November 12, 2016
"How Prosecutors and Defense Attorneys Differ in Their Use of Neuroscience Evidence"
The title of this post is the title of this notable article authored by Deborah Denno now available via SSRN. Here is the abstract:
Much of the public debate surrounding the intersection of neuroscience and criminal law is based on assumptions about how prosecutors and defense attorneys differ in their use of neuroscience evidence. According to some, the defense’s use of neuroscience evidence will abdicate criminals of all responsibility, while the prosecution’s use of that same evidence will unfairly punish the most vulnerable defendants as unfixable future dangers to society.
This “double-edged sword” view of neuroscience evidence demonstrates the concern that the same information about the defendant can either be mitigating or aggravating depending on who is raising it. Yet empirical assessments of legal decisions reveal a far more nuanced reality, showing that the public beliefs about the impact of neuroscience on the criminal law can often be wrong.
This Article examines how courts respond to neuroscience evidence in capital cases when the defense presents it to argue that the defendant’s mental state at the time of the crime was below the given legal requisite due to some neurologic or cognitive deficiency. Relying on data from my “Neuroscience Study” (which consists of all criminal law cases that addressed neuroscience evidence from 1992–2012), I examine thirty-nine capital cases in which the defense attempted to use neuroscience evidence to dismiss or diminish the defendant’s level of intent either at the guilt phase or the penalty phase, along with a corresponding rebuttal or counterargument from the prosecution. I use a range of case examples to show how courts’ differing perspectives on what constitutes mitigating and aggravating evidence suggests that the “double-edged sword” framework is simplistic and, at times, misleading.
This Article concludes that the lack of consistency and guidance among lower mens rea cases seemingly hinders a more effective application of neuroscience evidence in intent determinations. To remedy this problem, this Article endorses the “reasonable jurist” framework, which recognizes the value of case-by-case determinations and provides courts with a more realistic lens through which to assess the great variety of neuroscience factors.
A quick take on the Obama sentencing era and its 2016 ending
As I reflect on the emotions and uncertainty resulting from Donald Trump now being our Prez-Elect, my thoughts keep wandering back to this time eight years ago when Barack Obama had just been elected after campaigning on the slogans hope and change. Due to my intense interest in sentencing reform changes of so many varieties, I was cautiously optimistic that the Obama era might usher in a profound new world order for the operation of federal and state criminal justice systems.
But now I look back and have to conclude that the Obama sentencing era, generally speaking, was filled with way too much hope and not nearly enough change. And it strikes me that for a lot of voters this past week who rejected Democratic candidates, the Obama era for them was perceived to be filled with way too much change and not nearly enough hope.
November 11, 2016
How many veterans are among Prez Obama's 944 federal prison commutations? How many more veterans are clemency worthy?
The question in the title of this post are inspired by today's national holiday, Veterans Day. Here are some general data thoughts/realities as part of an effort to try to answer these questions:
1. According to these latest BJS statistics, we can reasonably estimate that at least 5% of the current federal prison population are veterans. The BJS report starts by noting that "In 2011–12, an estimated 181,500 veterans (8% of all inmates in state and federal prison and local jail excluding military-operated facilities) were serving time in correctional facilities." But a variety of demographic realities would suggest that veterans are probably underrepresented among the types of prisoners serving time in federal prison.
2. So, to answer my first question based on this working estimate of at least 5%, we should expect that nearly 50 of the 944 federal prisoner commutations by Prez Obama have been to veterans. But this is really a statistical guess because there could be direct or indirect reasons why veteran status made a candidate more likely to garner Prez Obama's attention or why the pool of long-sentenced drug offenders now only getting clemency these days are less likely to include veterans.
3. And, to answer my second question based on this working estimate of at least 5%, we should expect that nearly 10,000 veterans make up of current federal Bureau of Prisons population which totals over 191,000. If we were to entertain the supposition that only 1 out of every 100 current veteran federal prisoners are likely to be good candidates for clemency, that would still mean 100 current federal prisoners would now be commutation-worthy. (And, if we want to think about all veterans with a federal conviction who might seek or merit a pardon, there could well be thousands of good veteran clemency candidate worth thinking about on this Veterans Day.)
Though the day is still young, I am not expecting that Prez Obama will celebrate his last Veterans Day in the Oval Office by making a special effort to grant commutations or pardons to a special list of veterans. But Prez-Elect Trump, who made taking care of the vets a consistent campaign theme, perhaps might be encouraged by sentencing reform advocates to plan to celebrate his future Veterans Days in the Oval Office by looking to use his clemency powers in this kind of special and distinctive way. After all, a key slogan for this day is to "honor ALL who served," not just those who stayed out of trouble after serving.
Some very old prior related posts:
- Thinking about sentenced troops on Veterans Day
- How many vets, after serving to secure liberty, are now serving LWOP sentences?
- My amicus effort to support our troops
- Should prior military service reduce a sentence?
- How about a few clemency grants, Prez Obama, to really honor vets in need on Veterans Day?
- Are special jail facilities for veterans (and other special populations) key to reducing recidivism?
November 11, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Early thoughts on a day to be full of thoughts about the future of the death penalty
As noted in this prior post, I am so very fortunate and pleased and excited that today I will have a chance to participate in this amazing symposium being put on by Northwestern 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.
Needless to say, all the election result earlier this week surely has impacted what a lot of folks plan to say at this event, and here are three notable new article highlights aspects of the new capital punishment world order:
From BuzzFeed News here, "How Donald Trump Could Revitalize The Death Penalty: Trump could have a serious impact on the death penalty if he wanted to. Here’s how."
From SFGate here, "Suit filed to block death-penalty measure Prop. 66"
From the AP here, "With Death Penalty Back, Nebraska Looks Ahead to Executions"
In a (too tiny) nutshell, I generally do not expect too much to change jurisprudentially or practically about the death penalty in the next few years unless and until (1) states can find a steady supply of lethal injection drugs (or devise effective alternative methods of execution), and/or (2) Prez-Elect Trump and his appointees start trying to make a potent case to all Americans that much greater use of the death penalty is an essential and important ways to legally respond to the uptick in murders nationwide in the last few years.
November 10, 2016
Reading closely the main criminal justice elements of "Donald Trump’s Contract with the American Voter"
I just had a chance for the first time to review closely this two-page document entitled "Donald Trump's Contract with the American Voter." I did not read this document whenever it was released during the campaign, but now I see these notable promises in the criminal justice arena from page two of this document (with my emphasis added):
I will work with Congress to introduce the following broader legislative measures and fight for their passage within the first 100 days of my Administration:...
End Illegal Immigration Act
Fully-funds the construction of a wall on our southern border with the full understanding that the country of Mexico will be reimbursing the United States for the full cost of such wall; establishes a two-year mandatory minimum federal prison sentence for illegally re-entering the U.S. after a previous deportation, and a five-year mandatory minimum federal prison sentence for illegally re-entering for those with felony convictions, multiple misdemeanor convictions or two or more prior deportations; also reforms visa rules to enhance penalties for overstaying and to ensure open jobs are offered to American workers first.
Restoring Community Safety Act
Reduces surging crime, drugs and violence by creating a task force on violent crime and increasing funding for programs that train and assist local police; increases resources for federal law enforcement agencies and federal prosecutors to dismantle criminal gangs and put violent offenders behind bars.
Because I generally think that mandatory minimum sentencing provisions often do more harm than good, I am troubled to see emphasis on such provisions in the first passage I have quoted. At the same time because I generally think out federal criminal justice system should be much more focused on violent crime and much less focused on nonviolent crime, I am actually a bit encouraged to see an particular emphasis on violent crime in the articulation of priorities in the second passage.
Which possible SCOTUS pick from the Trump list should sentencing reformers be rooting for?
