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November 5, 2016

"Disenfranchisement and Over-Incarceration"

The title of this post is the title of this new short article authored by Murat Mungan and now available via SSRN. Here is the abstract:

Disenfranchisement laws in many states prohibit convicted felons from voting. The removal of ex-convicts from the pool of eligible voters reduces the pressure politicians may otherwise face to protect the interests of this group. In particular, disenfranchisement laws may cause the political process to push the sentences for criminal offenses upwards.

In this article, I construct a simple model with elected law enforcers who propose sentences to maximize their likelihood of election. I show, with the help of the median voter theorem, that even without disenfranchisement, elections typically generate over-incarceration, i.e. longer than optimal sentences.

Disenfranchisement further widens the gap between the optimal sentence and the equilibrium sentence, and thereby exacerbates the problem of over-incarceration. Moreover, this result is valid even when voter turnout is negatively correlated with people's criminal tendencies, i.e. when criminals vote less frequently than non-criminals.

November 5, 2016 in Collateral consequences, Elections and sentencing issues in political debates | Permalink | Comments (1)

November 4, 2016

Another week and another big batch of clemencies from Prez Obama

As this new USA Today article highlights, "President Obama's decision to grant 72 more commutations Friday — just before getting on Air Force One for a two-city campaign tour of North Carolina — shows how far he's gone in his efforts to "reinvigorate" the pardon process." Here is more:

Just a year ago, it might have been unthinkable for a president to use his constitutional power to shorten sentences so close to an election, regardless of who's on the ballot. "Commutations a week before an election? That's a wow factor of 10!" said P.S. Ruckman Jr., a political scientist who has studied, among other things, the timing of presidential clemency.

Obama has now granted 170 commutations in just the past eight days, bringing the total for his presidency to 944. It's the largest number of commutations in any single year in history, and represents an exceptional "surge" in the president's clemency power in his last year.

"What President Obama has done for commutations is unprecedented in the modern era." White House Counsel Neil Eggleston said in a statement. "The president is committed to reinvigorating the clemency authority, demonstrating that our nation is a nation of second chances, where mistakes from the past will not deprive deserving individuals of the opportunity to rejoin society and contribute to their families and communities."

Most of Obama's pardons have been through his clemency initiative, which seeks to reduce the long mandatory-minimum sentences meted out under sentencing guidelines from the late 1980s through the 2000s....

The frequency with which Obama is now granting commutations has encouraged some advocates who had been urging the president to "vastly increase the pace" of the effort. "The Obama administration has said it was committed to ever more grants, and it seems quite clear that the president’s actions are matching his words," said Cynthia Roseberry, the manager for Clemency Project 2014, a coalition of lawyers working on commutation cases to present to the president....

Of the 72 commutations granted Friday, 17 were for inmates serving life sentences.

November 4, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

"Bridgegate" now a federal sentencing story after two former New Jersey officials convicted on all federal counts after lengthy jury deliberations

As regular readers know, I tend to avoid discussing high-profile criminal prosecutions unless and until they become interesting or important sentencing stories.  And then, perhaps problematically, once they become notable sentencing stories, I tend to discuss the cases too much.  These tendencies are going to be on full display now that the long-running so-called "Bridgegate" scandal this morning because a great sentencing story. This CNN piece explains, while concluding with an accurate and ridiculous sentencing point:

Two former officials linked to New Jersey Gov. Chris Christie's office were found guilty on all charges Friday in connection with the closure of lanes in 2013 on the George Washington Bridge in an act of alleged political retribution, the fallout for which has come to be known as Bridgegate. The news comes after nearly five days of deliberations from the jury.

Bridget Anne Kelly, the former deputy chief of staff to Christie, and Bill Baroni, the former deputy executive director of the Port Authority of New York and New Jersey, both faced seven counts of various charges including conspiracy, fraud, and civil rights deprivation.

The verdict is another setback in Christie's political career, following a controversy that spans nearly three years and put a significant dent in the Garden State Republican's presidential ambitions. Christie is heading planning behind Republican nominee Donald Trump's transition if he wins the presidency. CNN has reached out to the Trump campaign for comment and not yet gotten a response.

Prosecutors allege that the lane closures on the George Washington Bridge were part of a deliberate effort to punish the Democratic mayor of Fort Lee, New Jersey, who did not endorse the Republican incumbent Christie in his 2013 re-election bid.  Emails and text messages released in January of 2014 form the basis of the charges. In one particularly damning email, Kelly told former Port Authority official David Wildstein, "Time for some traffic problems in Fort Lee."  Kelly later said her messages contained "sarcasm and humor," and she claims that she had told Christie about traffic problems resulting from a study a day prior to sending the email....

Kelly and Baroni each face a maximum sentence of 86 years, according to Paul Fishman, the federal prosecutor in the case.

Though I am disinclined to accuse federal prosecutors of "overcharging" unless and until I know all the facts, the simple fact that the conviction on all counts here even presents the possibility of a sentence of 86 years in prison leads me to be more than a bit suspicious of how the feds approached this case. That concern aside, I feel pretty certain predicting (1) that now-convicted federal felons Bridget Anne Kelly and Bill Baroni are unlikely to be sentences to more than a few years in prison, and (2) that federal prosecutors are going to be inclined to ask for a pretty lengthy prison sentence for these two because they had the temerity to contest their guilt and put the feds through the bother of a lengthy trial, and (3) that a low-profile, high-impact legal question for Kelly and Baroni is whether they will be given bail pending what could be very lengthy appeals of their multiple convictions.

I have not followed this case closely enough to even begin to figure out what the advisory guideline calculations might look like in these cases, but I would love to hear from some informed folks about what they think Bridget Anne Kelly and Bill Baroni are now facing, formally or informally, as this long-running scandal becomes a fascinating federal sentencing case.

November 4, 2016 in Campaign 2016 and sentencing issues, Celebrity sentencings, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (10)

"If guilt is proven, should juries always convict?"

The title of this post is the headline of this very interesting new article appearing in my own local Columbus Dispatch.  Here is the context and commentary that follows the headline:

No one denied that Edwin Sobony II savagely beat his wife’s heroin supplier with a baseball bat when the man visited the couple’s Hamilton Township home in December. Sobony admitted to investigators that he did it after repeatedly begging the man to stay away.  At his trial in September on charges of felonious assault, his defense attorney told jurors that Sobony’s actions were “felonious as hell.”

Yet the attorney, Sam Shamansky, encouraged the jury to acquit his client anyway. “He assaulted him with this bat,” Shamansky said, holding the weapon aloft during his closing argument.  “And you say to yourself, ‘You know what, that’s OK. That’s what I would have done.’ Because no one can challenge that opinion. You can go back in that jury room and believe that and vote for it and nobody can touch you. That’s the beauty of the system. It prevents these kinds of prosecutions from ruining lives.”

Shamansky also told jurors that they could acquit by finding that Sobony acted in defense of himself and his family. But he acknowledged last week that, in case they rejected the self-defense claim, he was trying to persuade them that they could employ what is known as jury nullification to find his client not guilty.

Jury nullification occurs when jurors acquit a defendant, despite the prosecution proving its case beyond a reasonable doubt, because they believe the law is unjust or has been unjustly imposed.  It appeared to happen last week in Oregon, where a jury acquitted seven defendants who had armed themselves and occupied a national wildlife refuge during a 41-day standoff with federal authorities.

Shamansky’s arguments on behalf of Sobony didn’t work. The jury deliberated for less than three hours before finding the mail carrier guilty of one count of felonious assault. Sobony, 38, is scheduled to be sentenced Wednesday by Franklin County Common Pleas Judge Charles Schneider.

Not everyone agrees that nullifying a law is an appropriate option for juries. Ric Simmons, a professor of law at Ohio State University’s Moritz College of Law, said jurors take an oath to follow the law and return a conviction if the prosecution meets its burden of proof. “In my view, jurors are under a legal obligation to follow the law,” he said.

However, jurors can’t be punished for their decisions, regardless of their reasoning, and their verdicts can’t be appealed. “So jury nullification exists, and we can’t do anything about it,” said Simmons, a former prosecutor.

Others say jury nullification is a time-honored tradition in the United States and was seen by the Founding Fathers as a check on abuse or overreach by the government. It was used by pre-Civil War juries to acquit those charged with violating the Fugitive Slave Act. More recently, it’s been used to acquit those charged with what juries consider antiquated drug-possession laws.

“Jury nullification has played a huge role in the development of our laws,” said Clay S. Conrad, author of “Jury Nullification: The Evolution of a Doctrine.” “For instance, it’s why we have a range of charges for murder, from manslaughter to capital murder. Juries didn’t want everyone to get the death penalty.”

Conrad, a lawyer based in Houston, said police, prosecutors and judges shouldn’t be the only ones allowed to use discretion in how they apply the law. “If a jury believes the prosecution’s idea of justice is wrong, they should have every right to reflect that with their verdict,” he said. “I think the problem we have with getting more juries to nullify in cases where it is appropriate is because so many people are unwilling to challenge authority.”

The leading advocacy group for jury nullification is the Fully Informed Jury Association, a nonprofit organization founded in 1989 in Montana. The group works to educate the public about jury nullification and says that juries should be informed about it as part of jury instructions. “We’re trying to overcome a lack of information, but it’s more than that,” said Kirsten Tynan, the group’s executive director. “Jurors are almost always going to be misinformed. They’re told by the court that they must follow the law as it’s given to them. “We have to educate people that what they’re being told isn’t necessarily true.”

