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November 18, 2016

So who is happy or sad about Jeff Sessions for Attorney General?

consider this an open thread.

UPDATE:  I just remembered that Senator Jeff Sessions was long an advocate for equalizing crack and powder cocaine sentences.  Through the FSA enacted in 2010, the notorious 100-1 crack/powder ratio was reduced to roughly 18:1.  I would think it very valuable and very wise for various folks interested in drug sentencing reform to unearth and promotes just what Senator Sessions said in the past on this front.

November 18, 2016 in Drug Offense Sentencing, Who Sentences? | Permalink | Comments (38)

November 16, 2016

A few (of many, many, many) reasons I am rooting really, really, really hard for Ted Cruz to be our next Attorney General

CruzI am so excited by this developing news that Ted Cruz is perhaps going to be our nation's next Attorney General.  Let me report the basic news and then set out just a few reasons why I think all Americans who are committed to the rule of law — including the most ardent Trump supporters and especially the most ardent Trump haters — should want Prez-Elect Trump to be calling Cruz, rather than, "Lyin' Ted," Attorney General Rafael Edward Cruz:

President-elect Donald Trump is considering nominating Texas Senator Ted Cruz to serve as U.S. attorney general, according to a person familiar with the matter.

Cruz, 45, was at Trump Tower in New York on Tuesday. When approached by reporters on his way out, Cruz said the election was a mandate for change but didn’t say he was under consideration for a job.

Cruz unsuccessfully sought the Republican presidential nomination. He and Trump were at odds during the primary, viciously attacking one another. Trump nicknamed Cruz “Lyin’ Ted.” Cruz didn’t endorse Trump during a speech at the Republican National Convention in Cleveland. In September, relations between the two men seemed to improve when Cruz said he would vote for Trump.

I could likely write a hundred posts explain why everyone interested in criminal justice reform generally, or sentencing reform and marijuana reform in particular, should be much more excited about Ted Cruz as Attorney General than any of the other names that have been floated. For now, I will just start with the three main reasons I am so thrilled:

1. The profoundly personal: Like far too many people, I tend to assume people who have a similar background to me think a lot like me. Ergo, I must admit that my (unhealthy?) "man love" for Ted Cruz may have a lot to do with these aspects of his background (via Wikipedia):

Cruz graduated cum laude from Princeton University in 1992 with a Bachelor of Arts in Public Policy from the Woodrow Wilson School of Public and International Affairs.... Cruz's senior thesis at Princeton investigated the separation of powers; its title, Clipping the Wings of Angels, draws its inspiration from a passage attributed to US President James Madison: "If angels were to govern men, neither external nor internal controls on government would be necessary." Cruz argued that the drafters of the Constitution intended to protect the rights of their constituents, and that the last two items in the Bill of Rights offer an explicit stop against an all-powerful state.

After graduating from Princeton, Cruz attended Harvard Law School, graduating magna cum laude in 1995 with a Juris Doctor degree. While at Harvard Law, he was a primary editor of the Harvard Law Review...

Cruz married Heidi Nelson in 2001. The couple has two daughters, Caroline and Catherine.... She is currently taking leave from her position as head of the Southwest Region in the Investment Management Division of Goldman, Sachs & Co. and previously worked in the White House for Condoleezza Rice and in New York as an investment banker. Cruz has joked, "I'm Cuban, Irish, and Italian, and yet somehow I ended up Southern Baptist."

As some readers may know, I graduated from the same university and law school as Senator Cruz (two years earlier, so I never met him), and I also was extremely lucky to meet and marry a beautiful blonde woman who is a lot different than me (and smarter than me) and who has blessed me with two daughters.

2. The principled political: I have long been impressed with Cruz's willingness and eagerness to combine political acumen with principled commitments. Though I tend not to be a fan of the tactic of shutting down the government, I am a fan of anyone who will be driven even to the point of serious career risk to make a principled stand based on principled beliefs.  This Cruz character was on display throughout the 2016 campaign: at first, before the voting started, Cruz worked with Donald Trump because he say Trump as a voice for outsiders.  Once the voting started, Cruz treated Trump with respect and also tried to highlight how he was more principled and had more personal character than Trump.  Then, rather than avoid going to the Republican National Convention (as did Gov John Kasich and other establishment types that Trump defeated), Cruz went into the Trumpian lion's den and told all Republicans and all Americans to vote their conscience.