The question in the title of this post is prompted by my strong belief that Prez-Elect Trump is very likely to keep his campaign promise to pick a SCOTUS nominee from his list of 21 possibilities released during his campaign. Ed Whelan has this helpful new post over at Bench Memos that sets out all the 21 names and their current positions as well as a reminder that Trump said this list "is definitive and [that he] will choose only from it in picking future justices of the United States Supreme Court."
As a fan and follower of federal sentencing law and policy, there are three names on the Trump lists that jump out to me immediately:
For complicated reasons that I do not think can be adequately and effectively explained in this forum, I am cautiously optimistic that the appointment of any of these gentleman could be a relatively positive development for the future of SCOTUS sentencing jurisprudence. (Critical disclosure: my views here, at least for the two jurists above, are significantly influenced by my own personal and professional interactions. Judge Pryor and I have exchanged emails a few times (both before and since he became a member of the US Sentencing Commission), and Judge Thapar and I have met and spoken more than a few times (and he hired a former student of mine as an intern and also solicited me to write an amicus brief in a fascinating sentencing case a few years ago).)
Sadly, other than this trio, I am unfamiliar with the sentencing views and record of any of the other 18 persons on Prez-Elect Trump's SCOTUS (not-so-)short list. Ergo, I am uncertain about whether to be cautiously optimistic or pessimistic about what any other nomination could mean for the future of SCOTUS sentencing jurisprudence. I am certain, though, that a whole bunch of journalists and lawyers and advocates are now starting the hard work of investigating (and perhaps formally vetting) every person on the Trump SCOTUS list.
I am hopeful that anyone with any relevant sentencing-related information about these folks will share that information in the comments here or via email/links. I suspect Prez-Elect Trump will nominate a replacement for Justice Scalia within his first few days as president, and so I do not think it is too early to start gearing up for what should be an interesting and dynamic confirmation process.
"Revitalizing the Clemency Process"
The title of this post is the title of this recent lengthy article authored by Paul Larkin which is available via SSRN (and which I hope someone can now put on the required reading list for the Trump transition team). Here is the abstract:
St. Anselm once asked how a perfectly just God could also be merciful, since perfect justice and almighty grace could not seemingly coexist. Fortunately, the criminal justice system does not need to answer that question, one that has proven inscrutable for theologians and philosophers, because its assumptions do not apply to our system. An earthly judicial system will never be able to administer justice perfectly and cannot disburse mercy even approaching the quality of the divine. But the clemency power can try to achieve as much of an accommodation between those two goals as any human institution can. Unfortunately, however, our recent span of presidents, attuned more to political than humanitarian considerations and fearing the electoral wrath of the voters for mistaken judgments, have largely abandoned their ability to grant clemency in order to husband their political capital for pedestrian undertakings. Far worse, others have succumbed to the dark side of “the Force,” have used their power shamefully, and have left a stain on clemency that we have yet to remove.
We now have reached a point where that taint can be eliminated. There is a consensus that the clemency process can and should be reformed. The problem lies not in the power itself, but in the process by which cases are brought to the President for his review and maybe in the people we have elected to make those decisions. The Office of the Pardon Attorney should be transferred from the Department of Justice to the Executive Office of the President, and the President should select someone to fill that position. That revision to the clemency process should help us see a return of the necessary role that clemency can play in a system that strives to be both just and merciful.
Did death penalty initiatives make it easier for significant prison reforms to pass in California and Oklahoma?
The sets of death penalty initiatives on state ballots this year received lots of attention, and the pro-death-penalty side received lots of voter support in both "red states" like Nebraska and Oklahoma as well as in the in "blue state" of California. (And I am very excited, as previewed here, that tomorrow at Northwestern Law I be part of a symposium that will be seeking to sort out what this means for the future of the death penalty in the US.) But, as Randy Balko notes in this Washington Post piece headlined "Believe it or not, it was a pretty good night for criminal-justice reform," the death penalty outcomes should be looked at in the context of other criminal justice reform measure that also got significant support from voters in both red and blue states. Here are excerpts from his piece with one word highlighted by me for commentary to follow:
The death penalty was on the ballot in three states last night, by way of four separate initiatives. In all of them, the death penalty won.... But it wasn’t just in red states. California voters weighed in on two death penalty initiatives — one to repeal it, and one to speed it up. The former failed, the latter passed. This is a state that Hillary Clinton won by 28 points. Americans still revere the death penalty....
But there was also a lot of good news last night. Marijuana won in 8 of the 9 states in which it was on the ballot — including outright legalization in California, Massachusetts and Nevada. Those states all went blue in the presidential race, but red states Montana, Florida, Arkansas and North Dakota all legalized medicinal marijuana. The lesson here appears to be that pot has finally transcended the culture wars, but the death penalty hasn’t. [My other blog, Marijuana Law, Policy and Reform, is where I obsess on this reality.]
There are a couple of other important reform measures that passed. Ironically, both were in states that strengthened the death penalty. California voters approved Prop 57, which expands parole (as opposed to prison) and time off for good behavior for nonviolent offenses, and lets judges (instead of prosecutors) determine whether juveniles should be tried in adult courts. And in Oklahoma, voters approved of a measure to reclassify certain property and drug possession crimes from felonies to misdemeanors. They also approved a measure that would use the money saved from reclassifying such crimes to fund rehabilitation, mental health treatment and vocational training for inmates. New Mexico voters passed a bail reform measure that, while poorly drafted, at least indicates that there’s an appetite in the electorate for such reforms.
As the question in the title of this post is meant to suggest, I do not think it "ironic" that the very different states of California and Oklahoma with very different voters acted in the same way here. Indeed, I think it quite sensible for voters to be eager to, at the same time while voting, express support for tougher sentencing for the very worst criminals (terrible murderers) and for smarter sentencing for the lesser criminals (nonviolent and drug offenders). I make this point to stress not only that (1) these results make perfect sense to "average" voters at this moment in our national criminal justice discourse, but also that (2) it was practically shrewd for politicians in California and Oklahoma to put prison reforms in front of voters at the same time they were considering death penalty issues.
1. As a matter of political mood, I suspect the "average" voter now is not too troubled by historic problems with the administration of the death penalty, largely because some recent big capital cases involve mass murderer with no concerns about a possible wrongful conviction or terrible defense lawyering. High-profile capital cases like James Holmes (the Aurora movie theater mass murderer), Dzhokhar Tsarnaev (the Boston Marathon bomber) and Dylann Roof (the Charleston Church mass murderer) have all involved crimes in which guilt seems clear beyond any doubt and in which the defendants have had the benefit of spectacular defense lawyers.
At the same time, while the "average" voter is seemingly not keen on taking the death penalty completely off the table for mass murderers like Holmes, Tsarnaev and Roof, she seems to be growing much more keen on reducing reliance on incarceration for nonviolent and drug offenders. National discussions of the expense and inefficacy of the drug war and other concerns about modern mass incarceration has, it seems, made prison reform for certain lower-level offenders politically popular even in a red state like Oklahoma.
2. As a matter of practical realities, especially in a state like California in which "tough on crime" prison initiatives have historically garnered vocal support from law enforcement groups and prosecutors and prison unions, I suspect having a death penalty initiative for the "tough-and-tougher" crowd to focus on created a window of opportunity for supporters of prison reforms to dominate the messaging for voters on "lower salience" issues like expanding parole eligibility or reducing some crimes to misdemeanors. Though I was not in California or Oklahoma to experience their initiative campaigns directly, I know just from reading Crime & Consequences that Kent Schneidegger, a very effective tough-on-crime advocate, was much more focused on Prop 62 and 66 (the capital initiatives in California) than on Prop 57 (the parole initiative that he called "Gov. Brown's Jailbreak Initiative").
