminal-justice-related issues will be major topics of discussion (especially, of course, with respect to immigration policy/enforcement and police/citizen encounters).

As readers know, I am regularly rooting for sentencing-specific (and/or "war on drugs/marijuana") topics to take center stage at debates, and I am regularly disappointed that these topics either fail to get raised or get raised in ways that make it too easy for the candidates to respond with only fuzzy rhetoric.  But now because Trump has made "law and order" a focal point of his recent campaign, and especially because both candidates have through the years made notable statements on topics ranging from the death penalty to mass incarceration to drug policy, I am yet again hopeful (though still not really optimistic) that the issues that consume this blog could be end up being discussed at some length and with some real bite at one or more of the coming debates.

Ever eager to help those with the challenging task of planning and moderating the coming debates, I am now eager to hear from readers in the comments throughout the weekend about what criminal justice issues they hope to see raised in the debates.  I would be especially eager, as the title of this post highlights, to read in the comments actual suggested questions that are crafted in sharp ways to try to help ensure the candidates cannot get away with fuzzy answers.   I genuinely doubt that the first debate moderator, Lester Holt, is a regular reader of the comment section of this blog, but you never know.

So, dear readers, my weekend challenge is to urge comment with some sharp suggestions for sharp Prez debate questions on criminal justice issues.

September 23, 2016 in Campaign 2016 and sentencing issues, Who Sentences? | Permalink | Comments (8)

Latest polling suggests California voters could benefit from more information about state's competing death penalty initiatives

This news report on the latest polling concerning the competing death penalty initiatives before voters this fall reinforces my sense that Californians could benefit from a lot more public discussion and debate over the state and possible fate of capital punishment there.  The news piece is headlined "Is a plan to end the death penalty on the ropes in California?," and here are the details (with my emphasis added):

A plurality of likely voters backs the latest ballot effort to repeal the death penalty in California and shutter the nation’s largest death row, but support remains below the 50 percent threshold needed, a new poll shows. The survey, completed jointly by the Field Poll and the Institute of Governmental Studies at UC Berkeley, found Proposition 62 ahead 48 to 37 percent, with 15 percent of likely voters undecided.

Meanwhile, barely a third (35 percent) support Proposition 66, a competing initiative aimed at expediting the death-penalty process. With 42 percent undecided, it appears far less familiar to voters.  Twenty-three percent are opposed.

The see-saw measures come four years after voters narrowly rejected Proposition 34, an initiative that would have replaced capital punishment with life in prison without parole. The Field Poll’s last survey of that measure, taken a week before the 2012 election, found it leading 45 to 38 percent.

Mark DiCamillo, director of the poll, said there are signs of encouragement for death-penalty opponents this time, despite hovering below a majority seven weeks before the Nov. 8 election. “This is not a bad-news poll for Prop. 62,” DiCamillo added....

Proposition 62 would replace death sentences with life in prison without the possibility of parole and apply retroactively to existing death sentences. Proposition 66 endeavors to speed up the process by requiring that appeals conclude within five years of sentencing. DiCamillo said there is “much greater confusion” about Proposition 66, adding, “Voters don’t fully understand what the impact is.” If both measures pass, the one with the most votes will prevail....

California’s last execution was in January 2006, with the state effectively halting executions over challenges to its lethal injection protocol.

Some of many prior related posts:

September 23, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

Great new US Sentencing Commission report on "simple possession" federal drug cases raises array of hard follow-up questions

Simplepossession_coverI find crime and punishment data so interesting and so important in large part because (1) even seemingly basic and simple data often can only be fully understood after one takes time to examine closely the backstories that surround that data, and (2) only if and when a researcher or advocate has deep understanding of data can that person even start to appreciate all the challenging policy and practical questions that important data implicate.  These realities are on full display in the context of an interesting and important new report released this week by the US Sentencing Commission titled "Weighing the Charges: Simple Possession of Drugs in the Federal Criminal Justice System." Here is the introduction to the short report, which explains the notable backstories concerning a dramatic recent change in the number of federal "simple possession" cases:

The simple possession of illegal drugs is a criminal offense under federal law and in many state jurisdictions. The offense occurs “when someone has on his or her person, or available for his or her use, a small amount of an illegal substance for the purpose of consuming or using it but without the intent to sell or give it to anyone else.”

Simple drug possession is a misdemeanor under federal law which provides that an offender may be sentenced to a term of imprisonment of not more than one year, fined a minimum of $1,000, or both. However, if an offender is convicted of simple possession after a prior drug related offense has become final, the offender can be charged with a felony simple possession offense.

The number of federal offenders whose most serious offense was simple drug possession increased nearly 400 percent during the six-year period between fiscal years 2008 and 2013. A change of this magnitude over a relatively short period of time triggered further investigation into these cases using data on offender and offense characteristics routinely collected by the United States Sentencing Commission (“the Commission”), as well as additional data collected specifically for this project.

At first, this dramatic increase in the number of offenders sentenced for the simple possession of drugs seems to suggest a substantially increased focus on this offense by federal law enforcement personnel. Further analysis, however, does not support such a conclusion. A closer inspection of the data demonstrates that this increase is almost entirely attributable to a single drug type — marijuana — and to offenders who were arrested at or near the U.S./Mexico border (a group almost entirely composed of offenders from the District of Arizona). For simple possession of marijuana offenders arrested at locations other than the U.S./Mexico border, the median quantity of marijuana involved in the offense was 5.2 grams (0.2 ounces).  In contrast, the offense conduct of simple possession of marijuana offenders arrested at that border involved a median quantity of 22,000 grams (48.5 pounds or 776.0 ounces) — a quantity that appears in excess of a personal use quantity.

In other words, the USSC noticed data showing a huge increase in the charging of misdemeanor federal drug crimes, which at first might suggest a curious new commitment by federal prosecutors to pursue low-level drug offenders. But, upon closer examination, the USSC discovers that what is really going on is that a whole lot of (low-level?) drug traffickers (mules?) found with huge quantities of marijuana are having their cases prosecuted through "simple possession" charges even though that label hardly seems like a factually fitting description of their drug crimes.