I got into a bit of a verbal fight with my friend and colleague Professor Ric Simmons about this issue just earlier this week (and thus I love seeing him quoted on this front).  Readers may not be too surprised to hear that I am generally a fan and supporter of jury nullification.  Indeed, I generally believe that juries should be instructed about their power and right to nullify, though I also believe that prosecutors should be able to explain to jurors why they think broad use of nullification powers could have an array of potentially harmful societal consequences.

In this setting and in many others dealing with jury trial rights and procedures, I suspect views are often influenced by one's broader perspectives on the operation of present (and future?) criminal justice systems (both personally and professionally).  I have long viewed US criminal justice systems as bloated and inefficient, and thus I have always been inclined to embrace the jury's role as a critical "democratic" check on the criminal justice work of legislative and executive branches. (The late Justice Scalia's writings in cases like Blakely and other jury-respecting rulings have reinforced and enhanced these perspectives in recent years.) My colleague Professor Simmons obviously takes a different view, and I suspect he will not be surprised to know that I believe his views are at least somewhat influenced by his own professional history before he became an academic.

November 4, 2016 in Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

"The lock-’em-up mentality for white-collar crime is misguided"

The title of this post is the subheadline of this recent Economist piece, which reviews a couple notable new books about white-collar crimes and punishments. Here are excerpts:

One thing right-wing populists and left-wing progressives can agree on is that society is too soft on white-collar crime. Conservatives abandon their admiration for business when it comes to “crooked bankers”.  Left-wingers forget their qualms if locking up “corporate evil-doers”.  Hillary Clinton’s line that “there should be no bank too big to fail but no individual too big to jail” would go down equally well at a Donald Trump rally.

But is society really soft on corporate wrongdoing? And would locking up bankers and businessmen and throwing away the key really solve any problems?  Two new books try to inject reason and evidence into a discussion more commonly driven by emotion and hearsay: “Why They Do It: Inside the Mind of the White Collar Criminal” by Eugene Soltes, of Harvard Business School, and “Capital Offenses: Business Crime and Punishment in America’s Corporate Age” by Samuel Buell, the lead prosecutor in the Enron case, who now teaches at Duke University.

Messrs Soltes and Buell both demonstrate that America is getting tougher on business crime. Between 2002 and 2007 federal prosecutors convicted more than 200 chief executives, 50 chief financial officers and 120 vice-presidents. Those at the heart of two big corporate scandals in 2001 and 2002 received harsh treatment: Bernard Ebbers, WorldCom’s chief executive was sentenced to more than 20 years without the possibility of parole — the equivalent of a sentence for murder in many states — and Kenneth Lay, Enron’s former boss, died awaiting sentence.  Between 1996 and 2011 the mean fraud sentence in federal courts nearly doubled, from just over a year to almost two years, as the average sentence for all federal crimes dropped from 50 months to 43.

America is constantly giving way to the temptation to punish white-collar criminals more severely: the Sarbanes-Oxley act (2002) and the Dodd-Frank bill (2010) both include measures designed to punish corporate types more severely. Other countries are moving in the same direction.... The global war on white-collar crime is giving rise to a new global industry: advisers such as Wall Street Prison Consultants and Executive Prison Consultants specialise in helping white-collar criminals adjust to life behind bars.

Prosecutorial zeal does not always result in convictions, but that is because prosecutors face some difficult trade-offs — including respecting the rights of some of the world’s most unpopular people.... The DoJ could bring far more individual prosecutions. But most corporate crime is the result of collective action rather than individual wrongdoing — long chains of command that send (often half-understood) instructions, or corporate cultures that encourage individuals to take risky actions. The authorities have rightly adjusted to this reality by increasingly prosecuting companies rather than going after individual miscreants.

Prosecuting firms may not have the smack of justice that populists crave: you can’t imprison a company, let alone force it to do a humiliating “perp walk” — being paraded in handcuffs in public. And the people who end up paying the fines are shareholders rather than the executives or employees who actually engaged in the misconduct. But it saves the taxpayer a great deal of money: the DoJ routinely asks firms to investigate themselves on pain of more serious punishment if they fail to do so.  It also advances the cause of reform, if not retribution: companies are routinely required to fix their cultures and adjust their incentive systems.

Populists like to think that there is a bright line between right and wrong: overstep it and you should go directly to jail.  But a great deal of wealth-creation takes place in the grey area between what is legal and questionable.  Some of the world’s greatest business people have overstepped the mark. Bill Gates was hauled up before the authorities at Harvard University when he was a student for using computers without permission. Steve Jobs participated in backdating stock option-based compensation at Apple, including his own, in order to inflate the options’ value....

The strongest populist argument is about double standards: it is wrong to let the rich get away with a slap on the wrist while poor youths are put in prison for possessing an ounce of cocaine. Messrs Soltes and Buell have clearly demonstrated that the rich aren’t getting away with a slap.  But even if they were, this would argue for reforming criminal law for the poor rather than extending the lock-’em-up mentality to the rich.  Society should by all means punish white-collar criminals if they have obviously committed crimes and imposed harm.  But it should resist the temptation to criminalise new businesses testing the rules.  And it should certainly resist the temptation to single people out for harsh punishment simply because they are rich and successful.

A few recent related posts:

November 4, 2016 in Offense Characteristics, Purposes of Punishment and Sentencing, Race, Class, and Gender, White-collar sentencing | Permalink | Comments (2)

Supreme Court (surprisingly?) grants last-minute stay of Alabama execution

As reported in this Washington Post article, the "Supreme Court stayed the execution Thursday night of an Alabama inmate who had been scheduled to die by lethal injection." Here is more about this interesting development and its context:

This marked the seventh time that Thomas D. Arthur — who was convicted of murder and is the second-oldest inmate on Alabama’s death row — had faced an execution date that was called off, according to the office of Alabama Attorney General Luther Strange. Arthur’s execution was scheduled for Thursday evening, but the uncertainty stretched into the night as officials in Alabama waited for the Supreme Court to consider his appeals.

Supreme Court Justice Clarence Thomas — the Supreme Court justice assigned to the 11th Circuit, which includes Alabama — said in an order shortly before 10:30 p.m. that he was halting the execution until he or the other justices issued another order. Thomas referred the case to the full court, and shortly before midnight, the justices issued an order granting Arthur’s stay request. The order included a statement from Chief Justice John G. Roberts Jr. explaining that while he did not believe this case merited a review from the Supreme Court, he had decided to vote for a stay anyway as a courtesy to his colleagues.

Roberts wrote that four of the other justices had voted in favor of staying the execution. “To afford them the opportunity to more fully consider the suitability of this case for review, including these circumstances, I vote to grant the stay as a courtesy,” he wrote. Roberts said Thomas and Justice Samuel Alito would have rejected the request; he did not explain why an eighth justice was not involved in the vote.

According to the court’s order, Arthur’s stay request would remain granted until the justices decide whether to consider the case. If they decide against it, the stay will be terminated. “We are greatly relieved by the Supreme Court’s decision granting a stay and now hope for the opportunity to present the merits of Mr. Arthur’s claims to the Court,” Suhana S. Han, an attorney for Arthur, said in a statement.

Arthur, 74, was sentenced to death for the 1982 killing of Troy Wicker, described in court records as the husband of a woman with whom Arthur had an affair. According to a summary of the case from the Alabama Supreme Court, Arthur was serving a life sentence for fatally shooting a relative of his common-law wife and, while on work release, had an affair with Wicker’s wife before killing Wicker. After three trials, Arthur was sentenced to death. One of his executions was called off after another inmate confessed to the killing, though a judge ultimately dismissed that inmate’s claim.

In appeals filed Thursday, Arthur’s attorneys argued that Alabama’s “deficient lethal injection protocol” would have had “torturous effects,” pointing to the state’s planned use of the sedative midazolam, which has been used in at least three executions that went awry. Last year, the Supreme Court upheld Oklahoma’s execution protocol in a case that hinged in part on that sedative.

Arthur’s court filings also argued that the state should execute him by firing squad, arguing that “execution by firing squad, if implemented properly, would result in a substantially lesser risk of harm” than the proposed lethal injection method. Strange’s office, in its response, noted that under Alabama state law, the Department of Corrections is only allowed to carry out executions by injection and electrocution.

Strange criticized the justices for their action late Thursday. “With all due respect to the Supreme Court, tonight’s order undermines the rule of law,” Strange said in a statement. “While I agree with Chief Justice Roberts that ‘This case does not merit the Court’s review,’ in my view, there is no ‘courtesy’ in voting to deny justice to the victims of a notorious and cold-blooded killer.”...

There have been 17 executions in the United States so far this year, according to the Death Penalty Information Center, and the country is on pace to have its fewest executions in a quarter-century. Arthur’s was one of four executions scheduled through the end of 2016, according to the center.

November 4, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

November 3, 2016

Notable new analysis of marijuana arrest rates and patterns acorss the nation

This new post at Marijuana.com, under the headline "Marijuana Decrim Doesn’t Stop Discrimination, New Data Shows," appears to be reporting and analyzing some important new data on the impact of marijuana reform on some key criminal justice metrics.  Here are excerpts from the lengthy entry:

Marijuana arrest rates are plummeting as a growing number of far-reaching state policy reforms like legalization and decriminalization are enacted; however, stark racial disparities in cannabis law enforcement remain, a new Marijuana.com analysis of policing data uncovers. The data provided an illuminating follow-up to the 2013 American Civil Liberties Union report which made headlines by showing that, while African Americans and whites use marijuana at roughly equivalent rates, blacks are much more likely to be arrested for it.

Public records requests submitted via MuckRock to all 50 states for data pertaining to marijuana-related arrests show, on average, a significant decrease in possession offenses in the years since the publication of the ACLU report, which was based on 2010 data. But despite the apparent shift in focus away from the enforcement of marijuana possession laws, the racial bias in arrest rates uncovered by the ACLU remains intact.