November 10, 2016 in Death Penalty Reforms, Marijuana Legalization in the States, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)
November 9, 2016
"Why Donald Trump’s election won’t doom the criminal justice reform movement"
The title of this post is the headline of this lengthy new Fusion commentary authored by Casey Tolan. The piece covers a lot of ground effectively in the wake of yesterday's election results and I recommend the piece in full. Here are some extended excerpts:
In many ways, Donald Trump as president is a nightmare for criminal justice reformers. He has declared himself “the law and order” candidate and falsely painted American cities as hellholes with skyrocketing crime rates. Hillary Clinton, on the other hand, had pledged to “reform our criminal justice system from end-to-end.”
But Trump’s stunning victory — while scary for many other reasons — isn’t a death blow to the reform movement. While Trump can undo changes President Obama made and prevent serious criminal justice reforms at the federal level for the next four years, the policies that are arguably more important to fighting mass incarceration are happening at the state and local levels.
Overall, it was a mixed-bag election night for criminal justice. Even while Trump clinched the White House, reformers won important victories in state and local races that could lead to real declines in incarceration. And yet: the death penalty won in all three states where it was on the ballot.
The tension between Trump’s law and order rhetoric and the reform victories down the ballot points to a sometimes overlooked truth: The president does not actually have that much power over the policies that lead to mass incarceration. Only about 12% of prisoners in America are in federal prisons run by the executive branch, while the vast majority are in local jails and state prisons. In many ways, local district attorneys have a bigger impact on criminal justice and incarceration in their districts than the president does.
And reformers had a very good night in DA races. Challengers pledging reform defeated tough-on-crime prosecutors in Houston, Tampa, and Birmingham, and won an open district attorney election in Denver. This is especially good news for Houston, whose incumbent DA Devon Anderson has increased arrests for low-level drug possession, defended seriously flawed death sentences, and once jailed a rape victim during the trial of her rapist. Those results continued a trend from earlier this year of more reform-minded local prosecutor candidates prevailing in primaries.
The president does not actually have that much power over the policies that lead to mass incarceration. Elsewhere on the ballot were other bright spots. In California, voters passed a measure that would make nonviolent offenders eligible for parole and lead to fewer juveniles being tried in adult courts. In Oklahoma, they approved an item reclassifying drug possession and small property crimes from felonies to misdemeanors, and earmarked cost savings from those changes for mental health and rehabilitation programs. Both measures are expected to lead to substantial reductions in incarceration in their states. New Mexico approved a constitutional amendment that prohibits defendants from being jailed just because they can’t pay bail....
Of course, Trump will probably have a drastic effect on prospects for federal criminal justice reform. Last year, bipartisan senators introduced to great fanfare a bill that would reshape federal sentencing laws and let nonviolent inmates get out of prison sooner. Even with the wholehearted support of President Obama and substantial compromises that watered down the bill, efforts to pass the measure have failed thanks to a group of conservative senators like Alabama’s Jeff Sessions, Trump’s chief ally in the body. While Trump doesn’t seem to have directly addressed the bill, his past statements don’t make him seem amenable to the idea.
Moreover, Trump could easily undo many of the smaller-scale reforms put into place by the Obama administration. On day one, Attorney General Rudy Giuliani — or whoever Trump picks — could rip up the Obama directive telling federal prosecutors to focus on the most serious drug cases and ask for less mandatory minimum sentences. He could end Obama’s policy to “ban the box” in federal government hiring, which helps formerly incarcerated people get jobs by not making them check a box saying they have a criminal record at the first stage of applications. He could reverse the Justice Department’s plan to phase out federal private prisons (a prospect that has sent private prison company stocks soaring the morning after the election). And most importantly, Trump will almost surely be able to appoint a conservative Supreme Court justice, who could help pivot criminal justice law away from defendants’ rights for a generation.
Trump’s election is a shock for justice reform groups working at the federal level, some of which had already started preparing white papers on reducing mass incarceration for the Clinton administration. Nkechi Taifa, an activist at the Open Society Foundations who helped fight for drug policy reforms, told me she couldn’t believe what had happened. “We’ve always had an uphill battle on criminal justice,” Taifa said. “I just think we need to redouble our efforts. I don’t think we should retreat.”
With 71 days still in office, Obama could lock in some reforms with a broader use of his clemency power. He has already set records by commuting the sentences of more than 900 inmates serving time for drug crimes. But Taifa said he should go further, reducing the sentences of as many inmates as possible before Trump takes the keys to the White House. Clemencies cannot be undone by future presidents. “I’m saying to Obama, ‘What have you got to lose?'” Taifa said. “If he’s going to drop the mic, drop it that way.”
For families waiting to hear back about clemency decisions, Trump’s win was a sucker-punch. Obama “is my only hope,” Miquelle West, whose mother has applied for clemency from Obama, told me in a text message this morning. West said she doubted that her mother, who is serving a life sentence, would have a chance to be released after inauguration day. “I don’t see Trump being compassionate,” she said.
November 9, 2016 in Campaign 2016 and sentencing issues, Elections and sentencing issues in political debates | Permalink | Comments (4)
"Prison stocks are flying on Trump victory"
The title of this post is the headline of this notable new CNBC article, which includes these excerpts:
Private prison stocks soared Wednesday after Republicans won control of Congress and the White House.
Corrections Corporations of America and GEO Group had suffered some of their biggest declines over the last several months. But on Wednesday, both stocks recouped some of those losses. Corrections Corporation gained 43 percent, while GEO climbed more than 21 percent.
In August, the Department of Justice instructed its Bureau of Prisons to begin phasing out the use of private contractors for federal corrections facilities. Both stocks tanked on the news, but analysts called the market reaction overblown, and questioned how feasible it would actually be for the federal government to build new housing for displaced prisoners....
The stocks fell particularly far after presidential candidate Hillary Clinton expressed her support for the moves and her intention to build on them. "I'm glad that we're ending private prisons in the federal system," Clinton had said in her first presidential debate with Donald Trump. "I want to see them ended in the state system. You shouldn't have a profit motivation to fill prison cells with young Americans."
Days after Clinton made her remarks, both stocks posted their worst quarters in more than 15 years. Now that Clinton has lost, and Democrats failed to gain control of Congress, it appears investors are more sanguine about the future of the businesses.
Could "mens rea" federal statutory reform become a priority for the next GOP Congress and for a Trump Administration?
The question in the title of this post is prompted by the fact that nearly all GOP members of Congress who have discussed an interest in federal criminal justice reform, as well as many right-leaning policy advocates and advocacy groups, have urged so-called federal "mens rea" reform. An articulation of these realities finds effective expression in this September 2015 "Legal Memorandum" authored by John Macolm, the Director of the Edwin Meese III Center for Legal and Judicial Studies at The Heritage Foundation, under the titled "The Pressing Need for Mens Rea Reform." I blogged this document when it was released 14 months ago, and highlight its abstract and "Key Points":
One of the greatest safeguards against overcriminalization — the misuse and overuse of criminal laws and penalties to address societal problems — is ensuring that there is an adequate mens rea requirement in criminal laws. Sentencing reform addresses how long people should serve once convicted, but mens rea reform addresses those who never should have been convicted in the first place: morally blameless people who unwittingly commit acts that turn out to be crimes and are prosecuted for those offenses rather than having the harms they caused addressed through the civil justice system. Not only are their lives adversely affected, perhaps irreparably, but the public’s respect for the fairness and integrity of our criminal justice system is diminished. That is something that should concern everyone.
1. Nearly 5,000 federal criminal statutes are scattered throughout the U.S. Code, and an estimated 300,000 or more criminal regulatory offenses are buried in the Code of Federal Regulations.
2 Not even Congress or the Department of Justice knows precisely how many criminal laws and regulations currently exist. Because many of them lack adequate (or even any) mens rea standards, innocent mistakes or accidents can become crimes.
3. Congress should pass a default mens rea provision that would apply to crimes in which no mens rea has been provided. If a mens rea requirement is missing from a criminal statute or regulation, a default standard should automatically be inserted, unless Congress makes it clear in the statute itself that it intended to create a strict liability offense.