Now that Americans in key states have all voted their conscience and Trump is Prez-Elect, Cruz is not licking his wounds and plotting how to make Trump fail.  Instead, Cruz is apparently willing and perhaps eager to serve all Americans in the Executive Branch after a number of years in which he served only Texans in various ways as a state official and then as a US Senator.  Moreover, this past political history (not to mention his Princeton University senior thesis) would seem to ensure that Cruz would not serve as a Trump toady as Attorney General.  I make this point because I think the last two Presidents first selected (ground-breaking) accomplished lawyers to serve as attorney general (Alberto Gonzales and Eric Holder) who were, in my view, not-very-successful in part because they were perceived to be (and likely were) far too cozy personally and politically with the President.

3. Criminal justice reform:  There are dozens of reasons I think an Attorney General Cruz would be great for adding momentum to the criminal justice reform movement.  I will not try to list all those reasons here and will just instead link to prior posts on this blog highlighting some reasons I sincerely hope I get to talk about Attorney General Cruz on this blog in the coming months and years, with a few posts emphasized that I think everyone MUST read ASAP:

"On Criminal Justice Reform, Ted Cruz Is Smarter Than Hillary Clinton"

Are Senators Mike Lee and Ted Cruz now back on the same page with respect to sentencing reform?

Can Senator Ted Cruz, who says "Smarter Sentencing Act Is Common Sense," get SSA through Congress?

"The Prison Reformer Who Champions Ted Cruz"

Shouldn't true fiscal conservatives question a federal program with 600% recent spending growth?

"Criminal Sentencing Reform: A Conversation among Conservatives"

Spotlighting that nearly all GOP Prez hopefuls are talking up sentencing reform

November 16, 2016 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (22)

"Race, Place, and Capital Charging in Georgia"

The title of this post is the title of this new article authored by Sherod Thaxton, which seems especially timely because Georgia has an execution scheduled for this evening that seems likely to go forward and would result in Georgia having executed more condemned murderers so far this year than Texas. Here is the abstract:

The U.S. Supreme Court has identified three types of constitutionally impermissible errors in the administration of capital punishment: arbitrariness, discrimination, and disproportionality.  In this essay, I describe an empirically-anchored analytical framework for defining, identifying, and measuring these concepts.  I then illustrate the usefulness of the framework by examining prosecutors' death penalty charging decisions in Georgia over an eight-year period.  The results strongly suggest that prosecutorial decision-making in Georgia continues to be plagued by the very errors that led the Court to invalidate Georgia's capital punishment system forty years ago.

November 16, 2016 | Permalink | Comments (3)

November 15, 2016

Looking for the best "anti-Garland" on Prez-Elect Donald Trump's SCOTUS not-so-short list

Virginia-slimsAs explained in this post eight months ago, I was deeply disappointed that Prez Obama "decided to nominate to the Supreme Court to replace Justice Antonin Scalia, an old white guy who graduated from Harvard Law School and worked for the Justice Department before serving on the DC Circuit, none other than Chief DC Circuit Judge Merrick Garland, another old white guy who graduated from Harvard Law School and worked for the Justice Department before serving on the DC Circuit."  As this sentence was meant to highlight, my disappointment in the selection by Prez Obama was focused on six particular attributes of Judge Garland (and Justice Scalia), and here in rank order is what I disliked from most bothersome to least:

1.  Old: Garland at age 63 was the oldest person nominated to be an associate Justice in over 100 years other than Prez Nixon's nomination of Lewis Powell at age 64.  With all due respect to people who are eager to work well after retirement age, I generally think it better for most jurists after a two decades on the bench to be thinking seriously about retirement, rather than about starting a new job.

2.  Harvard Law SchoolWith all due respect to my alma mater and its rivals Yale and Stanford, only two of the previous 16 nominees to the Supreme Court did not attend at some point HLS or YLS or SLS: John Paul Stevens (Northwestern) and Harriet Miers (SMU). Though I am proudly a product of elite coastal educational institutions, my 20 years teaching at Ohio State (and teaching as a visitor at Colorado and Fordham) has reinforced and deepened my strong belief that a whole lot of elite lawyers and supremely qualified jurists have degrees from law schools other than Harvard, Yale and Stanford.