I am extraordinarily pleased to see the USSC detailing and explaining this interesting new data trend, and I am extraordinarily interested to hear from readers as to whether they think federal prosecutors in border regions ought to be praised or pilloried for their new misdemeanor approach to dealing with marijuana offenders arrested at the border with an average of 50 pounds of mary jane. This USSC report not only documents one tangible way that state marijuana reforms would seem to be having a profound impact on how the federal government is now waging the so-called "war on weed," but it also prompts a lot of hard questions about whether the new behaviors by federal drug prosecutors are appropriate given the absence of any formal changes to federal drug laws.

September 23, 2016 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (3)

Lots of notable new content worth checking out at the Collateral Consequences Resource Center

As regular readers know, I have made a habit of noting here some posts from the Collateral Consequences Resource Center because the topics covered there are so interesting and get so little attention in the mainstream media (or many other places in the blogosphere).  So... here are some recent posts of note from CCRC:

Major new federal awards support second chance advocacy

When does the Second Amendment protect a convicted person’s right to bear arms?

Felony Disenfranchisement: Setting the Record Straighter

Indiana courts interpret new expungement law

SUNY bans the box on admissions application

When collateral consequences drive the sentence: The David Becker case

Can the pardon power be revived through procedural reforms?

September 23, 2016 in Collateral consequences, Criminal Sentences Alternatives, Recommended reading, Who Sentences? | Permalink | Comments (0)

September 22, 2016

What could it mean politically and practically if — or should I say when — sentencing reform really becomes a "Latino Issue"?

LatinosReportCoverThe question in the title of this post is prompted by this interesting new Atlantic piece/interview authored by Juleyka Lantigua-Williams and headlined "Criminal Justice Is Becoming a 'Latino Issue': Yet there’s still a great deal we don’t know about Latinos and the criminal justice system." Here is how the piece begins:

Immigration has been the signature issue of political campaigns that want to appeal to Latinos, a group that has grown to encompass 17 percent of the population. But the last few years have poked big holes in the idea that Latinos only care about immigration, showing that Latino voters also care about terrorism, social security, and the environment. A growing number of Latinos are also becoming concerned about criminal justice reform, as more join the call for systemic changes at the federal and state levels.

Latinos are overrepresented both among victims of violence and among those behind bars. Latinos under 30 are almost three times as likely to be homicide victims as whites the same age, according to the Tomás Rivera Policy Institute at USC. They are also more likely to be threatened or attacked with a gun. And when Latinos report crimes, the report is less likely to lead to an arrest than the same crimes do when the victims are white.

In a 2014 report, the Violence Policy Center gathered valuable information on the profiles of Latino victims of crime. The homicide rate is more than twice as high as that of whites, and homicide is the second-leading cause of death for Latinos 15 to 24 years old. About 41 percent of Latino homicide victims in 2011 were younger than 24. Among blacks, the rate was 40 percent, and among whites it was 22 percent. In prisons, 20 percent are Latino, according to the Department of Justice, which indicates that if current rates continue, one of every six Latino men can expect to spend time in jail over their lifetime.

Yet a great deal of data that would help policymakers and advocates understand Latinos’ relationship to law enforcement has yet to be collected — there is much more data about whites and blacks’ encounters with the criminal justice system. After hitting some dead-ends in my search for answers about Latinos’ perceptions of, and experiences with the penal institutions and law-enforcement authorities in the country, I reached out to Alex Piquero, a criminologist at the University of Texas, Dallas, with some of my most pressing questions. An abridged and edited version of our conversation follows.

Juleyka Lantigua-Williams: I’m trying to address the question of whether Latinos care enough, or care at all, or should care more about criminal justice reform. What’s your perspective on that?

Alex Piquero: There are two main things that the research evidence is very clear about. The first one is, unfortunately, we do not have a lot of information on Hispanics in the criminal justice system, in general, whether it’s their offending, whether it’s their perceptions of the system. That’s primarily because of the lack of data collection that has occurred in this country for over a hundred years.

We’re getting better, we’re now starting to collect that data. For example, the FBI started to collect that information with arrest statistics. Traditionally, most of the research on criminal justice issues, whether it’s looking at offending patterns or incarceration rates, or people’s perceptions about the criminal justice system and their experiences has been only focused on blacks and whites, because of data constraints. Now we’re starting to get a little bit of a picture with respect to Hispanic and Latino views.

Lantigua-Williams: What do you think has been the effect of this lack of data, specifically on Latinos?

Piquero: We just had no idea what Hispanics felt about with respect to the criminal justice system or their experiences. That’s been one of the very big limiting factors of that area of work, that’s really important to say because we don’t have fifty years of research on a topic like that, whereas we do with respect to whites and African Americans. That said, the most recent research is complicated because there’s a lot of variability within Hispanics.

Cubans, Puerto Ricans, Mexicans, Central Americans, they may not see and/or interpret the criminal justice system in the same way. Sometimes you’re going to see differences within the groups, but we have very little information, for example, on what Puerto Ricans think about the criminal justice system because, typically, those studies have always lumped together the various Hispanic groups. Now, that said, Hispanics care about the criminal justice system just as much as whites and African Americans do. They are interested in it, they have experiences about it, and I think Hispanics are no different from whites and African Americans in that they see needs for reform. There’s no perfect system, but there’s not a lot of variability with respect to what parts of the system they may want to see reformed.

September 22, 2016 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

"Under the Radar: Neuroimaging Evidence in the Criminal Courtroom"

The title of this post is the title of this notable (and quite lengthy) article available via SSRN authored by Lyn Gaudet and Gary Marchant. Here is the abstract (with one line emphasized therein for sentencing fans):

This Article analyzes court decisions in 361 criminal cases involving neuroimaging evidence through the end of 2015. There has been a steady upward trend in the number of criminal cases considering neuroimaging evidence with the number of reported decisions being the highest in the most recent period of 2013-2015. Neuroimaging evidence has been used in competency, guilt, and penalty phases of criminal trials, with the most efficacy being seen in the penalty phase, especially in capital cases.