Notably, as I lamented in this post in January 2016, I have long feared that Democratic opposition toward GOP eagerness for mens rea reform was a problematic impediment to any bipartisan federal statutory sentencing getting to Prez Obama's desk before he left the oval office. But the Election 2016 results mean that the next GOP Congress now need not have to worry too much about opposition to mens rea reform from Democratic members of Congress and also probably that such reform will have the support of our next President.
Of course, very few non-lawyers even understand what the term mens rea means, and I am certain that those who voted for Republican federal elected officials did not have mens rea reform in mind when voting. (Indeed, ironically, mens rea reform would generally make it harder to prosecute the kinds of crimes that has led to Hillary Clinton being investigated by the FBI.) Thus, I doubt anyone other than federal criminal lawyers and think-tank types would even notice if mens rea reform is or isn't part of the agenda of the next Congress and Administration. But I hope it is.
Some recent and older related posts:
- "The Pressing Need for Mens Rea Reform"
- "Our Voluminous Laws And The Need For ‘Mens Rea’ Reform"
- Might misguided mens rea reform concerns derail federal sentencing reform's momentum?
- Justified criticisms of Prez Obama's not-so-justified criticisms of proposed mens rea reform
- "How to solve the biggest issue holding up criminal justice reform: Republicans and Democrats can't agree on 'mens rea' reform. Here's a middle ground."
Effective Marshall Project takes on Election 2016 and criminal justice now and in the future ... UPDATE: and another set of views via Crime & Consequences
The folks at The Marshall Project have four new articles that review and assess what this Election cycle says and suggests about the state and fate of criminal justice issues throughout the United States. Here are links to these pieces:
- The States Where Voters Decided to Give Criminal Justice Reform a Try
UPDATE: For another informed and diverse perspective on criminal justice reform stories, I always check daily Crime & Consequences in addition to The Marshall Project. Here are some of the early Election 2016 reaction posts from various folks at C&C:
Marijuana, Merrick and millenials: why cautious insider Dems lost another outsider/change election
In my effort to make sense of the various Election 2016 realities, these early stories and data points caught my attention:
1. Popular vote realities in 2012 and 2016
Popular vote totals in 2012: Obama 65,915,795; Romeny 60,933,504; Johnson + Green 1,745,579 (total vote = 128.6 million)
Popular vote in 2016 (as of now): Trump 59,007,205; Clinton 59,132,664; Johnson + Green 5,195,998 (total vote = 123.3 million)
In other words, as of this writing, there were roughly 5 million fewer voters total in 2016 compared to 2012 and also roughly 3.5 million more of those who did vote in 2016 voted for one of the third party candidates.
2. Younger voters in 2016
As Nate Silver flagged here: "While the third-party vote wasn’t all that high tonight overall, an exception came among younger voters. According to the national exit poll, 9 percent of voters ages 18 to 29 went for third parties, as did 8 percent of voters ages 30 to 44." And until I see data to the contrary, I would guess that younger voters (especially younger minority voters) comprise a large portion of the roughly 5 million "missing" voters in 2016.
As the title of this post is meant to reveal, I already have my own (self-serving?) theories for why so many fewer folks showed up to vote in 2016 and for why so many younger progressive voters were much more eager to vote for third-party candidates. Put simply, the tendency this cycle for Democrats (a) to nominate cautious insiders — like HRC for Prez and Ted Strickland for Senate in Ohio — and (b) to make cautious insider moves on a number of major high-salience law and policy issues — like Prez Obama nominating Merrick Garland for SCOTUS and HRC not taking up the populist cause of marijuana reform — led to a whole lot of folks not being excited enough to show up to vote and led to a whole lot of those folks showing up not being excited enough by Democrats to vote for their candidates.
In some prior posts in this space, I have highlighted some reasons why I considered the Merrick Garland nomination to be a big political mistake for Democrats:
- New SCOTUS short-list name to excite sentencing fans: Judge Ketanji Brown Jackson
- After a month, Prez Obama makes ("consensus"?) pick of DC Circuit Chief Judge Merrick Garland for SCOTUS opening
- Does anyone want to speculate about SCOTUS politics if Prez Obama had nominated, say, Judge Ketanji Brown Jackson?
And over at my Marijuana Law, Policy and Reform, here were my posts from last night detailing the remarkably large number of folks in a large number of states who rejected suggestions by all sorts of cautious insiders (of both parties) to slow down the rapidly-moving marijuana reform movement:
- Florida voters seem poised to legalize medical marijuana via state constitutional amendment
- North Dakota appears poised to pass medical marijuana initiative
- Early Arkansas and Montana results suggesting more winning medical marijuana reforms
- Massachusetts votes to legalize recreational marijuana and Maine might have too
- California and Nevada on path to legalize recreational marijuana, but Arizona not that into it
Eager for thoughts on who President-Elect Donald Trump should or will appoint as to SCOTUS and as Attorney General
I have never been a big fan of conventional wisdom, and the 2016 election results reminds me why. And while I am certain the coming days and weeks will have lots and lots of pundits looking back, I am already eager to look forward by trying to figure out whom President-Elect Donald Trump will be eager to put into the positions that can and will likely have the greatest impact on sentencing law and policy in the coming years. As the title of this post highlights, who President-Elect Trump will select to serve on the Supreme Court and to serve as Attorney General seem to me to be the most important early decisions he will make that could shape the future of sentencing jurisprudence and doctrine.
Notably, at least three persons named by Trump as possible SCOTUS nominees have notable sentencing reform interests or history: Senator Mike Lee, Judge William Pryor, and Judge Amul Thapar. I am not versed on the sentencing work of others' on Trump's SCOTUS nominee lists, but I am looking forward to learning more about whomever he decides to nominate. Given his "law and order" campaign themes and the role played by three "tough on crime" former US Attorneys as close advisers, I am expecting Trump will seek to be drawn to an Attorney General who will echo these kinds of sentiments.
Long story short, as a CNN commentator is saying as I write this, the election of Donald Trump creates a "new world order," and I am already starting to think dynamically about who will be constructing this new world and and how it will approach "law and order."
Sentencing reform's (uncertain?) future after huge election wins for Republicans, the death penalty, marijuana reform and state sentencing reforms
It is now official that Republican have retained control of both houses of Congress, and it seems now a near certainty that Donald Trump will soon officially be our nation's President Elect. What that might mean for the future of federal sentencing reform will be the subject of a lot of future posts. For now, I just want to wrap up the story of dynamic state ballot initiatives in the states by spotlighting that they showcase a pretty consistent national criminal justice reform message for all local, state and national officials.
1. The death penalty still has deep and broad support in traditionally conservative states like Nebraska and Oklahoma, and clearly still has majority support even in a deep blue state like California.
4. Recreational marijuana reform has seemingly significant support in blue states after winning this year in California and Massachusetts and Nevada and probably Maine, but in the red state in Arizona it could not garner a majority this year.
Fascinating mixed criminal justice initiative results developing in California
Though a little under 40% of all precincts have been reported, the early results on all the criminal justice reform ballot initiatives in California reported here indicate this fascinating mixed bag of criminal justice reform developments:
Proposition 57 reforming "Criminal Sentences & Juvenile Crime Proceedings" is winning 64% to 36%
Proposition 62 "Repeal of Death Penalty" is losing 45% to 55%
Proposition 64 enacting "Marijuana Legalization" is winning 56% to 44%
Proposition 66 providing for "Death Penalty Procedure Time Limits" is winning 51.5% to 48.5%
In other words, the largest state in our Union has voted again against repealing its death penalty and seems to be voting for a competing reform intended to speed up the path of condemned murderers from death row to the execution chamber. At the same time, this state has enacted via initiative yet another significant reform to its non-capital sentencing system that seems likely to further reduce the state's modern heavy reliance on incarceration. And the state with a huge population and a "local" economy that is of truly global significance will now be fully turning away from the criminalization of recreational marijuana use by adults.