3.  DC Circuit Judge: Even after Justice Scalia's passing, three of the current Justices had previously served on the DC Circuit (Chief Justice Roberts and Justices Ginsburg and Thomas).  As a close follower of criminal justice jurisprudence (which makes up almost 50% of the SCOTUS docket), there are many reasons I think judicial experience as a DC Circuit Judge is especially bad: (a) the DC Circuit sees very few criminal cases and zero state habeas cases, (b) the DC Circuit is "inside the Beltway" and so judging is always going to be distinctly "politicized" on that court, and (c) the very few criminal cases DC Circuit judges do see are highly unrepresentative of criminal cases throughout the nation.  Among the reasons I have liked the last three appointments to SCOTUS (Justices Alito, Sotomayor and Kagan) is because none of them came up from the DC Circuit; also Justice Sotomayor had been a federal district judge before becoming a circuit judge, and Justice Kagan had never been a judge.  I sincerely believe that the Supreme Court's criminal justice jurisprudence has improved considerably in recent years thanks to the collective work of Justices Alito, Sotomayor and Kagan (and I say this as one of the few fans of the Blakely/Booker cases which predate their arrival). 

4.  Formerly worked for USDOJRegular readers are likely aware of my complaints about the persistent appointment of what I might call "big government" prosecutors/insiders, i.e., people who spent at least some of their formative professional years advocating on behalf of (ever-exanding) government powers.  Here are snippets from the official SCOTUS bios of the last five confirmed SCOTUS appointments to the Supreme Court:  "Special Assistant to the Assistant U.S. Attorney General [and] Assistant Special Prosecutor" (Breyer); "Special Assistant to the Attorney General" (CJ Roberts); "Deputy Assistant Attorney General, U.S. Department of Justice [and] U.S. Attorney, District of New Jersey" (Alito); "Assistant District Attorney in the New York County District Attorney's Office" (Sotomayor); "Solicitor General of the United States" (Kagan).  Those eager for courts to check and limit the powers of governments (especially the federal government) need not look past these professional realities to understand why it so often seems that "the little person" asserting rights against some big government rarely prevails before a group of people who, in many, many, many ways, owe their professional success to the increasing size of government with fewer and fewer constitutional restraints. 

5.  MaleAccording to this Wikipedia entry, as of 2016, there have been 161 formal nominations to SCOTUS, and only five have been women (O'Connor, Ginsburg, Meirs, Sotomayor, Kagan).  For those good at math, you should know that this is just over 3% of all appointments (and, disgracefully in my view, a bunch of men bullied Meirs into withdrawing before she even got a hearing and she was replaced by Justice Alito).  As of the 2010 census, women comprised 51% of the US population, and I am so proud that Prez Obama increased the historical number of women appointed to SCOTUS from around 1.8% to 3.1%.  But, especially as the father of two teenage daughters, I am not quite ready to say "you have come a long way, baby." 

6.  White: Of 161 formal SCOTUS nominees, only three have been people of color (T. Marshall, Thomas, Sotomayor).  Given that 72% of the nation identified white as of the 2010 census, I suppose I should just be grateful Prez Obama nominated one person of color to SCOTUS.  But, beyond the fact that now close to 25% of the nation identifies black or Latino, there are lots of other large diverse minority groups in the US, as this official US Census article notes.  For example, as of 2010, Asians were now 5% of the US population, and "grew faster than any other major race group between 2000 and 2010."  In addition, I think a powerful argument might be made, especially given the exclusive federal jurisdiction in Native lands and on many US Islands, that SCOTUS ought to have someone from the 2.5% of the US population that consider themselves at least in part "American Indian and Alaska Native (5.2 million) and Native Hawaiian and Other Pacific Islander (1.2 million)."

So, based on this discussion and my prior criticism of Prez Obama's nomination of Judge Garland, I think my ideal pick to replace Justice Scalia would be (1) young (ideally under 50), (2) an alum of some school other than HLS, YLS or SLS, (3) not a DC Circuit Judge, (4) not a former prosecutor or DOJ employee, (5) a woman, and (6) not white.  For the record, in case anyone cares or thinks my own biases color my judgment, I satisfy only three of these six criteria — as does, quite interestingly, Prez Obama and Prez-Elect Donald Trump and defeated candidate Hillary Clinton (though none us satisfy the same three of these six criteria).