In order to provide a helpful analysis of uses and trends of this specific type of evidence, this Article includes an identification of the specific neuroimaging modality used or requested in each case (CT, MRI, EEG, PET, SPECT), the reason for the request for neuroimaging, the legal argument involving the imaging data, and the court’s response. In addition, common concerns regarding the use of neuroimaging data are also addressed, including the complexity of the various techniques and analysis, individual variability of the brain, the time gap between scanning and the criminal act, and the ability to make statements about groups versus about one individual.

As supported by the trends demonstrated in this analysis, there has been a shift in recent years from discussion about whether neuroimaging evidence is relevant and admissible toward admissibility of this type of evidence and a focus on the substantive results and appropriate use of the neuroimaging data.

September 22, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Interesting account of how Mexico invests in keeping its homicidal citizens from being sentenced to death in the US

The Marshall Project has this interesting new article headlined "How Mexico Saves Its Citizens from the Death Penalty in the U.S.: A fund is designated to train, pay and advise American defense lawyers." Here are is how it gets started:

When the body of 25-year old Lesley Hope Plott was found lying in a ditch in Russellville, Ala., in February of 2013, police had little trouble zeroing in on a suspect: hours earlier, a nearby church’s security camera had recorded her being beaten and stabbed by her estranged husband, Angel Campos Nava.

Born in Mexico, Nava, 36, had come to the United States years earlier. He had already been convicted of assaulting Plott on two earlier occasions. A murder conviction could result in the death penalty. It was up to Rebecca Thomason, Nava’s lawyer, to convince the Franklin County district attorney to instead seek a life sentence, or, failing that, to convince a jury to spare his life. It didn’t help that Nava was undocumented, and they were in Alabama, a state with some of the harshest anti-immigration laws in the country.

Then, Thomason received a call offering her something few lawyers in death penalty cases get: money, training, and advice, courtesy of the Mexican government. Nava’s case had caught the attention of the Mexican Capital Legal Assistance Program, created by Mexican officials in 2000 to save the country’s citizens from execution in the United States.

One of the program’s chief purposes is to help defense attorneys construct a biography of the accused—to humanize them. Poverty, family dysfunction, and developmental disability are frequent themes in their clients’ lives. When presented as part of a defense, such themes can encourage mercy among jurors and dissuade them from handing down a death sentence.

To that end, the program arranges for lawyers to go to Mexico to track down school and hospital records and stories about their clients’ lives, either paying for their travel costs or advising them on how to request money from local courts. Under the program, Mexico pays American lawyers up to $220 an hour to track potential death penalty cases around the country—watching court decisions and news stories from the moment of arrest, all the way through the last minute scramble before an execution—and advise court-appointed lawyers like Thomason.

Since 2008, the program has provided these attorneys with an average annual budget of around $4 million to track as many as 135 cases at a time, according to the program’s filings with the Department of Justice.  That comes out to roughly $29,000 per case, per year.  By contrast, the Equal Justice Initiative, which represents numerous inmates on Alabama’s death row, has reported that many of them were sentenced to death after their attorneys’ fees were capped at $1,000 for out-of-court trial preparation.

September 22, 2016 in Death Penalty Reforms, Offender Characteristics, Sentencing around the world, Who Sentences? | Permalink | Comments (3)

September 21, 2016

Federal District Judge reasonably asks "What’s The Deal With White Guys And Child Porn?"

Long-time readers and federal district court aficionados likely know plenty about Senior United States District Judge Richard G. Kopf, a jurist who has never been afraid to say what he is thinking (and who's gotten in trouble a few times for that tendency). As evidenced by this new post at Mimesis Law, the judge has lately been giving thought to kiddie porn and the racial demographics of certain offender groups.  Here are excerpts:

In America, there is no doubt that in most circumstances being white (Caucasian in census terms) is a benefit.... But, at least in one category, it appears that being white is not a really good thing, but rather a predictor for the commission of horrible federal crimes. I refer to the production of child pornography.

The Sentencing Commission has told us that child porn consumers[* footnote] are “overwhelming white.” U.S. Sentencing Commission, Report to the Congress: Federal Child Pornography Offenses, ch. 11 at 308 n. 56 (Dec. 2012). The same thing is true for producers of child pornography. That is: "Production offenders, like non-production child pornography offenders, are a relatively homogenous group demographically compared to federal offenders generally. Among production offenders in fiscal year 2010, the overwhelming majority were male (97.0%), white (85.9%), and United States citizens (97.0%)."

Moreover, child porn producers were very different than the normal federal offender.  They were employed, relatively well-educated and came from a higher socio-economic background. To be specific, ... "like non-production offenders, production offenders on average occupy a higher socio-economic status than federal offenders generally. In fiscal year 2010, 87.7 percent of production offenders were high school graduates, and 46.7 percent had at least some college.  In fiscal 2010, among all federal offenders, the typical offender was not a high school graduate (51.4%), and only 19.9 percent of offenders had at least some college education.  There was a high degree of employment among child pornography production offenders at the time of their arrests.  Of the 197 production offenders sentenced in 2010 for which there was employment data, 76.1 percent were employed."

But in all probability, you don’t know what I mean, at least on a visceral level, by the words “child porn producer.”  So let me give you an example.  Be prepared to puke. The following is an accurate media summary of a child porn production case that started off in Michigan and landed on my docket as well because the united group of producers spanned our nation.

"A November arrest in a child porn case has led federal investigators to a larger ring of suspects accused of working together online to manipulate young girls into engaging in sexual acts on camera. A complaint against a California man filed in Detroit federal court Thursday revealed details of a disturbing and elaborate operation that sought to lure minors into video chatrooms where they would be urged to perform 'dares' while their images were recorded.... Federal investigators learned that members of the group served distinct roles that included 'hunters,' 'talkers,' 'loopers' and 'watchers'."

What happened to these young girls, mostly in their early teens, was horrendous.  Suffice it state that they were cajoled or trapped into violating themselves in the most sickening and humiliating of ways, in one case blackmailed to continue the abuse, and in another case permitted to harm herself for the pleasure of the observers.