Nebraska voters resoundingly rejecting its legislature's abolition of state's death penalty
Though the votes are not all in, this official Nebraska election page has enough results and those results are lopsided enough that I feel comfortable concluding that Nebraskans have decided to preserve its death penalty. The votes now in show 60% of voters deciding to repeal the legislation that abolished the death penalty in the state. Together with the similarly strong pro-death penalty vote in Oklahoma, it is certainly clear that folks in the heartland are not eager to turn away from the ultimate punishment.
November 8, 2016
In Oklahoma, ballot initiative on death penalty wins big and sentencing reform initiatives also win
Though hard to figure out from just looking at this official Oklahoma election page, it appears that all the sentencing ballot issues being considered by voters passed:
State Question 776 has won 66.5% to 34.5%, thereby amending the Oklahoma Constitution to guarantee the state’s power to impose capital punishment and set methods of execution.
State Question 780 has won 58% to 42%, thereby reclassifying certain state property offenses and simple drug possession as misdemeanor crimes.
State Question 781 as won 56% to 44%, thereby taking the savings from reclassifying certain offenses to fund rehabilitative programs, including substance abuse and mental health treatment programs.
"How Do You Vote in Prison and Jail? For the most part, you don’t."
The title of this post is the headline of this new Slate article which serves as a fitting final Election Day post before I gear up to post about Election Day results. Here are excerpts:
People who are incarcerated find creative ways to do things the rest of us don’t have to think much about.... But how do they vote in elections?
Well, they mostly don’t. In almost every state, the law states that incarcerated people are not allowed to cast ballots. In fact, most states even impose voting restrictions on former prisoners who are out on parole, and a few states — Kentucky, Florida, Iowa, and Virginia — have lifetime disenfranchisement laws for anyone who has ever been to prison. These laws combine to prohibit an estimated 6.1 million Americans from voting, per one October 2016 estimation. There is a movement among criminal justice advocates to restore voting rights for felons, but the politics of reform on this issue are notoriously complicated and again, vary state by state.
There are two states that currently afford prison inmates the right to vote while in confinement: Maine and Vermont. Inmates in both states vote through absentee ballots rather than on-site polling places. Utah, New Hampshire, and Massachusetts also used to allow prisoners to vote, but they don’t anymore. In Massachusetts the change came after a group of inmates tried to form a political action committee in 1997 pressing for better health care and less expensive phone calls, leading then-Gov. Paul Cellucci to propose a constitutional amendment to prohibit inmate voting that passed in 2000.
So that’s prisons. Local jails are a different story, because most of the people confined in them on any given day are in pretrial detention — meaning they haven’t yet been convicted of whatever crime they’ve been arrested for — or they’ve been convicted of misdemeanors. While there are a handful of states that ban people serving time for misdemeanors from voting, it’s fair to say that most jail inmates and detainees — roughly 750,000 Americans at any given time — are legally allowed to cast ballots as long as they are otherwise eligible. (They will also most likely do so via absentee ballots, though it’s technically possible for jails to have polling places on-site.)
That doesn’t mean a lot of them end up actually doing it, though there are jails around the country that make a special effort to encourage inmates to exercise their right. In the Cook County facility in Chicago, the largest jail in America, a voter drive effort organized this year by lawyer Michelle Mbekeani-Wiley has resulted in about 1,000 new registered voters and 1,600 absentee ballots cast....
Other jails that are known for helping inmates exercise their right to vote include those in Washington, D.C., Philadelphia, and San Francisco. In Suffolk County, Massachusetts, volunteers from the League of Women Voters this year helped register about 300 inmates (out of a total jail population of about 1,600); in New York, jail officials distributed voter registration forms and informational fliers in the facilities’ public areas, including law libraries and barber shops. Such efforts are outliers, however, and typically depend on the initiative of outside advocacy groups.
Should and will SCOTUS take up Rommell Broom's constitutional claim that Ohio cannot try again to execute him after botched first attempt?
SCOTUSblog recently posted here its list of "Petitions to Watch" from the Supreme Court's scheduled conference of November 10, 2016, and all five cases on the list involve criminal justice issues. But the last of the listed petitions concerns a remarkable Ohio capital case that has been previously discussed on this blog, and is described this way:
Broom v. Ohio, No. 16-5580
Issues: (1) Whether the first attempt to execute the petitioner was cruel and unusual under the Eighth and 14th Amendments to the United States Constitution and if so, whether the appropriate remedy is to bar any further execution attempt on the petitioner; (2) whether a second attempt to execute the petitioner will be a cruel and unusual punishment and a denial of due process in violation of the Eighth and 14th Amendments to the United States Constitution; and (3) whether a second attempt to execute the petitioner will violate double jeopardy protections under the Fifth and 14th Amendments to the United States Constitution.
I could discuss at great length not only why this case is so jurisprudentially interesting, but also why either a grant or a denial of cert at this stage of the litigation could prove quite interesting and controversial. Rather than go off on such matters, however, I will be content for now to link to some of my prior posts on this this case:
- Ohio struggling, legally and practically, with effort to execute offender (Sept 2009)
- Details on the botched Ohio execution attempt, issue spotting, and seeking predictions (Sept 2009)
- Will (and when and how will) SCOTUS have to weigh in on Ohio's desire to try execution again? (Sept 2009)
- Latest litigation update surrounding Ohio's unexecuted and re-execution plans (UPDATED with stay details) (Sept 2009)
- Federal hearing about constitutionality of Ohio's re-execution attempt pushed back months (Sept 2009)
- "Ohio GOP lawmakers: Execution process can be fixed" (Nov 2009)
- Ohio finally gets its execution protocol in order (and praised) (Nov 2012)
- "Does failed execution attempt mean Ohio prisoner can avoid death penalty?" (June 2015)
- Split Ohio Supreme Court decides state allowed to try again to execute Rommell Broom after prior botched attempt (March 2016)
- "How many times should a state be able to try to execute someone without running afoul of the Constitution?" (March 2016)
Is the likely federal sentencing guideline range for "Bridgegate" defendants convicted last week at least 3 to 4 years in federal prison?
As noted in this prior post, late last week a federal jury returned guilty verdicts against Bridget Anne Kelly, the former deputy chief of staff to NJ Gov Chris Christie, and Bill Baroni, the former deputy executive director of the Port Authority of New York and New Jersey on seven federal criminal charges stemming from the so-called "Bridgegate" scandal. This Wikipedia page provides lots of background on the scandal, and this lengthy New York Times article about the convictions provides these hints about the federal sentencing issues to now be debated as a February sentencing for Ms. Kelly and Mr. Baroni looms:
A federal jury convicted two former allies of Gov. Chris Christie on Friday of all charges stemming from a bizarre scheme to close access lanes at the George Washington Bridge to punish a New Jersey mayor who declined to endorse the governor’s re-election. Though only the two defendants, Bridget Anne Kelly and Bill Baroni, were tried in the so-called Bridgegate case, the scandal surrounding the lane closings in September 2013 left Mr. Christie deeply wounded....
David Wildstein, who was installed as the governor’s enforcer at the Port Authority of New York and New Jersey, which operates the bridge, pleaded guilty to orchestrating the lane closings and became the prosecution’s chief witness....
Facing about 50 reporters and television cameras outside the federal courthouse here on Friday, the United States attorney for New Jersey, Paul J. Fishman, said that his office brought charges against only the people it believed a jury would find guilty beyond a reasonable doubt. There was substantial documentary evidence, he said, to corroborate Mr. Wildstein’s testimony about Ms. Kelly and Mr. Baroni, once Mr. Christie’s top staff appointee at the Port Authority....
The convictions carry a maximum sentence of 20 years in prison, but under federal guidelines, Ms. Kelly and Mr. Baroni are likely to get far less time. Mr. Fishman said Friday that under federal guidelines, Mr. Wildstein would be sentenced to 20 to 27 months in prison, but that he was likely to get “credit” from the judge for his cooperation. Prosecutors were likely to recommend longer terms for Mr. Baroni and Ms. Kelly, Mr. Fishman said, because they did not accept responsibility for their crimes and because prosecutors believe that they did not testify truthfully.