I have not yet had a chance to drill down deeply into all 21 of the lawyers appearing on Prez-Elect Donald Trump's SCOTUS not-so-short list to see who may satisfy the most of my ideal criteria, but I was inspired to do this post by some recent articles from The National Law Journal and the New York Times discussing the diversity on some attributes of some of the persons on the Trump SCOTUS list.  I do not believe there is a woman of color on the Trump list, so I think it may be impossible for any of the 21 to hit all of my key six diversity attributes.  But it is certainly possible (and I am hopeful) that there are more than a few candidates on the list who satisfy five or at least four of these attributes.  And in the wake of Prez -Elect Trump's past criticism of a federal judge based on his ethnicity, I suspect I am not the only one now culling his lists on various distinct diversity grounds.

And, to preempt any complaints that I am worrying way too much about "identity politics," as an academic in a University community that talks a lot about diversity attributes, I could readily devise a long list of other attributes that could also be important to consider if we aspire to have SCOTUS become a more "representative" institution: e.g., personal or professional history (a SCOTUS nominee could be a non-lawyer); religion (e.g., no Mormons or avowed atheists have even been a Justice); military service (who was last veteran on SCOTUS?); socio-economic status (who was last first-generation college SCOTUS nominee?), marital/parenting history (the last two nominees were single), disability, sexual orientation, citizenship or criminal history and on and on.

November 15, 2016 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (15)

"Advocates Look To Obama For 'Unprecedented' Action On Federal Prison Sentences"

The title of this post is the headline of this astute new BuzzFeed News article that flags some issues and raises various questions that I have been thinking a lot about ever since last Wednesday around 2am. Here are highlights:

In recent months, President Obama has stepped up the pace of federal clemency — issuing three large batches of commutations in the month before the presidential election. The White House has regularly pushed those numbers as evidence that Obama has done more than his predecessors to address unfairness he has criticized in criminal sentencing.

But now that he is due to be replaced by Donald Trump, who ran in part by saying he would be a “law and order” president, leading advocates of the clemency process say it is the time for Obama to step up and do more. “[I]f President Obama believes these sentences are unjust, it is his constitutional responsibility to fix them,” Rachel Barkow, a member of the United States Sentencing Commission and NYU law professor, told BuzzFeed News this week....

To that end, the group, co-founded by Van Jones, will be in Washington this week, holding a series of events — including a vigil in front of the White House on Monday evening — urging Obama to take “unprecedented” action on clemency in the coming months.

Mark Osler, a law professor at the University of St. Thomas School of Law, acknowledged that time is short. “I think there will be — and should be — a sense of urgency,” he said on Friday. “I think the clearest thing is to find efficiencies — find ways to look at more people over these last weeks in a way that’s consistent and effective, in terms of evaluation. And that means, probably, looking at categories of people and identifying them specifically.”

Specifically, he pointed to “people who did not get the benefit of the Fair Sentencing Act in 2010” — which addressed cocaine-to-crack sentencing disparities in federal law, but was not retroactive. As such, Osler explained, many people “were stuck with a life sentence or the 10-year mandatory [minimum]” who could not receive that sentence today....

There has, though, been an election — one that likely will reflect at least somewhat different values on criminal justice issues, Osler acknowledged. “It’s fair to say that those people within this administration are very aware that the amount of care that they give to criminal law — and the excesses of criminal law — probably won’t be reflected in the next administration,” he said. Nonetheless, Osler said that Obama’s two elections more than suffice as a rationale for why Obama should continue pressing forward with the Clemency Project in his final months in office. “He’s the elected president until January 20, 2017,” he said. “I don’t think you sit back and don’t make full use of every day that you have.”

Barkow put it in similarly broad terms — but with a historical context. “Clemency is critical to an effective federal criminal justice system,” Barkow noted, pointing out that Alexander Hamilton wrote in The Federal Papers about the important role clemency plays in the American system. “The President has only a couple months to reach everyone. The fate of these people and their loved ones rests in his hands, and one of his lasting legacies can be to reaffirm Hamilton’s view that both ‘humanity and good policy’ require the broad use of the pardon power.”

In addition to my adoration for Rachel Barkow's always-timely Hamilton reference (and how it made me think of one of my favorite songs), I especially like Mark Osler's discussion of both the challenges and justifications for Prez Obama going bold on clemency over the next two months. For reasons I have explained in this Veterans Day post, I would especially love to see Prez Obama go bold in granting clemency for any and all veterans serving distinctly long federal sentences or still burdened by a federal conviction long after any public safety rationales for continued punishment have been extinguished.