My part of this case was simple.  The Nebraska white guy, who was 31, and a hardworking man, with post-secondary education, and respected member of his community, was confronted at his home by the FBI.  He told me that he was relieved when the feds came to the door because he didn’t know how to stop.  He immediately spilled his guts.  I accepted the Rule 11(c) (1) (C) plea agreement, containing an appeal waiver, and requiring me to sentence the defendant to 35 years in prison.  His Guideline range was life.

He was very smart to have accepted the deal because I would likely have imposed a life sentence.  Despite my reservations, I approved the plea agreement to avoid a trial with the kids being forced to testify.  I also sentenced him to a life of supervised release when he gets out of prison as an old man.  He was capable of making, and I required him to pay, a substantial amount of restitution to the children.

As I reflected on the above, I wondered about the word “thug” with all the racial freight that word carries.  I asked myself how I should describe these white child porn producers assuming I see no problem with the word “thug.”  Perhaps I could call them “white devils!”  Anyway, at this point I realized that my mind was wandering, so I returned to the essential question.

What the hell is wrong with white guys?

[* footnote] As I have previously noted in Fault Lines, I have some empathy for child porn consumers as opposed to child porn producers.  See here.

September 21, 2016 in Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (14)

"Assessing Time Served" and the deeply under-theorized problems of criminal history

Patrick Woods has this effective and important new article now available via SSRN titled "Assessing Time Served."  Here is the abstract (which will be followed by a few comments I have about this topic):

This article examines the utility of a new way of determining when increased punishment should be imposed pursuant to “three strikes” laws or other recidivist enhancements. In the past two years, Congress and the United States Sentencing Commission have each considered criminal justice reform measures that would use the length of time an offender spent incarcerated as a proxy for the seriousness of his earlier criminal conduct.  While this reform seems sound at first glance, the article ultimately concludes that its incorporation into current state and federal sentencing laws must be done carefully, if at all, and that doing so now may be premature.

The article compares this new “time served” approach with the current methods of determining the severity of the punishment imposed upon an offender for his prior crime.  Current federal and state laws assess the seriousness of prior punishment using either the maximum statutory penalty — irrespective of the real sentence — or the sentence announced in court by the judge — even if only a small fraction of that sentence was actually served before the defendant was released.  Compared with these methods, determining the severity of a prior punishment using a “time served” measure seems to be an improvement.

Real problems, however, lurk just below the surface.  The article discusses in detail significant challenges with records gathering, defining the term of incarceration, and using the metric in a way that is consistent with due process guarantees.  It suggests how the metric might be employed to minimize each of these concerns, but also concludes that the condition of state and local incarceration records may make use of the metric in the near future impracticable.

This article effectively highlights some of the practical challenges of using time actually served in prison as a metric for recidivist sentencing enhancements, and these practical challenges must be considered against the backdrop of the host of other practical difficulties federal courts have experienced in using other metrics in application of the Armed Career Criminal Act and guideline assessments of criminal history.  Moreover, as the title of this post hints,  I think modern criminal justice theorists and scholars ought to be working a lot more on what the author calls the "philosophical underpinnings" of recidivist sentencing enhancements. (The author usefully brackets this issue because his fundamental project in this article is not conceptual.)  In many ways, I think the "war on drug" has had its biggest impact on modern incarceration through such recidivist enhancements, and I have long thought that the "philosophical underpinnings" of such enhancements can and should be greatly influenced by the types (and especially the motives) of prior offenses.

September 21, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (0)

Astute recognition that crime victims have to be integral part of effort to address modern mass incarceration

Greg Berman and Julian Adler have this important new commentary at The Crime Report headlined "Finding Common Cause: Victims and the Movement to Reduce Incarceration." Here are excerpts:

After more than a generation of punitive, “tough-on-crime” rhetoric and policymaking, there is now a fairly broad political consensus in the United States that we have gone too far in our use of incarceration.  Indeed, just a few weeks ago, the White House unveiled the Data-Driven Justice Initiative, a partnership of 67 jurisdictions — big and small, conservative and liberal — committed to using data to reduce incarceration.

The efforts to roll back mass incarceration are laudable, but they will not achieve lasting change if they do not figure out how to incorporate the perspectives of the justice system’s most vulnerable constituents: Victims of crime.

Victims of intimate partner violence in particular often feel sidelined by a criminal justice system that focuses almost exclusively on defendants. And make no mistake: Domestic violence represents a significant percentage of the cases in our criminal courts.  Current estimates show that approximately 10 million people are abused by an intimate partner in the U.S. each year — and this is almost certainly an undercount, given the hidden and unreported nature of a lot of abuse.

But it is not just the criminal justice system that pays short shrift to victims. Reformers do it, too. “Victims have been overlooked in this de-incarceration movement,” said Mai Fernandez, executive director of the National Center for Victims of Crime, in a recent interview with the Center for Court Innovation. Advocates concerned with reducing the use of incarceration typically argue that fewer defendants should be sent to jail or prison, and that there should be more community-based alternatives. Victim support organizations are, by definition, focused on crime victims’ safety. Historically, many have argued for increased accountability — including incarceration — for offenders, particularly in cases involving domestic violence.

Is it possible for victim advocates and jail reduction advocates to find common cause?  To begin to answer this question, the John D. and Catherine T. MacArthur Foundation and the Center for Court Innovation convened a roundtable with policymakers and practitioners from across the country, including judges, prosecutors, defense attorneys, victim advocates, and police officials. The roundtable highlighted a number of tensions.

One obvious tension is the potential conflict between protecting the safety of victims and protecting the constitutional rights of the accused. Many advocates believe that to better serve victims, courts should impose conditions of release—including stay-away orders, monitoring, and participation in specialized services — for domestic violence defendants who are out in the community pending trial. This idea runs up against the strong national push to reduce pretrial detention for those who have been accused—but not convicted — of criminal behavior.

As with much of American life, the challenge of racial, ethnic and gender disparity hangs over this conversation. Black and Latino communities have long histories of being over-policed and over-criminalized in the U.S. At the same time, these communities have been under-protected from the threat of victimization. History tells us that women of color are particularly vulnerable.

Many advocates of jail reduction place great faith in actuarial risk assessment instruments to determine who can be safely released while a case is pending.  But victim advocates are asking some hard questions about these tools: How accurate are they? What can a statistical analysis tell us about what any individual defendant might do?  And how well do risk tools take into account potential lethality?