Judge Susan D. Wigenton set sentencing for Feb. 21.
I found at this link a copy of the plea agreement in which Mr. Wildstein agreed to plead guilty to two counts and to have his guideline calculation add up to an offense level 16 (including a three-point downward adjustment for acceptance of responsibility). Such an offense level for a first offender accounts for his applicable guideline range being set at 21-27 months before he gets any further cooperation credit for his substantial assistance in the prosecution of Ms. Kelly and Mr. Baroni. Assuming the same basic guideline calculations for Mr. Baroni and Ms. Kelly, but now without any benefit for acceptance of responsibility AND with a two-point enhancement for obstruction of justice based on testifying falsely, it seem they are facing an offense level of 21 (at least), and thus looking at an advisory guideline range of 37-46 months (at the lowest).
I can certainly imagine all sorts of arguments that could possibly be made by federal prosecutors to try to drive up the applicable guideline range further, but I suspect that USA Paul Fishman and his line prosecutors will be content to argue for a federal prison sentence in the range of three to four years. I would also expect that defense attorneys for Ms. Kelly and Mr. Baroni will look for ways to contest any guideline range enhancement and will also advocate forcefully under the provisions of 18 USC 3553(a) for a sentence below whatever the guideline range is calculated to be.
Because I am going to be turning this real case into a real-world teaching exercise in my sentencing class, I would be grateful to have informed (or even uniformed) folks provide any insights or ideas about how they expect the sentencing for Ms. Kelly and Mr. Baroni and Mr. Wildstein to play out in the week ahead.
Prior related post:
- "Bridgegate" now a federal sentencing story after two former New Jersey officials convicted on all federal counts after lengthy jury deliberations
November 8, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (5)
Some Election Day headlines for sentencing fans ... (to read while waiting in line to vote?)
I am about to head out to vote, and I have the great fortune (and white privilege?) of a local polling place where there is almost never a line to impede or slow down my voting efforts. (And this year I have the extra excitement of getting to see one of my teenagers serving as a poll worker. I am so very proud of her willingness to go through the local training and get up at 5am this morning in order to help everyone have an easy and smooth experience exercising the franchise.)
I am certain that starting this evening I will be blogging about results of key elections for those interested in sentencing reform (as partially previewed here), though I fear it will not be until Wednesday until we know about all the big initiative votes in California because polls there do not close until 11pm EST. Before that time, though, I am hopeful we might have a sense of the outcomes of the big marijuana reform votes on the East Coast (especially in Florida, Maine and Massachusetts) and also of the death penalty votes in the Heartland (Oklahoma and Nebraska).
In the meantime, I have collected here some headlines and links to stories that provide a kind of Election Day starter. Though I sincerely hope readers do not experience long lines or waits to vote, perhaps these stories can help some pass the time:
- "Voters in California and Nebraska will decide whether they want to keep the death penalty"
November 7, 2016
"Extreme Prison Sentences: Legal and Normative Consequences"
The title of this post is the title of this intriguing looking new paper authored by Melissa Hamilton now available via SSRN. Here is the abstract:
The American criminal justice system has an obsession with lengthy prison sentences. From theoretical perspectives, harsh penalties may be justified to retributively punish heinous criminals, to incapacitate dangerous people, and to deter potential wrongdoers. But for a penalty to achieve any of these purposes it must still be proportional to the offense and offender. A disproportionately severe sentence is harmful in being unnecessary and tyrannical in nature.
This Article reports on an empirical study of extreme sentences, which is defined to include sentences of imprisonment of at least 200 years. The author compiled an original dataset of extreme sentences issued in the federal sentencing system. Since the year 2000, federal judges sentenced 55 individuals to prison terms ranging from 200 to 1,590 years. At such a length, these sentences may appear irrational as they are beyond any person’s natural lifespan, particularly as the federal system provides no opportunity for parole. Thus, it may be of interest to understand how and why such extraordinary sanctions came to fruition and to confront the consequences thereof in terms of normalizing extreme prison sentences.
The study undertook quantitative and qualitative analyses of a variety of sources related to the cases in the dataset. The sources included statistical databases, case opinions, governmental press releases, and news reports. The study results revealed that the discourses underlying extremely long sentences generally (a) justified them for the theoretical purposes of retribution, incapacitation, and/or deterrence; (b) approved them on proportionality grounds; (c) regarded the penalties as the practical equivalent of life sentences; (d) represented an exclusionist mindset; (e) relied upon dehumanizing caricatures; and (f) presented with cognitive biases, such as anchoring and scaling effects.
In the end, however, the Article still questions whether the extreme nature of these sentences is rational in any circumstance as they represent penalties that no person can possibly complete. And even if a prison term of at least two centuries may be a proper one, the author posits that such a penalty appears disproportionate for multiple cases in the dataset. At least a few of the defendants, for example, were nonviolent, first-time offenders. Further, the federal judiciary’s acceptance of sentences of these extreme lengths has normative consequences that likely will continue to have a ratchet effect in future cases.
Split Fourth Circuit panel concludes Virginia’s geriatric release program insufficient to save juve LWOP sentences from violating Graham
A Fourth Circuit panel today handed down a lengthy split decision today in LeBlanc v. Mathena, No. 15-7151 (4th Cir. Nov. 7, 2016) (available here), concerning the application of the Supreme Court's Eighth Amendment Graham ruling in Virginia. Here is how the majority opinion by Judge Wynn gets started:
Graham v. Florida, 560 U.S. 48, 74 (2010), held that “the Eighth Amendment forbids the sentence of life without parole” for juvenile offenders convicted of nonhomicide offenses. Accordingly, the Supreme Court held that States must provide juvenile nonhomicide offenders sentenced to life imprisonment with “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.” Id. at 75.
Nearly a decade before the Supreme Court decided Graham, Respondent, the Commonwealth of Virginia, sentenced Petitioner Dennis LeBlanc to life imprisonment without parole for a nonhomicide offense he committed at the age of sixteen. In light of Graham, Petitioner sought postconviction relief from his sentence in Virginia state courts. The state courts denied Petitioner relief, holding that Virginia’s geriatric release program — which was adopted more than fifteen years before the Supreme Court decided Graham and will allow Petitioner to seek release beginning at the age of sixty — provides the “meaningful opportunity” for release that Graham requires.
Mindful of the deference we must accord to state court decisions denying state prisoners postconviction relief, we nonetheless conclude that Petitioner’s state court adjudication constituted an unreasonable application of Graham. Most significantly, Virginia courts unreasonably ignored the plain language of the procedures governing review of petitions for geriatric release, which authorize the State Parole Board to deny geriatric release for any reason, without considering a juvenile offender’s maturity and rehabilitation. In light of the lack of governing standards, it was objectively unreasonable for the state courts to conclude that geriatric release affords Petitioner with the “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation” Graham demands. Id. Accordingly, Petitioner is entitled to relief from his unconstitutional sentence.
Judge Niemeyer issued a lengthy dissent that gets started this way:
In affirming the grant of Dennis LeBlanc’s habeas petition brought under 28 U.S.C. § 2254, the majority holds that the Virginia Supreme Court concluded unreasonably that Virginia’s geriatric release program provided a meaningful opportunity for release to juveniles and therefore satisfied the requirements of Graham v. Florida, 560 U.S. 48 (2010). Graham forbids sentencing juveniles to life in prison without parole for nonhomicide crimes. In reaching its conclusion, the majority relies simply on its expressed disagreement with the Virginia Supreme Court’s decision in Angel v. Commonwealth, 704 S.E.2d 386 (Va. 2011), and effectively overrules it. The Virginia court’s opinion, however, is demonstrably every bit as reasonable as the majority’s opinion in this case and should be given deference under § 2254(d)(1).