Sing along with me Prez Obama and fellow clemency fans (with apologies to Lin-Manuel Miranda):

Prez Washington:

I wanna talk about [clemency righting]
I want to warn against partisan fighting
Pick up a pen, start writing
I wanna talk about what I have learned
The hard-won wisdom I have earned...
The people will hear from me
One last time
And if we get this right
We’re gonna teach ‘em how to say Goodbye
You and I—

Sec. Hamilton:

Mr. President, they will say you’re weak

Prez Washington:

No, they will see we’re strong

Sec. Hamilton:

Your position is so unique

Prez Washington:

So I’ll use it to move them along

Sec. Hamilton:

Why do you have to say goodbye?

Prez Washington:

If I say goodbye, the nation learns to move on
It outlives me when I’m gone
Like the scripture says:
“Everyone shall sit under their own vine and fig tree
And no one shall make them afraid.”
They’ll be safe in the nation we’ve made
I wanna sit under my own vine and fig tree
A moment alone in the shade
At home in this nation we’ve made
One last time

November 15, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Some sentencing question after Georgia jury verdicts of guiltly on all counts of murder, child cruelty and sexting for Justin Ross Harris

9859581_GA horribly awful (and high-profile and very interesting) state criminal case resulted yesterday in a jury verdict of guilt on all counts.  This new CNN article, headlined ""Jury finds Justin Ross Harris guilty of murder in son's hot car death," provides some details about the case that has prompted some sentencing questions for me.  Here are excerpts (with emphasis added on points that prompt follow-up sentencing questions):

A jury in Georgia on Monday found Justin Ross Harris guilty of murder in the 2014 death of his 22-month-old son, Cooper. Harris, 35, was accused of intentionally locking Cooper inside a hot car for seven hours. On that same day, Harris was sexting with six women, including one minor, according to phone records.

In addition to three counts of murder, Harris was found guilty of two counts of cruelty to children for Cooper's death, and guilty of three counts relating to his electronic exchanges of lewd material with two underage girls.  "This is one of those occasions where actions speak louder than words," Cobb County Assistant District Attorney Chuck Boring said after the verdict. "He has malice in his heart, absolutely."

The trial, which spanned almost five weeks, was moved to the Georgia coastal town of Brunswick from Cobb County, outside Atlanta, after intense pretrial publicity. It was briefly interrupted by Hurricane Matthew. The Glynn County jury of six men and six women deliberated for 21 hours over four days.  Jurors considered the testimony of 70 witnesses and 1,150 pieces of evidence, including the Hyundai Tucson in which Cooper died in a suburban Atlanta parking lot.

Justin Ross Harris waived his right to testify in his own defense. Cobb County prosecutors argued that Harris intentionally locked Cooper inside his car on a hot summer 2014 day because he wanted to be free of his family responsibilities. Harris' lawyers claimed the boy's death was a tragic accident brought about by a lapse in memory. 

It was June 18, 2014, when Harris, then 33, strapped his son into a rear-facing car seat and drove from their Marietta, Georgia, home to Chick-fil-A for breakfast, then to The Home Depot corporate headquarters, where he worked. Instead of dropping Cooper off at day care, testimony revealed Harris left him in the car all day while he was at work.  Sometime after 4 p.m. that day, as Harris drove to a nearby theater to see a movie, he noticed his son was still in the car. He pulled into a shopping center parking lot and pulled Cooper's lifeless body from the SUV. Witnesses said he appeared distraught and was screaming. "'I love my son and all, but we both need escapes.' Those words were uttered 10 minutes before this defendant, with a selfish abandon and malignant heart, did exactly that," said Boring in his closing argument.

The prosecution argued that Harris could see his son sitting in his car seat in the SUV. "If this child was visible in that car that is not a failure in memory systems," Boring argued. "Cooper would have been visible to anyone inside that car.  Flat out."  If Cooper was visible, Boring said, "the defendant is guilty of all counts."  After the verdict, jurors told the prosecution that the evidence weighed heavily in their decision, Boring said.

Digital evidence showed that on the day his son died, Harris exchanged sexual messages and photos with six women, including one minor. State witnesses testified that Harris lived what prosecutors described as a "double life."  To his wife, family, friends and co-workers, Harris was seen as a loving father and husband. But unbeknownst to them, Harris engaged in online sexual communication with multiple women, including two underage girls, had extramarital sexual encounters in public places and paid for sex with a prostitute.