“Domestic violence defendants are different,” argued Idaho judge James Cawthon in the roundtable. Indeed, there is plenty of evidence to suggest that the presence of a specifically targeted victim changes the equation when it comes to looking at the potential risk — and severity — of re-offending. While some jurisdictions have developed special risk assessment tools for domestic violence defendants, many have not.  In the days ahead, jail and prison reformers will have to wrestle with these and other challenges if they are to win the full-throated support of victim advocacy groups....

A strong body of opinion within the victims’ movement agrees the time has come to take a hard look at “right-sizing” incarceration, which involves figuring out who needs to be behind bars and who does not.  “It’s just simply not the case that all victims of violent crimes, and certainly not all victims of nonviolent crimes, seek a punitive punishment for the offender,” University of Miami law professor Donna Coker tells the Center for Court Innovation.  “What they frequently seek is some assurance that it won’t happen to them again and some assurance that it won’t happen to somebody else.”

Victim advocates and jail reduction proponents may not be able to agree on every issue. But in those areas where they have shared goals — improving the quality of risk assessment tools, reducing racial and gender disparities, and promoting trauma-informed care — they can serve as a powerful voice for change within our justice system.

September 21, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (0)

September 20, 2016

"The Constitutional Right to Collateral Post-Conviction Review"

The title of this post is the title of this new and timely new article authored by Carlos Manuel Vazquez and Stephen Vladeck. Here is the abstract:

For years, the prevailing academic and judicial wisdom has held that, between them, Congress and the Supreme Court have rendered post-conviction habeas review all-but a dead letter. But in its January 2016 decision in Montgomery v. Louisiana, the Supreme Court may have dramatically upended that understanding in holding — for the first time — that there are at least some cases in which the Constitution itself creates a right to collateral post-conviction review, i.e., cases in which a state prisoner seeks retroactively to enforce a “new rule” of substantive constitutional law under the familiar doctrine of Teague v. Lane.

On the surface, Montgomery held only that state courts are required to employ Teague’s retroactivity framework when and if they adjudicate habeas petitions relying on new substantive rules of federal law. But, in reaching that conclusion, the Court clarified that Teague’s holding that new substantive rules of federal law are retroactively applicable on collateral review was a constitutional one, a holding that, as we explain, was both novel and important.

We next consider which courts — state or federal — have the constitutional obligation to provide the constitutionally required collateral review recognized in Montgomery. Either way, the implications of Montgomery are far-reaching.  To conclude that the state courts must provide collateral review would run counter to the conventional wisdom that states are under no obligation to permit collateral attacks on convictions that have become final. On the other hand, the conclusion that federal courts must have jurisdiction to grant such collateral review is in significant tension with the Madisonian Compromise.  In our view, the Supreme Court’s Supremacy Clause jurisprudence establishes that the constitutionally required collateral remedy recognized in Montgomery must be available, in the first instance, in state courts — even if the state has not chosen to provide collateral post-conviction relief for comparable state-law claims.  The state courts also have the constitutional power and duty to afford such relief to federal prisoners, but Congress has the power to withdraw such cases from the state courts by giving the federal courts exclusive jurisdiction over such claims.  Thus, we conclude that the state courts are constitutionally obligated to afford collateral post-conviction review to state prisoners in the circumstances covered by Montgomery, and the federal courts should be presumed to have the statutory obligation to afford such review to federal prisoners.

Finally, we examine some of the important questions raised by the conclusion that state and federal prisoners have a constitutional right to collateral relief. Although the questions are complex, and not all of the answers are clear, the uncertainties surrounding some of the contours of the remedy recognized in Montgomery should not obscure the fact this seemingly innocuous holding about the Supreme Court’s appellate jurisdiction actually upends a half-century’s worth of doctrinal and theoretical analyses of collateral post-conviction review, a result that could have a breathtaking impact on both commentators’ and courts’ understanding of the relationship between collateral post-conviction remedies and the Constitution.

When I got involved in writing a little commentary about the Montgomery opinion earlier this year, Montgomery's Messy Trifecta, I came to see themes and language in the Montgomery opinion that struck me as very important and very ground-breaking.  Thus, I am especially pleased to discover that I am not the only one who believes (and arguably welcomes) the fact that a "seemingly innocuous holding about the Supreme Court’s appellate jurisdiction actually upends a half-century’s worth of doctrinal and theoretical analyses of collateral post-conviction review."

September 20, 2016 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

What should we make of why and how New Mexico's Gov is pushing hard to bring back the death penalty in her state?

One notable sentencing reform story in the United States over the last decade has been the growing number of states abolishing capital punishment legislatively while no new state has come to (or come back to) embrace the penalty.  Specifically, in the last decade, we have seen legislatures in New York, New Jersey, New Mexico, Illinois, Connecticut, Maryland and Nebraska take their machineries of death off-line.  (The 2015 Nebraska repeal, as regular readers know, might be reversed by voter referendum this November.) 

But as highlighted by this new AP article, headlined "New Mexico Governor Wants Vote on Reinstating Death Penalty," a notable chief executive is now making a notable hard push for bringing the death penalty back in her state.  Here are the latest details:

P>New Mexico Gov. Susana Martinez stepped up pressure on lawmakers Tuesday to consider reinstating the death penalty by promising to add the issue to a legislative agenda for a pending special session that was aimed solely at fixing the state's budget shortfall.

The second-term Republican governor said that she wants the death penalty as an option for convicted killers of police, children and corrections officers.  New Mexico repealed the death penalty in 2009 before Martinez took office by replacing provisions for lethal injection with a sentence of life in prison without parole.  The move by Martinez could compel lawmakers to take a public stand on capital punishment ahead of November elections for the Republican-controlled state House of Representatives and Democrat-dominated state Senate. 

"Cop killers and child murderers deserve the ultimate punishment," Martinez said in a written statement.  "If you kill an officer, you deserve the death penalty. If you kill a child, you deserve the death penalty.  It's time we say enough is enough."...

Her push to restore capital punishment follows the killings in southern New Mexico of two police officers in separate shootings in August and September by wanted fugitives, along with the horrific killing and dismemberment of a 10-year-old New Mexico girl in Albuquerque last month.