Especially because the "swing" vote on this panel came from a district judge sitting by designation, I think there is a decent chance this case might get further consideration by the Fourth Circuit sitting en banc. I also would expect Virginia to seek Supreme Court review if it does not seek or secure en banc review.
November 7, 2016 in Assessing Graham and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)
Interesting array of distinctive sentencing articles in Louisiana Law Review’s Fall 2016 issue
A helpful reader alerted me to this new symposium issue of the Louisiana Law Review with four distinct articles on four distinct criminal sentencing topics. The publication follows the live symposium earlier this year, reported here, which was titled "Throw Away the Key: Criminal Sentencing Reform in the 21st Century." Here are the four article from that issue:
Restitution and the Excessive Fines Clause by Kevin Bennardo
The Right to Redemption: Juvenile Dispositions and Sentences by Katherine Hunt Federle
Incomplete Sentences: Hobby Lobby’s Corporate Religious Rights, the Criminally Culpable Corporate Soul, and the Case for Greater Alignment of Organizational and Individual Sentencing by Kenya J.H. Smith
"Global Overview of Sex Offender Registration and Notification Systems"
A helpful reader altered me to this interesting publication with the same title as this post. The publication was produced by the Justice Department's Office of Sex Offender Sentencing, Monitoring, Apprehending, Registering, and Tracking (known as SMART). Here is its introduction:
Sex offender registration and notification systems have proliferated around the world over the last twenty years. After the United States’ first national-level sex offender registration law was passed in 1994, 29 additional countries have enacted sex offender registration laws. A handful of these systems are more analogous to what would be considered a CHRI (criminal history record information) database as opposed to a ‘registry’, but are included in this overview for the sake of thoroughness.
The following countries have laws governing sex offender registration systems at the national and/or provincial level: Argentina, Australia, Bahamas, Canada, Chile, Cyprus, France, Germany, India, the Republic of Ireland, Jamaica, Kenya, Maldives, Malta, New Zealand, Nigeria, Portugal, South Africa, South Korea, Spain, Taiwan, Trinidad & Tobago, United Kingdom and Commonwealth Nations (Bermuda, Gibraltar, Guernsey, Isle of Man, Jersey, and the Pitcairn Islands), and the United States.
The following countries have considered or are considering sex offender registration and notification laws, but such laws have not yet passed: Austria, Barbados, Belgium, Belize, Cayman Islands, Fiji, Finland, Hong Kong, Israel, Malaysia, Poland, Samoa, St. Lucia, Switzerland, United Arab Emirates, and Zimbabwe.
What follows in this SMART Summary is a brief snapshot of the sex offender registration and notification laws in each of the countries that have enacted such provisions, sequenced in chronological order of the first country in a continent or region to implement such laws. Statutory references, where available, are provided. In addition, the footnotes contain additional references which might assist the reader in finding out more detailed information about the countries’ sex offender registration and notification provisions.
As this is a rapidly developing area of the law, and many statutes have not been officially translated into English, the reader is encouraged to check for the current versions of any nation’s provisions and consult official translations, rather than relying solely on this SMART Summary.
What are the elections that followers of sentencing reform are (or should be) watching especially closely?
On this Election Day eve, I am debating whether I should be putting together some kind of "Sentencing Reformers' 2016 Election Guide." There are some obvious elections that everyone will obviously be watching which obviously will impact the fate of major sentencing reform efforts. Who becomes Prez elect and which party controls the US Senate will, of course, be a focal point for all Election Night coverage, and these representative democracy outcomes will directly influence the direction and shape of future federal statutory sentencing reform developments.
In addition, those who care a lot about the state and fate of capital punishment will be following closely the big repeal/retain votes in California and Nebraska (and perhaps a lower-consequence vote in Oklahoma). And those who care a lot about about the state and fate of marijuana reform will be following closely the big full legalization votes in five states (Arizona, California, Maine, Massachusetts, Nevada) and the medical marijuana votes in four other states (Arkansas, Florida, Montana, North Dakota).
Not to be overlooked among the higher-profile ballot initiatives are (arguably more consequential) state sentencing reform initiatives in California (Prop 57) and Oklahoma (State Questions 780 and 781). And, as detailed via this Governing round-up, there are various other "criminal justice" ballot initiatives in various states dealing with victim rights and gun control and a few other issues that surely can echo through sentencing systems.
In addition to all this action, I suspect there may some (lower-profile?) "sleeper" federal, state or local races in which candidates or issues could have a pretty big impact on sentencing reform. I would be grateful to hear from readers in the comments about any particular races/issues they are following particularly closely with an eye on current and future sentencing realities.
Are there any of the elections mentioned above that readers think are especially important for sentencing reform?
Are there elections I have not flagged that ought to be on the radar screens of sentencing reformers?
UPDATE: Via Twitter, I was alerted to this new article from The Nation which spotlights local Arizona DA up for re-election whose race might be of interest to readers of this blog. The full headline of the article provides a taste of its contents: "This Arizona Prosecutor Is Waging a Strange War on Weed — and That’s Just the Beginning: Bill Montgomery is up for election tomorrow."
Focus on the federal death penalty as capital trial begins for Charleston mass murderer Dylann Roof
Today marks the start in Charleston, South Carolina of the highest-profile federal capital trial since the death sentencing of the Boston Marathon bomber. Here are some local and national stores/headlines providing some context and a sense of what to expect in the courtroom:
Meanwhile, for those unsure what some in the traditional media think about this capital case, here are links to a recent Los Angeles Times editorial and a New York Times op-ed arguing against capital punishment even in this case of mass murder in which there is no doubt about guilt:
"Public Attitudes toward Punishment, Rehabilitation, and Reform: Lessons from the Marquette Law School Poll"
The title of this post is the title of this new article now available via SSRN authored by Michael O'Hear and Darren Wheelock. Here is the abstract:
Since the late 1990s, many opinion surveys have suggested that the American public may be growing somewhat less punitive and more open to reforms that emphasize rehabilitation over incarceration. In order to assess current attitudes toward punishment, rehabilitation, and the criminal justice system, we collected survey data of 804 registered voters in Wisconsin.
Among other notable results, we found strong support for rehabilitation and for the early release of prisoners who no longer pose a threat to public safety. However, we also found significant divisions in public opinion. For instance, while black and white respondents largely shared the same priorities for the criminal justice system, black respondents tended to see the system as less successful in achieving those priorities. Additionally, we found significant differences in the views of Democrats and Republicans, with Republicans more likely to favor punishment as a top priority and Democrats more likely to support rehabilitation. Finally, we found that survey respondents that hold negative views of African Americans are significantly less likely to support rehabilitation, even after statistically controlling for the other variables in the model.
November 6, 2016
Do we need to worry seriously about voter confusion in the states in which the future of the death penalty is on ballot?
The question in the title of this post is prompted by this recent article from Governing headlined "As Voters Decide Death Penalty's Fate, Ballots Confuse Some: This year's proposals aren't as simple as marking whether you're for or against capital punishment." Here are excerpts:
The death penalty is legal in 30 states, but a growing number have repealed it in the last decade. Depending on the election, California and Nebraska could be next. While voters in those two states decide whether to do away with capital punishment, voters in Oklahoma — where botched executions have led to a temporary moratorium — could strengthen their state's ability to carry it out....
[But] like the issue of capital punishment, this year's ballot measures on the topic are complicated.
In Nebraska, the state legislature overrode their governor to repeal the death penalty in 2015, but the law never went into effect because opponents gathered enough signatures to put a referendum on the ballot. If voters ultimately uphold the law, it would be the first state under GOP control to ban capital punishment since 1973.
But first, voters will have to figure out which side they stand on — something that could be difficult for many. The ballot measure gives voters two options: "repeal" or "retain." People who choose "repeal," as confusing as it may be, won't be voting to repeal the death penalty — they'll be voting to repeal the legislature's repeal of the death penalty and thus keep the option of executions available.