The new data also revealed that decriminalization measures may have become an unintentional barrier to transparency in marijuana law enforcement. The classification of marijuana as a less serious offense in many states has resulted in a deprioritization of tracking critical information regarding who is stopped, and how often.

Among the key findings of the new Marijuana.com analysis are:

  • In New York, despite significant drops in arrests for misdemeanor possession of marijuana, black people are more than 13 times as likely as white people to be arrested for it.
  • Despite significant drops in overall arrest rates, Florida increased the number of people arrested for marijuana possession since 2010.
  • States with a large racial disparity in arrests – New York, North Carolina and South Carolina – also tend to be the states with higher overall arrest rates.
  • The largest drops in overall arrest rates since 2010 occurred in Nevada, Alaska, Connecticut and New York.

In all, data were received from 25 states; 12 states provided arrest numbers for local and state police — many not filtered by agency — while 13 either separated local and state police data or provided numbers only for state police. The remaining states for which data were not obtained either do not keep track of marijuana offenses as distinct from other drug-related crimes, do not keep track of marijuana offenses on a state level or charged prohibitively high fees for the same data which other states provided for free.....

The data we are able to report here do not tell the whole story of marijuana users’ clash with the law in this age of decriminalization and legalization. Public opinion toward marijuana has shifted dramatically, particularly within the last several years. A few states have legalized possession of small amounts, while others have instead opted to reclassify possession of similar amounts from felonies to misdemeanors or from misdemeanors to civil infractions, to reflect this change in perception.

While this shift has been a laudable victory for advocates pushing for full legalization of recreational use, it has also resulted in increased difficulty in tracking important data. Finding the answer to a relatively simple question, such as, “How many people in this state were caught with marijuana in the year 2014?” has become all the more arduous. Researchers are forced to track down data for misdemeanors and felonies at the state level in addition to approaching individual law enforcement agencies directly for data on civil infractions, hoping they keep track of those numbers at all.

Consequently, the data reported here reflect only the marijuana possession offenses which are reported at the state levels; the number of civil infractions in states which have decriminalized possession are evidenced only by the significant drop in arrest rates (misdemeanors) following such a change in the law....

Taken as a whole, the new numbers obtained by Marijuana.com add to the debate about the effects of both prohibition and the decriminalization policies that advocates have succeeded in enacting in a growing number of jurisdictions, and the data (or in some cases lack thereof) shed light on the difficulty in tracking many of those effects.

I find this report and its data quite interesting, but it is a bit opaque and ultimately further convinces me that one of the first (and non-controversial?) priorities for the new federal administration should be to try to collect and analyze data on modern marijuana enforcement nationwide . Of course, I think a priority for everyone interested in the marijuana reform space must include checking out my other blog where you can find these recent posts on various related topics:

November 3, 2016 in Data on sentencing, Drug Offense Sentencing, Marijuana Legalization in the States, National and State Crime Data, Pot Prohibition Issues | Permalink | Comments (0)

"A Proposal to Restructure the Clemency Process — The Vice President as Head of a White House Clemency Office"

The title of this post is the title of this interesting new essay authored by Paul Larkin and now available via SSRN. Here is the abstract:

The need for reconsideration of the federal clemency process is a real one, and there is a consensus that the Justice Department should no longer play its traditional doorkeeper role. Using the vice president as the new chief presidential clemency adviser offers the president several unique benefits that no other individual can supply without having enjoyed a prior close personal relationship with the chief executive.

Whoever is sworn into office at noon on January 20, 2017, as the nation’s 45th President should seriously consider using as his principal clemency adviser the person who was sworn into the vice presidency immediately beforehand. The president, clemency applicants, and the public might just benefit from that new arrangement.

November 3, 2016 in Clemency and Pardons, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

Could puppies be the "magical" elixer that can make modern correctional institutions actually correctional?

BonpFuOIUAEiRnkThe question in the title of this post is prompted by this lengthy new local article from California headlined "California prisons struggle to get inmates to change. Are puppies the ‘magical’ answer?." The piece is about a lot more that has been going on in California prison policy and practice than just a shaggy-dog story. But the article's headline and "softer" contents gives me an excuse to post a puppy picture of the dog breed that I share my life with, and I like hearing about prisoners getting some dog-gone good puppy vibes as well. Here are excerpts:

When a pair of puppies stepped into a state prison’s highest security yard on a scorching summer day, dozens of felons fretted that the Labradors would singe their feet on hot pavement. “Pick them up! You’ve got to carry them. Watch out for their paws!” inmate Andre Ramnanan remembers his worried peers shouting at him.

Three months later, Ramnanan says the dogs still have a “magical” effect on the yard at Mule Creek State Prison in Amador County. Sometimes, they even defuse fights.  “I’ve seen fights almost break out and then stop because someone says, ‘Wait, there’s a dog here,’ ” said Ramnanan, 43.

Ramnanan, serving life without parole for participating in a murder and kidnapping 24 years ago, is one of a handful of inmates enrolled in a program that gives prisoners a shot at redemption by asking them to nurture service dogs that one day will comfort wounded veterans or children with autism. 

The program, called Tender Loving Canines, is among the wealth of new and restored rehabilitation courses that are popping up in California state prisons since Gov. Jerry Brown began boosting programs that help inmates prepare to re-enter society. Today, those programs are giving inmates more opportunities to study, work or pursue therapy than they were offered a decade ago when the state’s prisons were severely overcrowded.

They also provide a template for the reforms Brown is advocating with Proposition 57, his initiative to slim the state’s prison population by empowering parole boards to grant early releases for nonviolent inmates who better themselves while in confinement.

Inmates and their loved ones are following the measure closely. On a recent visit to Mule Creek State Prison, some inmates said it may speed their release. “I wanted to join the program because it was helping the community, and I want to get back to the community,” said inmate Maurice Green, 37, who is participating in the service dog program. “Hopefully, if Prop. 57 passes, it’ll be next year.”...

Mule Creek State Prison contains about 3,500 inmates. It’s reserved for inmates who likely would be harmed by prisoners at other institutions, such as corrupt cops, felons who’ve separated themselves from gangs and sex offenders. It also houses inmates with special medical needs, such as prisoners who use wheelchairs. In May, it opened two new wings that will allow it to house about 1,500 more inmates. So far, the $344 million project is at half capacity while the prison hires more medical and mental health workers to staff the new wards.

Like other prisons, it was extremely overcrowded before a series of court rulings beginning in 2009 compelled the state to direct thousands of new inmates to county jails. Brown as attorney general and earlier in his term as governor unsuccessfully appealed those decisions. Since 2009, the state’s prison population has fallen from about 170,000 inmates to fewer than 129,000.

When Mule Creek was at its most-crowded, inmates slept in gymnasiums and in activity rooms, Lt. Angelo Gonzalez said. Back then, the prison didn’t have room for the rehabilitation programs that inmates are using now. “We had so many inmates that the focus was on providing the basic necessities,” said Mule Creek Warden Joe Lizarraga.

Lately, Mule Creek has seen more inmates joining anger management and conflict resolution programs that Lizarraga has been able to fund through grants that support prisons in rural communities. Statewide, Brown has escalated funding for inmate rehabilitation from $355.2 million in 2011 to $481.5 million this year.

Dogs are at the heart of two of Mule Creek’s most popular programs. In the high-security yard, five young dogs are attached to inmates around the clock in the program that trains them to become service animals. They’re stars of the yard, threading crowds of well-tattooed inmates as they follow their mindful trainers. In a lower-security wing, stray dogs from Amador County spend time with inmates until they become socialized and ready for adoption through local shelters.

Last week, inmate James Hardy had a breakthrough when a rambunctious pit bull he’s been minding suddenly started playing with a chihuahua. Until then, the two dogs had been enemies. He identifies with the strays, recognizing that he, too, could use some help figuring out how to live better outside prison.

“They came from a rescue center. They’re a lot like us. I see us like we’re rescues, too,” said Hardy, 40, of Sacramento, who has been in and out of prison for the last 20 years. He’s serving seven years for vehicle theft.

Cherie Flores, one of the service dog training instructors from Tender Loving Canines, said inmates and puppies are a good match. She visits twice a week, coaching the inmates on how to prepare the dogs for a lifetime of service. “This is amazing for them and for the dogs,” she said. “These guys have nothing but time and structure. Puppies need time and structure. This is everything for them.”

Lizarraga makes a point to spend time with the service dogs in Tender Loving Canines. Some members of his staff had reservations about putting the dogs in the prison’s highest security wing. He thought it was worth a chance, to see if the dogs would change the atmosphere. “It’s our most violent yard. What better place to put a program that had the potential to calm the yard down? It’s done a tremendous job,” he said.

Ramnanan said he joined the program in part because he wanted to “atone” for the 1992 murder that sent him to prison. In the past, he used to sit in his cell and “be angry at the world.” Lately, he pays close attention to a puppy named Amador, turning a fan on her when she pants at night. “It’s a 24-hour-a-day job,” he said. “You find an attachment and someone needs you. It’s a good feeling.”

November 3, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

"Black Studies and the Fight Against Mass Incarceration"

The title of this post is title of this great public event talking placing in a few weeks on my own campus, which is to begins with a showing of Ava DuVernay’s documentary 13th  (previously promoted here) and then includes a terrific-looking panel discussion.  Here is the official description: 

Join professor and civil rights lawyer Michelle Alexander for a screening of Ava DuVernay’s new documentary 13th, which explores the historical foundations and present-day structures of mass incarceration in the United States. After the film, Alexander will lead a panel discussion addressing the importance of Black Studies both for understanding the origins of systems of racial oppression and acquiring the tools needed to effectively combat them. The panel will feature faculty from the Department of African American and African Studies and the Moritz College of Law as well as student activists and community organizers.