New Mexico executed nine men starting in 1933 until more than seven decades later when it abolished the death penalty.  The state's most recent execution in 2001 was its first since 1960.  Former Gov. Bill Richardson, a Democrat, cited flaws in how the death penalty was applied when he signed the legislation that abolished it.  He said the criminal justice system must be perfect if it will be used to put someone to death.

I presume Gov Martinez genuinely believes that justice demands the death penalty for cop killers and child killers (although her strong rhetoric makes me wonder if she shares GOP Prez nominee Donald Trump's view that we should have a mandatory capital punishment for cop killers as well as for child killers).  And yet, given the current timing of her push for bringing the death penalty back to New Mexico, I cannot help but wonder if Gov Martinez  (1) has some strong internal polling numbers suggesting citizens in the state also strongly favor a return of the death penalty, and (2) thinks that the death penalty can be an effective "wedge" issue for her to help get her preferred state legislative candidates elected this fall. 

September 20, 2016 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (8)

"Lethally Deficient: Direct Appeals in Texas Death Penalty Cases"

Td2The title of this post is the title of this notable new lengthy report produced by the Texas Defender Service.  The start of this news release provides an overview of the report's contents:

Texas’ system of providing direct appeal representation in death penalty cases is in dire need of reform, according to a new report by Texas Defender Service.  The report, Lethally Deficient, evaluates six years of direct death penalty appeals and concludes that the current system is broken.  The Texas Legislature should, Texas Defender Service recommends, create a capital appellate defender office to handle these appeals, establish a statewide appointment system with caseload controls and uniform compensation, and require the appointment of two qualified lawyers to each death penalty direct appeal.

Lethally Deficient: Direct Appeals in Texas Death Penalty Cases is the first report to engage in an in-depth examination of direct appeals for Texas death penalty cases. Texas law requires all death sentences to be directly appealed from the trial court to the Texas Court of Criminal Appeals.  A direct appeal is based on the trial record and transcript.

“This report documents that, in case after case, most death row inmates are not well represented on direct appeal,” said Kathryn Kase, Executive Director of Texas Defender Service, a nonprofit law firm that works on capital cases and related criminal justice issues. “Texas should do what it did to address the crisis in capital habeas representation: create a public defender office that handles only direct death penalty appeals.”

TDS examined all direct appeals filed in each of the 84 death penalty cases decided by the Court of Criminal Appeals between January 1, 2009 and December 31, 2015.  The study uncovers multiple deficits in capital direct appeal representation. Lawyers submitted briefs that recycled failed legal arguments without updating to reflect current law, failed to meet — and at times, correspond with — their clients, failed to request oral argument, and avoided filing reply briefs and applications for U.S. Supreme Court review.  And while other jurisdictions reported attorneys needing between 500 and 1,000 hours to brief a capital direct appeal, defense lawyers for the cases in the TDS study billed between 72.1 to 535.0 hours for each appeal, for an average of only 275.9 hours.

In the six years – 2009 through 2015 – that these deficiencies occurred, TDS found that the CCA did not reverse a single conviction in a death penalty case on direct appeal.  The CCA affirmed convictions and death sentences in 79 cases, and reversed death sentences in just three cases.

When compared to capital litigants in other jurisdictions, Texas death penalty appellants fare far worse. Death row inmates outside Texas are 2.8 times more likely to have their cases reversed on direct appeal.  TDS reviewed 1,060 capital direct appeal decisions issued by the highest courts in the 30 other death penalty states between 2005 and 2015, and these courts collectively reversed 16.0% of all death sentences.  By contrast, the Texas Court of Criminal Appeals reversed just 5.7% of the death penalty cases heard on direct appeal between 2005 and 2015.

September 20, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Lots of notable new content worth checking out at Crime & Consequences

The students in my Sentencing Law and Policy course at The Ohio State University Moritz College of Law may already be getting tired of hearing me encourage them to regularly check out Crime & Consequences for another perspective on the issues we discuss in my class.  But as I was talking up a recent post there in class yesterday, I discovered that the C&C folks have recently added a lot of new content that merits highlighting here.  So....

In my class yesterday, I was trying to highlight the last of these listed posts as we were talking about whether and how you could argue to elected officials and voters that abolition of the death penalty would save significant monies within a jurisdiction. Perhaps unsurprisingly, as Kent at C&C highlights, folks advocating for death penalty abolition in Nebraska and elsewhere are eager to argue great savings from getting rid of the death penalty, but the numbers they promote as part of such a pitch are certainly contestable.

September 20, 2016 in Recommended reading, Who Sentences? | Permalink | Comments (1)

Do animal abuser registries make more or less sense than sex offender registries?

The question in the title of this post is prompted by this recent Washington Post piece headlined "Animal abusers are being registered like sex offenders in these jurisdictions." Here are excerpts:

Starting in November, convicted animal abusers in the county that includes Tampa will be easier to identify. Their names, photos and addresses will be published on a county-run website that is publicly searchable and similar to the online sex offender registries that have proliferated since the 1990s.

The animal abuser registry, passed last week by commissioners in Hillsborough County, is aimed at preventing people who have harmed animals from doing so again.  Retailers and shelters will be required to have prospective pet adopters or purchasers sign an affidavit saying they’re not on the registry.  Regular people seeking pet-sitters or new homes for their animals will be able to vet candidates. Law enforcement officials will, at least in theory, be able to keep tabs on offenders’ whereabouts.

The county is the latest in a tiny but growing group of U.S. jurisdictions to adopt such registries.  A handful of New York counties have them, as does New York City, although that one isn’t accessible to the public. Cook County, Ill., whose county seat is Chicago, recently decided to create one. Tennessee started the first statewide registry in January, although it still has just three people on its list.

“Just as we place extra trust in teachers and law enforcement, so, too, should we ensure that those engaged in the handling of animals have a spotless record,” New Jersey state Rep. Troy Singleton (D) said about legislation he sponsored to make his state home to the second statewide animal abuse registry. He referred to the idea as a “first line of defense.”