Nebraska GOP Gov. Pete Ricketts is campaigning in favor of capital punishment and has contributed about $400,000 to the effort. In his veto letter to state lawmakers last year, he said their vote on a death penalty ban “tests the true meaning of representative government.” Though a bipartisan majority of legislators overrode his veto, Ricketts may be correct that the public is with him: An August poll found that about 58 percent of likely voters in Nebraska are in favor of the death penalty.
In California, the ballot features two conflicting propositions — one that would repeal the death penalty and another that would keep it. If both measures earn a majority of votes, whichever gets more will go into effect. Most polls suggest the pro-death penalty measure will pass.
And in Oklahoma, the legality of capital punishment isn't up for a vote. Instead, voters will decide whether to add a section to the constitution that affirms the state’s authority to carry out executions, regardless of which method is used. After several botched executions, the state halted any future ones until further notice. Oklahoma's ballot measure would also exempt the death penalty — but not specific methods of execution — from being invalidated by courts as cruel and unusual punishment. "It takes away the debate on whether or not we should have capital punishment," said state Rep. John Paul Jordan in an interview with The Oklahoman. "It allows us to direct our attention as a Legislature towards how we implement it and how we do it in the most humane way possible.”
Critics of the Oklahoma ballot question say the constitutional amendment is unnecessary, undermines the authority of the courts and could invite expensive lawsuits. Several civil rights experts have raised concerns that the measure would strip citizens of their constitutional protections against cruel and unusual punishment. Nevertheless, a July poll found that more than 70 percent of likely voters supported the constitutional amendment.
Although polling in all three states suggest that a majority of voters support the death penalty, there's evidence that the framing of the question makes a major difference in how people respond. I n Oklahoma, when likely voters were asked if they supported the death penalty, three-quarters said yes. But when given the option of eliminating the death penalty and replacing it with a life sentence without parole, along with other financial penalties, a slight majority favored a ban on the death penalty.
"Life Without the Possibility of Parole for Juvenile Offenders: Public Sentiments"
The title of this post is the title of this new paper authored by Jennifer Gongola, Daniel Krauss and Nicholas Scurich. Here is the abstract:
The United States Supreme Court recently abolished mandatory life in prison without the possibility of parole (LWOP) for juvenile offenders, holding that the practice was inconsistent with the 8th amendment’s cruel and unusual punishment clause, and its “evolving standards of decency” jurisprudence. The Court explicitly left open the question of whether non-mandatory LWOP is consistent with these constitutional standards.
This paper examines the public’s sentiment concerning juvenile LWOP. An online sample (n = 599) weighted to be representative of the U.S. population was queried about juvenile LWOP as a general policy and in response to a specific case in which they had to impose a prison sentence on a juvenile convicted of murder. The age of the juvenile was experimentally manipulated. Overall, 31% of participants favored juvenile LWOP as a general policy while 55% were willing to impose juvenile LWOP in the specific case presented. The age of the juvenile moderated this effect, such that participants were more willing to impose LWOP on a 16-year-old than a 12-year-old both as a general policy matter and in response to the specific case vignette. A majority of participants were consistent in their preferred punishment across both frames, including 30% who selected LWOP.
Political affiliation was the only demographic variable that predicted consistency in preferred punishment across the two frames. Additionally, participants who consistently endorsed juvenile LWOP placed greater emphasis on retribution and deterrence as goals of punishment while individuals who evidenced inconsistent punishment preferences placed a greater emphasis on rehabilitation.
November 6, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (22)
Another big NYC white-collar sentencing produces another way-below-guideline sentence
This USA Today article, headlined "Wall Street fraud sentencing prompts tears and debate," provides the highlights of a high-profile federal fraud sentencing that took place in Manhattan on this past Friday. Here are some of the details:
It was an emotional federal court sentencing, with the future of an Ivy League-educated former private equity executive hanging in the scales of justice.
The prosecution said Andrew Caspersen, a scion of a wealthy business family, should get as much as a 15-year-plus prison sentence for executing a Ponzi-like scam that collectively bilked about a dozen of his clients, family members, and his investment company out of roughly $46 million. The defense said Caspersen never intended to steal and betray. Asking for leniency, his attorney, Paul Shechtman presented evidence to show the 40-year-old father of two had been gripped by a pathological gambling addiction.
On the bench in the 14th-floor Manhattan courtroom sat U.S. District Judge Jed Rakoff, a renowned legal independent and author of a recent essay that almost seemed to foreshadow the proceeding. "Distinctions of intent frequently determine, as a matter of law, the difference between going to prison and going free," Rakoff wrote in The New York Review of Books in his examination of neuroscience and the law. What ensued was a nearly three-hour debate over whether and how much gambling addiction should factor in the sentence — complete with references to "The Gambler," a short novel by Fyodor Dostoyevsky.
By the end, Caspersen and his wife, Christina, wept as they held one another in the courtroom. Shechtman brushed away tears of his own. And Manhattan U.S. Attorney Preet Bharara issued a statement that noted Caspersen had been sentenced — but made no comment on the punishment.
The prosecution attacked the gambling addiction defense from the start. Assistant U.S. Attorney Christine Magdo argued that 2014-2016 scam run by the Princeton University and Harvard Law School graduate had been carefully calculated. In a sentencing memo to the court, she noted that Caspersen fooled his roughly dozen victims by incorporating sham entities with names similar to real private equity firms.
The victims lost millions. Some, investment professionals themselves, declined to present victim statements by name, fearing the reputational loss of being fooled. Magdo added that Caspersen used much of the scam proceeds to pay the mortgage and two home equity credit lines on a Manhattan apartment, as well as a $3 million home in Bronxville, a wealthy suburb of New York City....
Shechtman submitted dozens of support letters to the court, including pleas for leniency from Caspersen's wife, friends, and even the doorman of his Manhattan co-op. The defense also turned to scientific and financial trading experts. Dr. Marc Potenza, a Yale University School of Medicine psychiatry professor and mental health expert on addiction, examined Caspersen and reviewed his health records in preparation for testifying at the sentencing hearing. "Mr. Caspersen suffered from a severe gambling disorder, a mental illness, and there is little doubt that it contributed substantially to him losing his own money and seek money by fraud from others to continue on the same destructive path," Potenza wrote in a letter to the court....
Citing the experts' conclusions, Shechtman urged Rakoff to weigh the "tragic dimension" of Caspersen's gambling addiction.... Caspersen fought back tears as he addressed the court before being sentenced. "I have committed serious crimes of fraud, and have no one to blame but myself," he said. "I stand before you asking for mercy."...
After more than an hour of testimony and questioning of Potenza, Rakoff said he deemed it "more likely than not" that gambling addiction existed and could be a mitigating factor. Still, he stressed it must be weighed with other factors in the case. "It was a substantial fraud," said the judge. "It was a fraud that involved the deception of people who had a lot of faith in the defendant."
Ultimately, Rakoff sentenced Caspersen to four years in prison, followed by three years of supervised release, and nearly $28 million in restitution. "No purpose would be served by having him rot in prison for years on end," said the judge. He characterized federal sentencing guidelines that would allow the far longer sentence sought by prosecutors as "absurd." And, referring to the likelihood that some might question the leniency, Rakoff said outsiders didn't know all the facts of the case.
I cannot find any indication that Judge Rakoff has or plans to write up his sentencing conclusions in a formal opinion, but I sincerely hope he does. For consistent and cogent sentencing even after Booker made the guidelines advisory, it is critical in my view not only for federal district judges to consider thoughtfully all the 18 USC 3553(a) sentencing factors, but also for them to produce written opinions to explain how they weighed those factors in high-profile cases in which they significantly deviate from the ranges suggested by the guidelines.
November 6, 2016 in Booker in district courts, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, White-collar sentencing, Who Sentences? | Permalink | Comments (2)