A reception with complimentary food and drink will start at 5 PM in Heirloom Café, and the screening will begin at 6 PM.

A few of many, many prior related posts:

November 3, 2016 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Death row defendants come up just short in big circuit panel rulings about lethal injection protocols

Though I am saddened that the lovable baseball club from Cleveland came up just short against a lovable baseball club from Chicago very early this morning, there are some death row defendants and lawyers who I suspect are much more troubled by a much more serious legal matter in which their arguments to federal circuit panels came up just short yesterday.   Specifically, two court panels, one in the Sixth Circuit and one in the Eleventh Circuit, yesterday handed down two split 2-1 rulings against death row defendants in Ohio and Alabama.  Here are links to the rulingsand the start of the majority opinions:

Phillips v. DeWine, No. 15-3238 (6th Cir. Nov. 2, 2016) (available here):

In this appeal, a group of inmates sentenced to death in Ohio challenge the constitutionality of the State’s newly enacted statutory scheme concerning the confidentiality of information related to lethal injection. The district court dismissed some of their claims for a lack of standing and the remainder for failure to state a claim. For the reasons stated below, we AFFIRM.

Arthur v. Alabama DOC, No. 16-15549 (11th Cir. Nov. 2, 2016) (available here):

It has been 34 years since Thomas Arthur brutally murdered Troy Wicker. During 1982 to 1992, Thomas Arthur was thrice tried, convicted, and sentenced to death for Wicker’s murder.  After his third death sentence in 1992, Arthur for the next 24 years has pursued, unsuccessfully, dozens of direct and post-conviction appeals in both state and federal courts.

In addition, starting nine years ago in 2007 and on three separate occasions, Arthur has filed civil lawsuits under 42 U.S.C. § 1983 challenging the drug protocol to be used in his execution.  This is Arthur’s third such § 1983 case, and this current § 1983 case was filed in 2011.  For the last five years Arthur has pursued this § 1983 case with the benefit of lengthy discovery. The district court held a two-day trial and entered two comprehensive orders denying Arthur § 1983 relief.  Those orders are the focus of the instant appeal.

After thorough review, we conclude substantial evidence supported the district court’s fact findings and, thus, Arthur has shown no clear error in them.  Further, Arthur has shown no error in the district court’s conclusions of law, inter alia, that: (1) Arthur failed to carry his burden to show compounded pentobarbital is a feasible, readily implemented, and available drug to the Alabama Department of Corrections (“ADOC”) for use in executions; (2) Alabama’s consciousness assessment protocol does not violate the Eighth Amendment or the Equal Protection Clause; and (3) Arthur’s belated firing-squad claim lacks merit.

November 3, 2016 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

November 2, 2016

"Judicial Sentencing Error and the Constitution"

The title of this post is the title of this notable new paper authored by Reid Weisbord and George Thomas now available via SSRN. Here is the abstract:

Much recent scholarship has sharply criticized the pervasive phenomenon of wrongful convictions, but the literature has overlooked an important related injustice: inaccuracy in criminal sentencing. This Article provides the first comprehensive scholarly treatment of judicial sentencing error, which has become widespread in the modern era of both ad hoc revision to criminal codes and increasingly complex criminal sentencing systems that often lack internal coherence or sensible statutory organization.

Although nearly always the product of human error, the problem of judicial sentencing error is more aptly characterized as systemic because sentencing judges often face ever-changing, overlapping statutory requirements contained in separate parts of the criminal code. We identify both the source and harmful consequences of judicial sentencing error, and then examine constitutional principles implicated by the untimely correction of an erroneous sentence.

Focusing particularly on a defendant’s interest in finality, we argue that the constitutional guarantees of substantive due process and protection against double jeopardy under the Fifth Amendment should be construed to limit the time to correct an erroneously lenient sentence, with the Double Jeopardy Clause supplying the more potent limiting principle and objective legal standard. We conclude that — by according respect for principles of finality in criminal sentencing — the law could create an effective institutional incentive for the State to ascertain the correctness of sentencing orders at or near the time of punishment, thereby preventing the harm and injustice that occur when the defendant’s reasonable expectation of finality has been frustrated for the legitimate but not indomitable sake of accuracy.

November 2, 2016 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Advisory Nevada commission advises the creation of a sentencing commission to create advisory sentencing guidelines

This new local article, headlined "Panel calls for commission to set Nevada sentencing guidelines for criminal offenses," reports on a recommendation by one commission to create another commission to make sentencing recommendations. Here is how the article begins:

A criminal justice advisory panel agreed Tuesday to recommend that state lawmakers establish a special commission to set statewide sentencing guidelines for crimes.  Creation of a sentencing commission, which would work to bring consistency to sentencing practices statewide, was one of several recommendations of the Advisory Commission on the Administration of Justice for consideration by the 2017 Nevada Legislature.

The commission, led by state Supreme Court Justice James Hardesty, has met numerous times since the last legislative session to scrutinize Nevada’s criminal justice system and recommend reforms.  Hardesty envisioned a sentencing commission modeled after one adopted in Connecticut that considers a crime’s severity and a defendant’s criminal history.  Judges could deviate from recommended sentencing guidelines but would have to explain their reasoning, which would be subject to possible appellate review.

He said it would make the criminal justice system fairer and reduce racial disparity. “This is something that we can do now,” Hardesty said. “This is something the Legislature can do now.”

He noted a previous study that showed a wide gap in sentences around the state. Some judges, he said, sentenced defendants to prison 30 percent of the time and other defendants more than 60 percent of the time for similar crimes.

November 2, 2016 in State Sentencing Guidelines, Who Sentences? | Permalink | Comments (1)

How should Californians, as taxpayers, think about the state's competing death penalty initiatives?

The question in the title of this post is prompted by this notable new Los Angeles Times article headlined "Will ending the death penalty save California more money than speeding up executions?". Here are excerpts:

Past efforts to repeal the death penalty in California have centered on moral or ethical objections.  This year, proponents of Proposition 62, which would replace the punishment with life in prison without parole, are focusing on economics. Prominent supporters of the measure have repeatedly pointed out that the state’s taxpayers have spent $5 billion on the executions of only 13 people in almost 40 years. Online ads have urged voters to end a costly system that “wastes” $150 million a year.

“Sometimes, something is so broken it just can’t be fixed,” a voiceover says in one commercial, as a blue-and-white china vase shatters to the ground. “Let’s spend that money on programs that are proven to make us safer,” a crime victim pleads in another.  

But as voters weigh two dueling death penalty measures on the Nov. 8 ballot — one to eliminate executions, another to speed them up — researchers are at odds over the actual costs and potential savings of each. Independent legislative analysts, meanwhile, believe Proposition 62 could save taxpayers millions, while concluding that the fiscal impact of Proposition 66’s attempt to expedite death sentences is unknown.

Death penalty cases are often the most expensive in the criminal justice system because the costs associated with capital punishment trials and the incarceration of death row offenders are vastly higher. The expenses begin to accrue at the county level. Capital cases require two trials, one to decide the verdict and another the punishment. They require more attorneys, more investigators, more time and experts and a larger jury pool.

The costs grow as the state must pay to incarcerate inmates during a lengthy appeals process: The average cost of imprisoning an offender was about $47,000 per year in 2008-09, according to the nonpartisan state legislative analyst’s office. But housing a death row inmate can lead to an additional $50,000 to $90,000 per year, studies have found.

Paula Mitchell, a professor at Loyola Law School who is against the death penalty and has advised the Yes on Prop. 62 campaign, puts the cost of the entire death penalty system since 1978 at about $5 billion. That figure, updated from data compiled in a 2011 report, includes 13 executions since the death penalty was reinstated through a 1978 ballot measure and suspended in 2006 due legal challenges over its injection protocols. It also includes the cost of trials, lengthy appeals and the housing of nearly 750 inmates on California’s death row. The initial study estimated taxpayers spent $70 million per year on incarceration costs, $775 million on federal legal challenges to convictions, known as habeas corpus petitions, and $925 million on automatic appeals and initial legal challenges to death row cases.

Mitchell and other researchers said Proposition 62, which would retroactively apply life sentences to all death row defendants, would save the state most of that money. “It is sort of a fantasy that this system is ever going to be cost efficient,” said Mitchell, who has been named the university’s executive director of the Project for the Innocent.

But proponents of Proposition 66 argue the system can be reformed. The ballot measure would designate trial courts to take on initial challenges to convictions and limit successive appeals to within five years of a death sentence. It also would require lawyers who don’t take capital cases to represent death row inmates in an attempt to expand the pool of available lawyers.

In an analysis for its proponents, Michael Genest, a former budget director for Gov. Arnold Schwarzenegger, contends such changes would save taxpayers $30 million annually in the long run. Proposition 62, in comparison, would cost taxpayers more than $100 million due to this “lost opportunity” over a 10-year period.

But independent researchers with the legislative analyst’s office found plenty of factors could increase or reduce the chances of either ballot measure saving taxpayers money. Overall, they found Proposition 62 was likely to reduce net state and county costs by roughly $150 million within a few years.

The actual number could be partially offset if, without the death penalty, offenders are less inclined to plead guilty in exchange for a lesser sentence in some murder cases. That could lead to more cases going to trial and higher court costs, according the legislative office. Yet over time, the state could see lower prison expenses, even with a larger and older prison population, since the costs of housing and supervising death row inmates is much higher than paying for their medical bills, analysts said.