The registries are part of widening efforts in the United States to punish and track animal abusers, who, research has shown, commit violence against people at higher rates than normal. All 50 states now have felony provisions for the gravest crimes against animals, although many offenses are still considered misdemeanors. The FBI has added animal cruelty to its list of Class A felonies, and this year began collecting data for such crimes the way it does for other serious offenses, including homicide.

“Most owners consider their pets to be family members,” Kevin Beckner, the Hillsborough County commissioner who pushed for the registry, said in a statement.  “This Registry not only protects animals, but it can identify — and maybe even prevent — violence against humans, too.”

The registries have several limitations. For one thing, they’re local, not national, so a person with an animal cruelty record in Tampa wouldn’t be stopped from getting a cat in Miami. Most require the cooperation of offenders themselves, requiring them to register or face a fine.

And the tool is not without its detractors — some of whom include animal advocates.  The chair of the Hillsborough County’s Animal Advisory Committee called the registry there “not sufficient at all,” according to the Tampa Bay Times.  Retailers have protested the idea of putting salespeople in the position of saying no to potentially violent customers whose names pop up in an online search.  That concern led the Florida county to require stores and adoption shelters to procure only an affidavit, which can be checked against the registry — and passed along to authorities if there’s a match — after the customer leaves. But it has been dismissed elsewhere....

Among the skeptics is the Humane Society of the United States, whose president and chief executive, Wayne Pacelle, wrote in 2010 that the “overwhelming proportion of animal abuse is perpetrated by people who neglect their own animals” and are unlikely to commit violence against other people and pets.  “Such individuals would pose a lesser threat to animals in the future if they received comprehensive mental health counseling,” Pacelle wrote at the time.  “Shaming them with a public Internet profile is unlikely to affect their future behavior — except perhaps to isolate them further from society and promote increased distrust of authority figures trying to help them.”

A few prior related posts:

September 20, 2016 in Collateral consequences, Criminal Sentences Alternatives, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (13)

Terrific TakePart series of article and commentary on "Violence and Redemption"

TakePart has this great "Big Issue" collection of articles, videos and commentary under the heading "Violence and Redemption: Can Rehabilitating Felons Make Us Safer."  There is so much important and insightful material collected here, I cannot easily link to it all.  But I can provide this introductory paragraph and some headlines/links to whet appetites:

With 5 percent of the world’s people but 25 percent of the world’s incarcerated, the United States is home to the largest prison population in the world.

A meaningful reduction in the prison population of 2.3 million people can’t happen without addressing those incarcerated for violent offenses. They make up at least 53 percent of the total in state prisons. Is that too many? Are they in for the right reasons? Are they hopeless cases, or can something be done to help reform and rehabilitate them, make them valuable members of society who won’t commit crimes again? Advocates cite three possible approaches to this problem: reforming justice, rehabilitation, and forgiveness.

September 20, 2016 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (0)

September 19, 2016

Brennan Center releases new report to contend "crime rates in 2016 are projected to be nearly the same as last year, with crime remaining at an all-time low"

Via this website, I see that the Brennan Center for Justice has released this important new report headlined "Crime in 2016: A Preliminary Analysis." Interestingly, the first summary description of the report strikes a very positive note: "Overall crime rates in 2016 are projected to be nearly the same as last year, with crime remaining at an all-time low, according to a new Brennan Center analysis."  But a review of the report's executive summary is much more nuanced and sobering, as in includes these data points and explanation: This report ... collects midyear data from police departments to project overall crime, violent crime, and murder for all of 2016.  Its principal findings are:

  • Crime:  Crime overall in 2016 is projected to remain the same as in 2015, rising by 1.3 percent.  Twelve cities are expected to see drops in crime. These decreases are offset by Chicago (rising 9.1 percent) and Charlotte (17.5 percent).  Nationally, crime remains at an all-time low.

  • Violence: Violent crime is projected to rise slightly, by 5.5 percent, with half the increase driven by Los Angeles (up 17 percent) and Chicago (up 16 percent). Even so, violent crime remains near the bottom of the nation’s 30-year downward trend.

  • Murder: Murder is projected to rise by 13.1 percent this year, with nearly half of this increase attributable to Chicago alone (234 of 496 murders). Significantly, other cities that drove the national murder increase in 2015 are projected to see significant decreases in 2016. Those cities include Baltimore (down 9.9 percent) and Washington, D.C. (down 10.9 percent). New York remains one of the safest large cities, even with murder projected to rise 2.1 percent this year.

Nationally, the murder rate is projected to increase 31.5 percent from 2014 to 2016 — with half of additional murders attributable to Baltimore, Chicago, and Houston. Since homicide rates remain low nationwide, percentage increases may overstate relatively small increases.  In San Jose, for example, just 21 new murders translated to an increase of 70.6 percent. Based on this data, the authors conclude there is no evidence of a national murder wave, yet increases in these select cities are indeed a serious problem.

  • Chicago Is An Outlier: Crime rose significantly in Chicago this year and last. No other large city is expected to see a comparable increase in violence. The causes are still unclear, but some theories include higher concentrations of poverty, increased gang activity, and fewer police officers.

  • Explanations for Overall Trends: Very few cities are projected to see crime rise uniformly this year, and only Chicago will see significant, back-to-back increases in both violent crime and murder. The authors attempted to investigate causes of these spikes, but ultimately were unable to draw conclusions due to lack of data.  Based on their research, however, the authors believe cities with long-term socioeconomic problems (high poverty, unemployment, and racial segregation) are more prone to short-term spikes in crime. Because the pattern across cities is not uniform, the authors believe these spikes are created by as-of-yet unidentified local factors, rather than any sort of national characteristic. Further, it is normal for crime to fluctuate from year-to-year. The increases and decreases in most cities’ murder rates in 2015 and 2016, for example, are within the range of previous two-year fluctuations, meaning they may be normal short-term variations.

These findings undercut media reports referring to crime as “out of control,” or heralding a new nationwide crime wave. But the data do call attention to specific cities, especially Chicago, and an urgent need to address violence there. Notably, this analysis focuses on major cities, where increases in crime and murder were highest in preliminary Uniform Crime Reporting data for 2015, so this report likely overestimates any national rise in crime. It also represents a projection based on data available through early September 2016.