Harris' defense maintained that his sexual behavior had nothing to do with Cooper's death. "The state wants to bury him in this filth and dirt of his own making, so that you will believe he is so immoral, he is so reprehensible that he can do exactly this," said defense attorney H. Maddox Kilgore during his closing argument.  Kilgore argued that Cobb County police investigators focused only on matters that fit the state's theory and ignored all the evidence that pointed to an accident. "You have been misled throughout this trial," Kilgore told jurors.  The defense lawyer continued to maintain his client's innocence after the verdict. He said he plans to appeal the verdict. "When an innocent person is convicted there's been some breakdowns in the system and that's what happened here," Kilgore told reporters outside the courthouse. "From the moment we met Ross Harris we've never, ever once wavered in our absolute belief that he is not guilty of what he's just been convicted of."

The defense's key witness was Harris' ex-wife and Cooper's mother, Leanna Taylor. "Cooper was the sweetest little boy. He had so much life in him. He was everything to me," Taylor recalled, as she seemed to fight through tears. For two days, Taylor told jurors private details of her married life with Harris, saying they had intimacy problems and recounting Harris' struggles with pornography.  Marital struggles aside, Taylor described Harris as a "very involved" parent who loved their son. In her mind, she said, the only possible explanation was that Harris "forgot" Cooper and accidentally left him in the car.  Boring said it did not matter that Taylor declined to speak with the prosecutor's office and testified for the defense. "As far as proving the case we did not need her," he told CNN.

Harris is expected to be sentenced December 5. He could face life without parole, though Boring said the prosecution will speak with the family to determine what kind of sentence to ask for.

Especially for sentencing scholars and advocates like me who worry a lot about about white criminals being treated more leniently than similarly-situated or less culpable minority criminals, I have three follow-up sentencing questions based on this case and its forthcoming sentencing in a Georgia state court:

1.  Should we be troubled that the local prosecutor in this case apparently exercised his discretion not to pursue capital punishment in a case in which the white defendant was apparently guilty of intentionally boiling his 22-month son to death?

2.  Should we be troubled that Georgia sentencing provisions, if I am understanding the law properly based on this "'Truth in Sentencing' in Georgia" documentrequires a mandatory LWOP for an adult offender who commits two armed robberies, but only requires a mandatory 25-life for intentionally boiling a toddler to death?

3.  Should we be troubled that the local prosecutor in this case, who already strikes me as unduly lenient for not even pursuing a capital charge, is now apparently willing (after a jury conviction on all counts) to exercise his discretion to seek a more lenient sentence from the sentencing judge based on the sentencing desires of the (white) wife of the murderer?

November 15, 2016 in Celebrity sentencings, Death Penalty Reforms, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (9)

November 14, 2016

"A comeback for the death penalty?"

The question in the title of this post is the headline of this CNN commentary authored by Austin Sarat. Here are excerpts:

For supporters of capital punishment the most consequential development was the election of Donald Trump. Trump is such a vocal and enthusiastic supporter of capital punishment that, in December of 2015, he promised members of the New England Police Benevolent Association that he would issue an executive order as president containing the "strong, strong statement" that he wants the death penalty for those found guilty of killing a police officer. "Anybody," Trump said, "killing a policeman, a policewoman, a police officer, anybody killing a police officer: Death penalty is going to happen, okay?"

Trump's election is likely to put on hold any prospect that the Supreme Court will take up Justice Stephen Breyer's recent invitation to his fellow justices to reconsider the constitutionality of capital punishment.

The results of referendum questions on the ballot in California, Nebraska and Oklahoma also brought bad news for abolitionists. Voters in California delivered a double-barreled blow.  They rejected Proposition 62, a measure which would have replaced capital punishment for murder with life in prison without parole.  They also approved by a narrow margin a separate measure intended to speed up executions.  That measure designates special courts to hear challenges to death penalty convictions, limits successive appeals and expands the pool of lawyers who could handle those appeals.

Nebraska voters, by a margin of 61% to 39%, approved reinstating that state's death penalty one year after state legislators voted to abolish it.  In Oklahoma, 66% of voters supported State Question 776 declaring that the death penalty cannot be considered cruel and unusual under the state constitution. It added a provision that "any method of execution shall be allowed, unless prohibited by the United States Constitution."

Despite these electoral victories, the likelihood of a reversal of fortune for capital punishment is remote.  The high costs of capital prosecutions, serious doubts about the reliability of capital convictions, concerns about arbitrariness in death sentencing, and the difficulty of finding reliable methods of execution remain.  These issues have allowed death penalty opponents to build their case state by state, appealing to public officials and offering them a different way to frame opposition to capital punishment.