“If Prop. 62 goes into effect, they can be housed like life-without-parole inmates, some in single and some double cells,” legislative analyst Anita Lee said. “It would fall to [the California Department of Corrections and Rehabilitation] to do an evaluation of risks.”

Calculating the fiscal impact of Proposition 66 is much more complicated, the office found, as the measure leaves more open questions on implementation, such as how the state will staff up with additional private attorneys. Legislative analysts said the costs in the short term are likely to be higher, as the state would have to process hundreds of pending legal challenges within the new time limits. Just how much is unknown, but the actual number could be in the tens of millions of dollars annually for many years.

Also unknown, analysts said, is the proposition’s effect on the cost of each legal challenge. The limits on appeals and new deadlines could cut the expenses if they result in fewer, shorter legal filings that take less time and state resources to process. But they could increase costs if additional layers of review are required for habeas corpus petitions, the initial legal challenges in criminal cases, and if more lawyers are needed....

Mitchell said it was “pretty much delusional” to expect Proposition 66 to ever save the state money. For that to happen, she said, California would have to execute “one person every week, 52 people a year for the next 15 years, assuming they are all guilty.” But Kent Scheidegger, author of the proposition and legal director of the Criminal Justice Legal Foundation, argued the legislative office’s numbers were skewed, while security costs for dangerous inmates would likely have to remain just as high. “They don’t become any less dangerous if you change their sentence from death row to life without parole,” he said.

UPDATE: The article excerpted here has generate this series of notable posts (by a number of authors) at Crime & Consequences:

November 2, 2016 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (1)

Election 2016: astute views "this Year’s Soft-on-Crime Attack Ads"

Maurice Chammah has this effective new article at The Marshall Project taking a look at "Campaign ads in the age of criminal justice reform." Here are excerpts from how it starts and ends:

It’s campaign season, which means the long shadow of Willie Horton is with us yet again. George H.W. Bush’s 1988 attack ad, which blamed his Democratic opponent Michael Dukakis for releasing a man who went on to commit more violent crimes, has become shorthand for a style of political advertising that continues to reappear every cycle. This year is no different.

But there are a few new approaches to these ads that may reflect larger trends in the politics of criminal justice....

“Most of these spots flinch when it comes to going for a pure fear appeal, à la Willie Horton,” says Robert Mann, a journalism professor at Louisiana State University who wrote a book on the 1964 “Daisy” ad. Mann noted that an attack ad about Democratic Connecticut state Sen. Mae Flexer — which criticizes her vote to repeal the state’s death penalty and support an early release program — “was careful to show several non-minority faces.” The attack on Kaine also features primarily white criminals.

This year, many ads in the Horton tradition focus on the subject of rape, perhaps in an attempt to appeal to women voters. In Houston, Texas, an ad accuses the incumbent district attorney, Republican Devon Anderson, of jailing a rape victim to ensure she would testify. Republican ads against North Carolina gubernatorial candidate Roy Cooper and Catherine Cortez Masto, who is running for a Senate seat from Nevada, accuse each of them of putting a low priority on testing rape kits and solving rape crimes in general.

Ads in North Carolina are targeting Deborah Ross, the Democratic challenger to Sen. Richard Burr, for her efforts on behalf of a 13-year-old named Andre Green, who was charged with sexually assaulting his 23-year-old neighbor while the victim’s toddler was in the room. In 1994, as an ACLU lobbyist, Ross advocated against placing Green in an adult court. “If Deborah Ross had her way, Green would be on our streets,” the ad says. In response, Ross released her own ad attacking Burr for being soft on sex criminals. The ad points out that Burr voted against the Violence Against Women Act, which includes funding for rape crisis centers, and voted against funding the federal sex offender registry (in truth, his vote was against a much broader budget bill).

Jonathan Davis, a partner at Northside Research + Consulting, an opposition research firm in New York, sees the trend as a tactical appeal to women in an election where their votes are not as predictable. Hillary Clinton “is poised to win a historic percentage of Republican women,” he says. “There is a large block of female voters in key states who know they're backing Clinton for president, but are still open to persuasion in down-ballot races.”

Some of those down-ballot candidates, including district attorney hopefuls in Florida and Colorado, are also trying different strategies with their advertising: they are using the language of criminal justice reform, calling for rehabilitation rather than prison for minor crimes. Colorado Democrat Beth McCann is running an ad featuring Francisco Gallardo, a former gang-member who now works with at-risk youth. In the ad, Gallardo says, "We need something that's more comprehensive, that's not just about building jails, but promoting the front end, building more empathy, more education, more opportunities...the reason Beth [McCann] can make those hard choices is she’s connected in the community."

But at the end of the day, despite these newer trends, the soft-on-crime attack endures. The best proof of its power is that even critics of mass incarceration are willing to use it. The most surprising Horton-esque attack this season comes from the suburbs of Denver, where a radio ad is targeting incumbent district attorney Peter Weir. The ad accuses Weir, a Republican, of signing off on a plea deal granting probation for Michael David Miller, a rapist with numerous alleged victims. (Weir told The Marshall Project that Miller’s crime would have been difficult to prove before a jury, and his office pursued Miller more aggressively than other jurisdictions where accusations were made.)

The ads were paid for by a political action committee linked to billionaire George Soros, who is actually trying to bolster the campaigns of reformers (Soros, through a spokesman, declined to comment). Soros’s chosen candidate, Jake Lilly, is running his own, separate ads promoting reform; he calls for treatment for people with addiction and mental health issues. Weir, the incumbent being attacked, is broadly in agreement; he has promoted the use of specialty courts to divert drug offenders from jail time. Lilly spoke out against the Soros-funded ads that were designed to help him. “I don’t approve of the tone,” he told a local reporter. “I don’t approve of the negativity.”

November 2, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (0)

November 1, 2016

A timely (and heartwarming?) story of felon enfranshisement

Particularly during an election season that seems almost intentionally designed to make everyone too depressed to want to vote, this local story from Tennessee is about as close to a "feel-good" election season sentencing story as we are likely to find.  The story is headlined "Facing felony, he asked to vote first," and here are the highlights:

A young man went to federal court last week to plead guilty to a felony. He knew he was facing up to 20 years in prison.  He knew he was about to lose his freedom.  He didn't realize he was about to lose his right to vote.  "I've been wanting to vote all my life," said Reginald Albright, who turned 20 this year.

When he was a kid, Albright would go with his grandfather to a polling place and wait in the car. "You're too young to vote now," his grandfather would tell him. That only made Albright more eager to vote.

Four years ago, he wished he could have gone with his mother to Mt. Zion Baptist Church to vote for President Barack Obama.  He was 16, still too young to vote. His mother, Gloria Hill, was an election poll worker for the 2012 presidential election....  Albright said he has always felt an obligation to vote. "I know my history," he said. He knows his Mississippi ancestors were spat on, slapped, threatened or worse for merely trying to register to vote.

He knows they faced laws designed to inhibit or prevent them from voting -- taxes they couldn't possibly pay, tests they couldn't possibly pass, whites-only primaries.  He knows how hard and long they struggled to gain the right to vote, and how long and hard they struggled to be allowed the privilege of voting. "My family takes voting seriously and so do I," he said.  Albright could have voted in last year's city elections, but he wanted to cast his first vote for president. So he waited.

Meanwhile, he was trying to figure out how he could afford to go back to school.  Albright graduated from Carver High School in 2014. His mother still has his football and weightlifting trophies on top of the TV. "He's never given me any trouble," she said. "In fact, he wanted to become a police officer." Albright started taking classes at Southwest Tennessee Community College, then dropped out when his money ran out. When he turned 18, he lost his share of his disabled mother's Social Security benefits.

Albright admits that he conspired with two others to rob a CVS drugstore in Memphis last December. The attempted robbery was botched, but one of the other robbers had a gun.  Albright was just sitting outside in a car when it all happened, but he knows he has no one to blame but himself.  "I made a stupid decision and hurt a lot of people who care about me," said Albright, who had no previous criminal record. "I learned a lot of lessons."

Before he went into the courtroom to face the judge last week, Albright sat down with his attorney. By pleading guilty, the attorney explained, Albright would be rendered infamous. That meant he would be deprived of some of his rights as a citizen – his rights to have a gun, to sit on a jury, to hold public office.

"What about my right to vote?" Albright asked.

"You'd lose that, too," attorney Alex Wharton replied.

"Can I vote before I plead guilty?" Albright asked.

Wharton, son of former Mayor A C Wharton, couldn't believe what he was hearing. "People will spend $20 to go to a movie, but they won't take 20 minutes to go vote," Wharton said. "And the cost has already been paid . People fought and shed blood and died for the simple right and privilege just to cast a vote."

Wharton decided to ask the judge for a brief continuance so Albright could go vote. The U.S. attorney did not object. “The government had no objection in this case to the court allowing the defendant the opportunity to exercise his constitutional right to vote before pleading guilty," said U.S. Attorney Edward Stanton III.

U.S. District Judge John T. Fowlkes Jr. said yes. "I've been in criminal law in some form or fashion as a lawyer or judge for 30 years, and I've never heard anyone ask that," Fowlkes said afterward. "It's an important right and I was glad to give that young man a chance to exercise it."

Albright left the courtroom with his mother. He pushed her wheelchair out of the federal building half a block up Front Street, then two blocks down Poplar to the Shelby County Election Commission.  They waited in line about half an hour. She pushed him to vote first. "I knew he'd been waiting a long time," she said.

After they both voted, Albright pushed his mother's wheelchair back to the federal building and into the courtroom.

"Did you vote?" the judge asked.

"Yes, sir," Albright said, pointing to his Tennessee-shaped "I Voted" sticker.

He thanked the judge for allowing him to vote for the first time in his life.  Then he pleaded guilty to a Class C felony and forfeited his right to vote.