I fully appreciate the considerable importance and enduring challenge of collecting and reporting on crime data accurately.  But, with all due respect to the work of the fine folks at the Brennan Center, I am troubled that this report seems presented in a way that tries to downplay a number of disconcerting numbers.  For starters, a 1+% increase in overall crime is a slight increase, not crime "remaining the same."  Moreover, I do not think it fair to assert that crime "remains at an all-time low" just after reporting it is going up a little bit.  Similarly, a 5+% increase in violent crime strikes me as a notable increase, not just a "slight" one.  And finally, the fact that murder is projected to be up another 13+% in 2016 after a significant spike up in 2015 does, at least in my view, lend credence to at least the claim that the US in now in the midst of a "new nationwide [homicide] crime wave."

September 19, 2016 in National and State Crime Data | Permalink | Comments (4)

September 18, 2016

"What Executioners Can — And Cannot — Teach Us About the Death Penalty"

The title of this post is the title of this notable new paper authored by Susan Bandes now available via SSRN. Here is the abstract:

Executioners and others who come into close proximity with the condemned often come to reject the death penalty. They reject it not only in individual cases, and not only on the ground that the death penalty is poorly implemented. They conclude that capital punishment is wrong.  I argue that the perspective of the executioner helps illuminate the debate about whether to abolish capital punishment, and raises the troubling possibility that support for the death penalty can survive only at a great remove.

The essay responds to a recent article by Jeffrie Murphy focusing on the question of whether executioners can take pride in their work. I contend that Murphy asks the wrong question, and that the better question is whether anyone ought to be asked to do such work.  On this latter question, the perspective of the executioner sheds important light.  Like Murphy, I draw on works by and about Albert Pierrepoint, the “last hangman” of Britain.  I also draw on the perspectives of numerous executioners, wardens, chaplains and other death row personnel.  I argue that their perspectives offer a powerful argument against the main rationale for the death penalty: retribution.  If retribution is keyed to the offender’s character as well as his wrongful act, then post-conviction character ought to matter.  The executioners’ accounts share a common theme: that death row inmates change over time and hold the potential for redemption.

September 18, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

Who will go after the biggest (legal) drug dealers still contributing to the biggest modern drug harms?

The question in the title of this post is prompted by this new AP article headlined "Drugmakers fought state opioid limits amid crisis."  Here is how the article starts:

The makers of prescription painkillers have adopted a 50-state strategy that includes hundreds of lobbyists and millions in campaign contributions to help kill or weaken measures aimed at stemming the tide of prescription opioids, the drugs at the heart of a crisis that has cost 165,000 Americans their lives and pushed countless more to crippling addiction.

The drugmakers vow they're combating the addiction epidemic, but The Associated Press and the Center for Public Integrity found that they often employ a statehouse playbook of delay and defend that includes funding advocacy groups that use the veneer of independence to fight limits on their drugs, such as OxyContin, Vicodin and fentanyl, the narcotic linked to Prince's death.

The industry and its allies spent more than $880 million nationwide on lobbying and campaign contributions from 2006 through 2015 — more than 200 times what those advocating for stricter policies spent and eight times more than the influential gun lobby recorded for similar activities during that same period, the AP and Center for Public Integrity found.

The drugmakers and allied advocacy groups — such as the American Cancer Society Cancer Action Network — also employed an annual average of 1,350 lobbyists in state capitals from Olympia to Tallahassee during that span, when opioids' addictive nature came under increasing scrutiny.  "The opioid lobby has been doing everything it can to preserve the status quo of aggressive prescribing," said Dr. Andrew Kolodny, an outspoken advocate for opioid reform. "They are reaping enormous profits from aggressive prescribing."

Prescription opioids are the cousins of heroin, prescribed to relieve pain. Sales of the drugs quadrupled from 1999 to 2010, rising in tandem with overdose deaths. Last year, 227 million opioid prescriptions were doled out in the U.S., enough to hand a bottle of pills to nine out of every 10 American adults....

Doctors continue to prescribe opioids for ailments such as back pain and headaches, even though studies have shown weak or no evidence that the drugs are effective ways to treat routine chronic pain — and even though they come with the risk of addiction.  In 2007, executives at Purdue, the maker of OxyContin, pleaded guilty to misleading the public about the drug's addictive nature and agreed to pay $600 million in fines.

Lawmakers across the country have started attempting to limit the flood of prescribing and prevent overdoses. In 2012, for example, New Mexico considered a bill to limit initial prescriptions of opioids for acute pain to seven days to make addictions less likely and produce fewer leftover pills that could be peddled illegally. The bill died in the House Judiciary Committee. "The lobbyists behind the scenes were killing it," said Bernadette Sanchez, the Democratic state senator who sponsored the measure.

September 18, 2016 in Drug Offense Sentencing, Offense Characteristics | Permalink | Comments (4)

Any distintive thoughs, dear readers, on notable new video, "Jay Z: 'The War on Drugs Is an Epic Fail'"?

This past week, the New York Times released this "op-ed" and video, which is embedded below, under the headline "Jay Z: ‘The War on Drugs Is an Epic Fail’."  This description of the video is provided by Asha Bandele, a senior director at the Drug Policy Alliance: 

This short film, narrated by Jay Z (Shawn Carter) and featuring the artwork of Molly Crabapple, is part history lesson about the war on drugs and part vision statement. As Ms. Crabapple’s haunting images flash by, the film takes us from the Nixon administration and the Rockefeller drug laws — the draconian 1973 statutes enacted in New York that exploded the state’s prison population and ushered in a period of similar sentencing schemes for other states — through the extraordinary growth in our nation’s prison population to the emerging aboveground marijuana market of today. We learn how African-Americans can make up around 13 percent of the United States population — yet 31 percent of those arrested for drug law violations, even though they use and sell drugs at the same rate as whites.

Notably, this Vox commentary by German Lopez provides a sharp review of this effort via its extended headline: "Jay Z’s viral video about the war on drugs gets mass incarceration all wrong: The video is well argued and beautifully drawn. It’s also completely wrong." 

September 18, 2016 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (3)