Over the last decade, that strategy has led to judicial or legislative abolition in New York, New Jersey, New Mexico, Illinois, Connecticut, Maryland, Nebraska (a decision reversed by Tuesday's referendum) and Delaware.  Its success can also be seen in the dramatic drop in the number of death sentences handed out across the United States.  They have been cut from 315 in 1996 to 49 in 2015. The number of executions also has declined significantly, going from 98 in 1999 to 28 last year.

These changes have occurred because abolitionists have reframed the way many judges, legislatures, and governors think about capital punishment. The focus of political and legal debates has moved from moral and philosophical abstractions toward a careful consideration of the way the death penalty works in practice. Even after the recent election, public officials can continue to oppose the death penalty by questioning whether its day-to-day practices are compatible with central American values, like due process and equal treatment....

While they did not persuade the citizens of California, Nebraska or Oklahoma, opponents of the death penalty have made substantial progress with the American public. A 2015 national survey conducted by the Pew Research Center found that 71% of Americans believed that there is some risk that an innocent person will be put to death and only 26% thought that there are adequate safeguards in place to make sure that does not happen. That same survey found that 52% of respondents agreed that minorities are more likely than whites to be sentenced to death for similar crimes.

Because of these concerns about the risk of executing the innocent and about racial discrimination in capital sentencing, 42% of the public now opposes the death penalty, the highest such opposition has been since 1972. Last week's electoral results are a reminder that the death penalty continues to have powerful populist and symbolic appeal, but it does not foretell a comeback for capital punishment. Abolitionists will remain on the offensive, and America still seems to be on the road to abolition.

November 14, 2016 in Campaign 2016 and sentencing issues, Death Penalty Reforms, Who Sentences? | Permalink | Comments (0)

November 13, 2016

Respond to Election 2016 outcomes by writing a commentary for the Federal Sentencing Reporter

1.cover-sourceWearing my hat as an editor of the Federal Sentencing Reporter, I am happy to reproduce a solicitation from the journal below (and I am eager to encourage regular readers to put together their views ASAP for possible publication):

Seeking Commentaries for Federal Sentencing Reporter Special Issue to provide “Advice for the new Congress and new Administration”

Every election cycle presents a notable opportunity for new discussions and debate over the state and future of the federal criminal justice system, especially when the election comes at the close of a two-term presidency.  And after considerable talk before the campaign season of bipartisan agreement over the need for federal sentencing reforms, the 2016 campaign saw the two leading candidates take divergent tacks when discussing crime and punishment.  Democratic candidate Hillary Clinton spoke of the need for “end-to-end reform” of the criminal-justice.  In sharp contrast, GOP candidate (and now President Elect) Donald Trump stressed the themes of "law and order."

With the election of Donald Trump and with both houses of Congress to be under the control of the same party as the President Elect, the incoming Congress and new Administration could seek to move forward swiftly with criminal justice reforms. But what form might new reforms take?  In a short document entitled "Donald Trump's Contract with the American Voter," the President-Elect pledged to work with Congress to establish new mandatory minimum prison terms for certain immigration offenses, to create a task force on violent crime, and to increase funding for federal law enforcement agencies and federal prosecutors.  But beyond these few pledges, it remains quite unclear whether or how the new Trump Administration or the incoming Congress might want to make a criminal justice reform priority.

In light of these developments and related uncertainty, the editors of the Federal Sentencing Reporter have decided to create a special Forum opportunity to invite judges, lawyers and other sentencing practitioners, legal academics and sentencing researchers, to share "Advice for the new Congress and new Administration."  We hope that contributors to this special issue of FSR can help provide both general ideas and specific proposals for how the new Congress and new Administration should approach criminal justice reform issues, especially as they relate to federal sentencing law and policy.

FSR seeks to publish short commentaries — ranging in length from a few paragraphs to a few pages — on any federal crime and punishment topics authored in any reasonable form to provide “Advice for the new Congress and new Administration.” Commentaries could tackle big structural issues (such as whether the time has come to radically change the advisory guideline system), smaller technical issues (such as how to revise statutory mandatory minimum drug sentencing provisions), or any other topic of interest or concern to modern federal sentencing policy and practice.