He is scheduled to be sentenced in January. He faces up to 20 years in prison, but probation is an option. "It made me feel good to vote, to do this one time before it was taken away from me," he said. "Maybe I'll get another chance."

November 1, 2016 in Campaign 2016 and sentencing issues, Collateral consequences, Elections and sentencing issues in political debates, Procedure and Proof at Sentencing | Permalink | Comments (4)

Two new Washington Post commentaries making federal sentencin reform sound (way too) easy

The "In Theory" section of the Washington Post now has posted two notable new commentaries about prison reform.  Here are the authors, full titles and links:

Here is how the second of these two commentaries gets started:

When our next president enters the Oval Office, she or he will be faced with two questions: First, how to make a mark as president ? Second, how to break through gridlock in Congress?

Prioritizing reducing our prison population is one way to achieve both goals. Most Republicans and Democrats agree: Mass incarceration devastates communities of color and wastes money.  Even Hillary Clinton and Paul Ryan see eye-to-eye. Committing to such reform in the first 100 days would make a lasting and imperative change.

Regular readers will not be surprised to know I support the spirit and much of the substance of these two commentaries.  But the "can-do" talk and the direct or indirect suggestion that this kind of reform should be "easy for the next president" really seem to me to miss the mark.  After all, Prez Obama and House Speaker Paul Ryan and current Senate Judiciary Chair Chuck Grassley all right now largely "see eye-to-eye" on the importance of "reducing our prison population."  And yet, despite diligent work by lots and lots of folks on the federal reform front for more than two years now, Congress has so far been unable to get any kind of significant criminal justice reform bill to the desk of Prez Obama. 

Though I know the 2016 election is certain to disrupt the existing political status quo, I do not know if anything that happens at the voting booth next week can make it that much easier for the folks inside the Beltway to find their way to turn all sorts of talk into actual statutory reforms.  I sure hope advocates like those who authored these commentaries keep talking up the importance of making criminal justice reform a priority in 2017.  But, as I have been saying for too many years already, I am not counting any federal sentencing reform chickens until they are fully hatched.

November 1, 2016 in Campaign 2016 and sentencing issues, Criminal justice in the Obama Administration, Elections and sentencing issues in political debates, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (1)

"Reducing the Prison Population: Evidence from Pennsylvania"

The title of this post is the title of this new paper authored by Lindsay Bostwick now available via SSRN. Here is the abstract:

Four decades of rapid growth in the US incarceration rate has met with bipartisan support for reforming sentencing policies and calls to reduce the prison population. However, there is little consensus on how to achieve the reductions suggested. In this paper we project how the Pennsylvania prison population and age demographics may change through 2054 as a result of alternative sentencing policies. One consequence of the prison population growth in recent years has been the aging of those incarcerated and these increasingly older populations strain correctional resources for healthcare and other needs.

Our study finds reducing the prison population requires significant changes to the number of people sentenced to prison along with reducing the sentence length of those incarcerated. In particular, to reduce the prison population by a meaningful amount, we will have to reduce admissions to prison to 1980 rates and the sentence lengths for violent offenders to those seen in 1990. A focus on drug and low-level offenses will do little to change the population in the long run.

November 1, 2016 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (0)

Is California's parole reform initiative, Prop 57, among the most important and consequential sentencing ballot issues?

The question in the title of this post is prompted in large part by this recent Los Angeles Times article headlined "Why Gov. Jerry Brown is staking so much on overhauling prison parole." Here are excerpts (with my emphasis added for later commentary):

Few California voters likely know much, if anything, about the state Board of Parole Hearings — from the qualifications of the 12 commissioners to their success in opening the prison gates for only those who can safely return to the streets.  And yet Gov. Jerry Brown’s sweeping overhaul of prison parole, Proposition 57, is squarely a question of whether those parole officials should be given additional latitude to offer early release to potentially thousands of prisoners over the next few years. “I feel very strongly that this is the correct move,” Brown told The Times in a recent interview. “I’m just saying, let’s have a rational process.”

Prosecutors, though, contend the governor’s proposal goes too far after several years of trimming down California’s prison population to only the most hardened criminals. They believe the parole board, whose members are gubernatorial appointees, already is swinging too far away from being tough on crime. “They are recommending release of people we never would have expected would have occurred so soon,” said Los Angeles County Dist. Atty. Jackie Lacey. “I’m concerned about people who really haven’t served a significant amount of time.”

In some ways, Proposition 57 is a proxy for a larger battle over prison sentences.  There are sharp disagreements between Brown and many district attorneys over the legacy of California’s decades-long push for new and longer mandatory sentences, a system in which flexibility is often limited to which crimes a prosecutor seeks to pursue in court.  The warring sides have painted the Nov. 8 ballot measure in the starkest of terms, a choice for voters between redemption and real danger.  “We’re dealing with deep belief systems,” Brown said.

Proposition 57 would make three significant changes to the state’s criminal justice framework. It would require a judge’s approval before most juvenile defendants could be tried in an adult court — reversing a law approved by California voters in 2000.  Critics believe prosecutors have wrongly moved too many juveniles into the adult legal system, missing chances for rehabilitation.

What’s most in dispute are two other Proposition 57 provisions, either of which could result in adult prisoners serving less time than their maximum sentences. Brown tacked those two provisions onto the juvenile justice measure in January.  One would allow an expansion of good-behavior credits awarded by prison officials; the other gives new power to the state parole board to allow early release of prisoners whose primary sentences were not for “violent” crimes.

In an interview last week, the governor argued that his ballot measure would add a dose of deliberative thought to a process too often driven by elected district attorneys playing to the white-hot politics of sensational crimes. “Do you want the hurly burly of candidates, running for office, being the decision makers in the face of horrible headlines?” Brown asked. “Or would you rather have a quiet parole board, not now but 10 years later, deciding what's right?”

The governor’s plan, which amends the state constitution, would only allow parole after a prisoner’s primary sentence had been served — applying only to the months or years tacked on for additional crimes or enhancements.  And like the current system, a governor could override any parole board decision to release a prisoner.

Critics, though, think the parole board is already too eager to approve releases. Greg Totten, district attorney of Ventura County, said he believes parole board members are judged by how many prisoners they release.  “We don't have confidence that the parole board will consider our concerns about public safety or the crime victims' concerns,” Totten said.  “Those hearings have become much more adversarial than they originally were.”  Totten and other prosecutors warn that an influx of new requests for early release would overload parole board commissioners and send too many cases to their deputy commissioners, state civil servants whose decisions are made outside of public hearings.

Prosecutors and Brown have sparred mightily over the assertion that Proposition 57 would only expand parole opportunities for “nonviolent” felons, a term used prominently in the ballot measure’s official title and summary. In truth, the description only means that new parole opportunities wouldn’t apply to prisoners sentenced for one of 23 defined violent crimes in California’s penal code. That list includes crimes most voters would expect to see there, such as murder, sexual abuse of a child and kidnapping.  But in many ways, the list is porous.  Not all rape crimes, for example, are designated as “violent.” Prosecutors insist prisoners serving time for as many as 125 serious and dangerous crimes would be eligible for parole under Brown’s ballot measure.  Not surprisingly, the campaign opposing Proposition 57 is replete with images of felons who prosecutors allege could be released if the measure becomes law....

Brown, whose effort is supported by probation officers and leads in most every recent statewide public poll, suggests two overarching motivations. One is the specter of potential federal court-ordered prison releases, less likely now that massive prison overcrowding has abated after efforts to reduce penalties for less serious crimes and divert low-level offenders to county jails.  Still, the governor insists that Proposition 57 is a more thoughtful way to reduce the prison population than what could some day be chosen by federal judges.

The other, to hear him tell it, is an effort to undo some of what he did in the 1970s in pushing California toward more fixed, inflexible sentences for a variety of crimes. Brown said he now believes that many convicted felons are best judged not at the time of sentencing, but once they have had a chance to change their lives. “It allows flexibility,” the governor said. “I think this case is irrefutable to anyone with an open mind.”

The sentences I have highlighted above provide some account for why I think the Prop 57 vote is potentially so important, and not just in California. If California voters strongly support this parole reform initiative (and do so, perhaps, will also supporting the preservation of the death penalty in the state), elected official in California and perhaps other states may start to feel ever more comfortable that significant non-capital sentencing reforms have significant public support even during a period in which a number of prominent folks are talking a lot about an uptick in crime.  It also strikes me as quite significant that Gov Brown is still talking about the impact of the Supreme Court's Plata ruling about California prison overcrowding and justifying his reform efforts on these terms.

I have previously highlighted in this post why I think an Oklahoma ballot initiative on sentencing reform is similarly worth watching very closely. (That post from September was titled "Why Oklahoma is having arguably the most important vote in Campaign 2016 for those concerned about criminal justice reforms.") I expect that next week's post-election coverage of criminal justice issues will focus particularly on the results of big death penalty and marijuana reform votes. But I believe folks distinctly concerned about modern mass incarceration should be sure to examine and reflect upon the outcomes of these two non-capital, non-marijuana reform ballot initiatives in California and Oklahoma.

November 1, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

October 31, 2016

"Defendant in U.S. opioid kickback case claims constitutional right to smoke pot"

The title of this post is the headline of this notable new argument about a notable motion filed in federal district court case. Here are the details:

A U.S. ex-pharmaceutical sales representative accused of paying kickbacks to induce doctors to write prescriptions for an opioid drug is asserting he has a constitutional right to continue smoking marijuana so he can remain clear-headed for his defense.