FSR hopes to publish in its December 2016 and February 2017 issues all proper commentaries submitted before the end of this year.  Submissions must be received no later than November 28 for possible publication in the December issue and not later than December 24 for the February issue.  Submissions should be sent electronically to sentencinglaw @ gmail.com with a clear indication of the author and the author’s professional affiliation.  All judges, lawyers and other sentencing practitioners, legal academics and sentencing researchers, and any others with an informed interest in federal sentencing law, policy and practice are encouraged to submit a commentary.

November 13, 2016 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (2)

"Judicial Challenges to the Collateral Impact of Criminal Convictions: Is True Change in the Offing?"

The title of this post is the title of this notable new essay authored by Nora Demleitner. Here is the abstract:

Judicial opposition to disproportionate sentences and the long-term impact of criminal records is growing, at least in the Eastern District of New York.  With the proliferation and harshness of collateral consequences and the hurdles in overcoming a criminal record, judges have asked for greater proportionality and improved chances for past offenders to get a fresh start.  The combined impact of punitiveness and a criminal record is not only debilitating to the individual but also to their families and communities.  A criminal case against a noncitizen who will be subject to deportation and a decade-long ban on reentry and three different requests for expungement will demonstrate how three federal judges struggled with the long-term effects of the current sentencing and collateral consequences regime.  These cases exemplify both judicial creativity and judicial impotence, as the courts have to call upon the support of other actors within the executive and legislative branches for change, in these individual cases and systemically.

These judicial critics of the current approach argue within an emerging normative framework that is coming to dominate the societal discourse on punishment.  Increasingly some offenders are deemed “worthy” of receiving our assistance in reintegration.  They are generally nonviolent first offenders, those with an unblemished record save for the offense of conviction, those who have been gainfully employed or desperately want to work, and those who have cared for their children.  They present no danger to the community, and their continued punishment may negatively impact them, their surroundings, and ultimately the country.  On the other hand, those labeled violent or sex offenders or terrorists are being considered dangerous, unredeemable, and deserving of the harshness the criminal justice system has brought to bear on them.  The specific categorization of offenses, the definitions of terms, and the categorization of offenders remain fluid, contingent, and subject to constant revision.  Still, these judicial efforts expand on the incipient efforts at full reintegration of some of those with a criminal record. Whether their challenges will resonate with their colleagues and in other branches of government remains to be seen.

November 13, 2016 in Collateral consequences, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

"Hard Bargains: The Coercive Power of Drug Laws in Federal Court"

11_HardBargainsThe title of this post is the title of this soon-to-be released book by Mona Lynch that is now at the very top of my holiday wish/reading list. Here is the publisher's description of the book:

The convergence of tough-on-crime politics, stiffer sentencing laws, and jurisdictional expansion in the 1970s and 1980s increased the powers of federal prosecutors in unprecedented ways.  In Hard Bargains, social psychologist Mona Lynch investigates the increased power of these prosecutors in our age of mass incarceration.  Lynch documents how prosecutors use punitive federal drug laws to coerce guilty pleas and obtain long prison sentences for defendants — particularly those who are African American — and exposes deep injustices in the federal courts.

As a result of the War on Drugs, the number of drug cases prosecuted each year in federal courts has increased fivefold since 1980.  Lynch goes behind the scenes in three federal court districts and finds that federal prosecutors have considerable discretion in adjudicating these cases.  Federal drug laws are wielded differently in each district, but with such force to overwhelm defendants’ ability to assert their rights.  For drug defendants with prior convictions, the stakes are even higher since prosecutors can file charges that incur lengthy prison sentences — including life in prison without parole.

Through extensive field research, Lynch finds that prosecutors frequently use the threat of extremely severe sentences to compel defendants to plead guilty rather than go to trial and risk much harsher punishment.  Lynch also shows that the highly discretionary ways in which federal prosecutors work with law enforcement have led to significant racial disparities in federal courts.  For instance, most federal charges for crack cocaine offenses are brought against African Americans even though whites are more likely to use crack.  In addition, Latinos are increasingly entering the federal system as a result of aggressive immigration crackdowns that also target illicit drugs.

Hard Bargains provides an incisive and revealing look at how legal reforms over the last five decades have shifted excessive authority to federal prosecutors, resulting in the erosion of defendants’ rights and extreme sentences for those convicted.  Lynch proposes a broad overhaul of the federal criminal justice system to restore the balance of power and retreat from the punitive indulgences of the War on Drugs.

November 13, 2016 in Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)