In a filing Friday, lawyers for Jeffrey Pearlman asked a federal judge for the U.S. District Court in Connecticut to modify his bail conditions so that he can continue using marijuana that was prescribed to him by a New Jersey doctor to help him kick his opioid addiction.  "Forcing him off the medical marijuana and forcing him to return to addictive opioids would impair his Sixth Amendment right to participate fully in his defense and his Fifth (Amendment) right to due process," his attorneys Michael Rosensaft and Scott Resnik of Katten Muchin Rosenman LLP wrote.

The novel request is one of only at least three such attempts in a federal court to permit the use of medical marijuana.  It is possibly the only motion of its kind to assert a Sixth Amendment defense that the failure to permit medical marijuana use could re-trigger an opioid addiction and impede a person's ability to participate in his own defense....

A variety of state laws have legalized marijuana for medicinal use, but federal law still prohibits it. The drug is classified as a Schedule I substance, meaning it is addictive and serves no medical purpose. Many opioids, by contrast, fall under Schedule II, meaning they are addictive, but have medical uses.

Pearlman, a former Insys Therapeutics, was charged criminally in September for allegedly arranging sham speaker programs designed to encourage medical professionals to write prescriptions for a fentanyl spray.  His lawyers say Pearlman became addicted to opioids used to treat severe back and leg pain and the drugs made him "foggy" and unable to think clearly.

After being prescribed marijuana in August, they said, his pain has subsided and he is able to "think more clearly."  Whether the judge will grant Pearlman's request remains to be seen.  Two defendants in other federal courts previously lost their bids to continue using medical marijuana, though the facts and circumstances in those cases were different.

In this case, the U.S. Attorney's Office has not opposed the request.  A spokesman for the office declined to elaborate further.

There are so many drug war ironies baked into this story, I am not sure I know where to start my fuzzy commentary on the highlights of this case. For now, I will be content to note the remarkable fact that the U.S. Attorney's Office's has here not opposed a request by a federal fraud defendant to be able to break federal drug laws while on bail.

October 31, 2016 in Marijuana Legalization in the States, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Terrifically timed Northwestern JCLC symposium to ask "The Death Penalty's Numbered Days?"

Sent_yearI am so very fortunate and pleased and excited that at the end of next week — and less than 100 hours after the most significant and consequential elections for the future of the American death penalty — I am going to have a chance to participate in this amazing symposium being put on by Notherwestern Law's Journal of Criminal Law and Criminology.  The title given to the event is "The Death Penalty's Numbered Days?", and this symposium page provides the schedule of panels and speakers.  Here is how the web coverage introduced the event while also providing this quote from a notable recent SCOTUS dissent:

The Journal of Criminal Law and Criminology, with the significant support of the Irving Gordon Symposia Fund, is proud to announce the upcoming symposium, entitled "The Death Penalty's Numbered Days?"  Since the 1970's, the existence and implementation of the death penalty has changed and evolved, as has the way the legal system and its various actors view and talk about the issue.  This symposium, which includes a diverse group of some of the foremost scholars on the death penalty, will explore recent developments and attempt to provide a prognosis on the future application of the death penalty in the United States.  Attendees will be eligible for up to 5 CLE credits, and no registration is necessary.  Please direct any questions to our Symposium Director, Erica Stern, who can be reached at ebstern@nlaw.northwestern.edu.

Friday, November 11, 2016, 9:00 a.m. - 5: 00 p.m.

Thorne Auditorium, Northwestern University School of Law, 375 E. Chicago Avenue, Chicago, IL 60611

“Nearly 40 years ago, this Court upheld the death penalty under statutes that, in the Court's view, contained safeguards sufficient to ensure that the penalty would be applied reliably and not arbitrarily. . . . The circumstances and the evidence of the death penalty's application have changed radically since then. Given those changes, I believe that it is now time to reopen the question.” ~ Justice Stephen Breyer, Dissenting Glossip v. Gross, 135 S. Ct. 2726, 2755 (2015).

Though I am not yet sure about exactly what I will have say at this event, one theme I will be eager to stress in my comments is my strong belief that modern "evidence" concerning "the death penalty's application" actually suggests that this punishment is being imposed much more reliably and much less arbitrarily since President William J. Clinton left office.

As this DPIC chart and data reveal, during the William J. Clinton years (from 1993 to 2001), the United States averaged over 280 death sentences annually nationwide.  Over the course of the next eight years (the George W. Bush years), the annual number of death sentences imposed throughout the United States declined by about 50% down to around 140 death sentences per year.  And, over the last eight years (the Barack H. Obama years), we have seen yet another 50% reduction in annual death sentences imposed as we approach a BHO-term average of around 70 death sentences per year.  The year 2015 hit a remarkable historic low of only 49 total death sentences imposed nationwide, and I believe 2016 is going to see a similar or even smaller number of total death sentence once the year's accounting gets completed.

For a bunch of reasons I hope to explain at this symposium, Justice Breyer's sincere concerns about death sentences being often imposed arbitrarily and unreliably seem to me to have been especially trenchant when he was first appointed to SCOTUS.  At that time, states throughout our nation were imposing, on average, five or six death sentences every week.  Fast forward more than two decades, and the evidence of death sentencing reveals that, circa 2016, states throughout the nation are now imposing less than a single death sentence every week.  I strongly believe our death sentencing systems have become much, much more reliable and much less arbitrary as we have gotten much, much more careful about how gets subject to capital prosecution and about who ultimately gets sent to death row.

October 31, 2016 in Criminal justice in the Obama Administration, Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Miller/Montgomery GVR produces some separate opinion SCOTUS sparring

At the end of this morning's (otherwise uneventful) SCOTUS order list are a pair of separate opinions in Tatum v. Arizona, No. 15-8850, discussing the decision by the full Court to issue this order: "The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. The judgment is vacated, and the case is remanded to the Court of Appeals of Arizona, Division Two for further consideration in light of Montgomery v. Louisiana, 577 U. S. ___ (2016)."

Justice Sotomayor authored this lengthy concurrence which makes this point at the outset:

The petitioners in these cases were sentenced to life without the possibility of parole for crimes they committed before they turned 18. A grant, vacate, and remand of these cases in light of Montgomerypermits the lower courts to consider whether these petitioners’ sentences comply with the substantive rule governing the imposition of a sentence of life without parole on a juvenile offender.

JUSTICE ALITO questions this course, noting that the judges in these cases considered petitioners’ youth during sentencing. As Montgomery made clear, however, “[e]ven if a court considers a child’s age before sentencing him or her to a lifetime in prison, that sentence still violates theEighth Amendment for a child whose crime reflects unfortunate yet transient immaturity.” Id., at ___–___ (slip op.,at 16–17) (internal quotation marks omitted).

On the record before us, none of the sentencing judges addressed the question Miller and Montgomery require a sentencer to ask: whether the petitioner was among the very “rarest of juvenile offenders, those whose crimes reflect permanent incorrigibility.” 577 U. S., at ___ (slip op., at 17).

Justice Alito's shorter dissent, to which Justice Sotomayor is responding, was joined by Justice Thomas. It starts this way:

The Court grants review and vacates and remands in this and four other cases in which defendants convicted of committing murders while under the age of 18 were sentenced to life without parole.  The Court grants this relief so that the Arizona courts can reconsider their decisions in light of Montgomery v. Louisiana, 577 U. S. ___ (2016), which we decided last Term.  I expect that the Arizona courts will be as puzzled by this directive as I am.

In Montgomery, the Court held that Miller v. Alabama, 567 U. S. ___ (2012), is retroactive. 577 U. S., at ___ (slip. op., at 20).  That holding has no bearing whatsoever on the decisions that the Court now vacates.  The Arizona cases at issue here were decided after Miller, and in each case the court expressly assumed that Miller was applicable to the sentence that had been imposed.  Therefore, if the Court is taken at its word — that is, it simply wants the Arizona courts to take Montgomery into account — there is nothing for those courts to do.

It is possible that what the majority wants is for the lower courts to reconsider the application of Miller to the cases at issue, but if that is the Court’s aim, it is misusing the GVR vehicle.  We do not GVR so that a lower court can reconsider the application of a precedent that it has already considered.

UPDATE: After having a chance to review these opinion, I think it now fair to assert that the GVRs here are really based on the substantive expansion of Miller's Eighth Amendment rule in Montgomery.  That reality, in turn, allows me to point to my recent  commentary, titled "Montgomery's Messy Trifecta," and say simply "I told ya"!

October 31, 2016 in Assessing Miller and its aftermath, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

October 30, 2016

"The $3.4 Trillion Mistake: The Cost of Mass Incarceration and Criminalization, and How Justice Reinvestment Can Build a Better Future for All"

Report+CoverThe title of this post is the title of this big report released earlier this month and discussed in this press release. Here is a summary of the report drawn from the press release:

Over the last three decades, the U.S.’s emphasis on mass incarceration and criminalization policies wasted $3.4 trillion that could have instead been used to create living-wage jobs, improve educational opportunities for youth, and hire mental health and drug treatment counselors, according to a new report released today by three advocacy organizations.  The report, “The $3.4 Trillion Mistake: The Cost of Mass Incarceration and Criminalization, and How Justice Reinvestment Can Build a Better Future for All,” provides an analysis of the country’s investments in the justice system and their impact on federal, state, and local budgets, and on individual taxpayers. Authored by Communities United, Make the Road New York, and Padres & Jóvenes Unidos, the report includes state-by-state data and details on alternative investments that would more effectively address the roots causes of crime.

Key report findings show that, from 1982 to 2012, the U.S. increased its spending on the justice system from $90 billion annually to nearly $297 billion, a 229 percent increase.  Cumulatively, over that 30-year period, the U.S. spent $3.4 trillion more on the justice system than it would have if spending had remained steady since 1982.

“The ‘tough-on-crime’ approach and the ‘War on Drugs’ have not substantially improved public safety, but they have resulted in nearly eight million U.S. residents that are either in prison, in jail, on probation or parole, or otherwise under control of the justice system,” said Ricardo Martinez, Co-Director of Padres & Jóvenes Unidos. “That amounts to one out of every 40 people, which is a clear indication that our justice system is vastly oversized.”

Report authors found that the flawed spending impacted the country in the following ways:

• All 50 U.S. states accumulated billions of dollars in surplus justice spending over that time, ranging from $2.2 billion for North Dakota to $505 billion for California.

• In 1982, each household in the U.S. paid an average of $1,076 for our justice system. By 2012, each household was paying an average of $2,557, almost $1,500 more.

• Between 1983 and 2012, the justice system added an additional 1.2 million police officers, corrections employees, prosecutors, and other employees to our publicly funded workforce, nearly doubling its number of personnel.

• By far the largest category of justice spending — at 45 percent of the total — is police spending. It has also increased over time more than the other categories. For example, in 2012, the U.S. spent $85 billion more on police than it did in 1982.

• The impact of over-investment in the justice system has been particularly severe in communities of color. For example, approximately 1 in 18 Black residents, and 1 in 34 Latino residents, were under the control of the justice system in 2013 (compared to 1 in 55 White residents).

"To build safe and healthy communities, we need living-wage jobs, affordable housing, and access to quality education," said Zion Harley, youth leader at Make the Road New York. "It is time for us prioritize these types of community investments and stop the massive over-spending on the criminalization and incarceration of people of color and immigrants."

The report suggests that, instead of spending an extra $206 billion per year on the justice system, the U.S. could have created healthier and safer communities through other investments, such as:

• Creating over one million new living-wage jobs: $114B

• Increasing spending by 25 percent at every K-12 public school in the country: $159B

• Providing every household living in poverty with an additional $10,000 per year in income or tax credits: $87B

• Funding one million new social workers, psychologists, conflict mediators, mental health counselors, and drug treatment counselors to address public health/safety issues: $67B

• Creating a universal pre-K system for all 3- and 4-year-olds that would be free for lowincome families and affordable for middle-class families: $20B...

Key recommendations in the report suggest the following:

• Inclusive efforts at the federal, state, and local levels to reduce all four areas of surplus justice spending (police, corrections, judicial/legal, and immigration enforcement) and reinvest those funds in meeting critical community needs;

• The creation of a new, federal Justice Reinvestment Fund to dramatically expand the support and incentives for states and localities to engage in comprehensive justice reinvestment efforts; and

• State-level support and incentives for localities governments to engage in comprehensive justice reinvestment efforts.

October 30, 2016 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (1)

"Florida’s prisons waste money and lives"

The title of this post is the headline of this notable lengthy new editorial by the Florida Times-Union, from which come these excerpts:

Wasting money, wasting lives — that’s the motto of Florida’s prison system. Oh, it’s not official, but it’s the reality. Florida’s refusal to attack its criminal justice problems has enshrined us in the backwater of prison reform despite numerous indications that Gov. Rick Scott would address these concerns.

Florida spends too much money, rehabilitates too few prisoners and leaves its citizens no safer than other states like Texas and Georgia that have instituted common-sense reforms. “There’s no state plan to do anything, and the status quo is leaving us even further behind,” says Deborrah Brodsky of the Project on Accountable Justice. “This state simply overrelies on things that don’t work.”

Although some changes have been made in the six years since Scott took office, there has been little comprehensive reform. That’s surprising to prison reform advocates who initially thought the new governor was a staunch advocate. Scott had commissioned a 263-page transition report from a team of hand-picked experts on the Department of Corrections before he took office in 2011.

When negotiating his first budget, the governor did make fiscal changes to make the Department of Corrections more efficient in his incoming budget. Advocates believed he would follow through by enacting the kinds of reforms that had reduced prison budgets in other states. Instead, the governor’s first budget showed not reforms but the elimination of 1,690 Department of Corrections jobs — including 619 corrections officers — the closure of two prisons and transferring 1,500 inmates to private facilities. Since then, he has since refused to embrace reform in the adult prisons, although he has made substantial positive changes within the juvenile system.

There are many proven changes Florida must make to reverse its course. These range from revisiting how the courts sentence people for drugs to how juveniles are treated in the system. Marc Levin, the director of the Center for Effective Justice in Texas, told the Times-Union editorial board his state has already made strides in reforming the Lone Star state’s system. He suggested four areas deserving of immediate attention in Florida.

Alter the use of direct file of juveniles into the adult prison system....

Readjust mandatory minimum sentences....

Change pre-trial procedures....

Adjust state felony theft thresholds....

In 2010, Scott’s transition team noted that prison reform was needed. “Our team found that DOC is broken,” the report concluded, noting that the Legislature had ignored pleas for modernization and reform. The report listed multiple excellent ideas whose combined mission was to reform the prison system, reduce recidivism, decrease the number of repeat offenders, ease ex-offenders transition back to the community and save taxpayers money.

What’s happened since then? Very little. Scott seems to have forgotten his own transition team’s report on the need for prison reform, and the Legislature has failed to press for changes. It’s time Florida paddles itself out of the backwater of prison reform.

October 30, 2016 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Mizzou State Representative wants to consider showing repeat sex offenders to execution chamber

As reported in this local article, headlined "State Rep. wants death penalty as option for repeat sex offenders," a local elected official has a notable idea for punishing certain sex offenders. Here are the details:

It’s the one issue in Jefferson City that State Representative Randy Pietzman says nobody likes to talk about. “This is not a popular topic to talk about if you’re just trying to get re-elected,” he said.  But that’s not going to stop him from tackling it head on because he says it concerns the safety of every Missouri child. “We need to change something. We need to do something to curb this problem,” he said.

And it’s especially relevant for Lincoln County, where the Republican is running unopposed for his second term this November. The rural county, about an hour to the northwest of St. Louis, has a disproportionately high number of sex offenders and sex crimes against children. “If you compare us with other counties in the surrounding area, per capita, we have substantially more sex offenders,” said Detective Sean Flynn with the Lincoln County Sheriff’s Office. “There’s something attracting them here,” Pietzman said.

But whatever the reason for the unwanted popularity, it’s having an impact on multiple levels. “It seems these crimes are impacting people across the socioeconomic spectrum,” Flynn said.... “It’s impacted the department in a way that my time is monopolized by this. Really, we’re at the point where we need more people to investigate,” Flynn said.

And some in law enforcement go a step further to say the situation might be beyond repair. Captain Michael Merkel with the Lincoln County Sheriff’s Office said, “I don’t think stopping it is an option. I think slowing it down is something we could do.”  One way of going about that, he said, is to strengthen the penalties statewide for what’s considered to be some of the most heinous crimes imaginable. “It’s not acceptable that somebody can pass a bad check and be punished more harshly than someone who has victimized a child,” Merkel said.

Capt. Merkel also suggests improving their ability to investigate child sex crimes. Right now, detectives in Missouri can only interview juvenile victims if their parents give permission.  And the problem?  “What we run into is we have a parent or family member who’s a suspect.  And they’re the only ones who can authorize the interview,” Merkel explained.

It’s a loophole in state law that Rep. Pietzman said could help his county, and the state, if it was closed. “We’re talking about our kids. If the punishment doesn’t match the crime, then it’s going to keep continuing,” he said.

That’s why, following our initial report, Pietzman is working on a number of reforms, including one that would make the death penalty a possible punishment for repeat offenders. “That seems cruel when you think about it," he said, "but you got to think about what these guys have done. We’re talking about grown men having sex with kids as young as 3- or 4-years-old.”

There are several cases and states that have pushed for similar measures, but capital punishment in America right now is almost exclusively reserved for the crime of murder. Pietzman said at the very least, he hopes to start a conversation in the legislature that some in law enforcement say is long overdue.

I am eager to help State Representative Randy Pietzman start this conversation about making repeat sex offenders eligible for the death penalty. The first critical point in such a conversation, however, has to be about the Supreme Court's Kennedy ruling which seemingly declared the death penalty unconstitutional for any and all crimes of rape. An argument might be developed that the Kennedy ruling applied formally addressed a first-offense child rapist, and so perhaps a capital statute focused on only the worst of the worst repeat child rapists could be legally viable (and, of course, because Eighth Amendment doctrines evolve perhaps Eighth Amendment precedents have less stare decisis force).

Also important to consider here is the concern expressed by Capt. Merkel about challenges he faces investigating child sex crimes. I suspect and fear that making some sex offenders eligible for the death penalty could actually end up aggravating rather than mitigating this problem as family members fearing a capital prosecution may be uniquely unwilling to cooperate with authorities.

October 30, 2016 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (31)

New York Times editorial highlights disaffinity for felon disenfranchisement

This morning's New York Times has this little new editorial headlined ""Agreed: Serve Your Time, Cast Your Ballot." Here is its text:

The bitterly fought presidential campaign has underscored yet again that conservative and liberal Americans are deeply divided on just about every aspect of social policy.

So it is surprising to find widespread agreement on one issue. A national survey released last week by PRRI, a nonpartisan opinion research organization, shows that Americans think people who have committed felonies and paid the price for their crimes should be able to vote.

Laws in a dozen states will bar more than three million people with felony convictions from voting on Nov. 8 — even though they have completed their prison sentences, probation or parole.

Three-quarters of all Americans believe that these people deserve the right to participate in democracy, and that support reaches across the political spectrum to include clear majorities of Republicans, Democrats, conservatives, moderates and liberals.

October 30, 2016 in Collateral consequences, Who Sentences? | Permalink | Comments (1)