December 31, 2016
Split Sixth Circuit ruling upholding protective order concerning lethal injection drugs might(!?!) enable Ohio to get back into execution game
As this local article reports, in the afternoon of the last business day of 2016, a Sixth Circuit panel "upheld a protective order shielding the state of Ohio from having to disclose the names of those who make or use the state's lethal-injection drugs." Here is more about the ruling and its context:
In a 2-1 decision, the appeals court panel ruled that a district court judge was justified in issuing the secrecy order, which was made on the grounds that it was needed to protect lethal-injection drugmakers from public intimidation and harassment. The lawsuit, brought by more than 65 death-row inmates, contended that the state shouldn't be allowed to use drugs procured from anonymous suppliers and evaluators.
Ohio had postponed its next three executions by several weeks at the behest of a federal magistrate, who feared the appeals court wouldn't make this ruling before a Jan. 3 court hearing for the first three inmates scheduled to die. As a result, Gov. John Kasich delayed the resumption of executions from Jan. 12 to Feb. 15, starting with convicted child killer Ronald Phillips of Akron. It's unclear whether that revised schedule will stay in place now that the appeals court has ruled....
Ohio hasn't executed anyone since January 2014, when killer Dennis McGuire took 25 minutes to die from a previously unused execution drug combination. State officials and the courts put executions on hold until the state picked a new lethal-injection drug combination of midazolam, rocuronium bromide and potassium chloride last October....
In 2014, state lawmakers passed a secrecy law hoping to encourage small-scale drug manufacturers called compounding pharmacies to make its lethal-injection drugs.
The full ruling is available at this link, and the fact that the panel opinion included a dissent could entail further en banc or SCOTUS appeals on just this semi-procedural issue involving a protective order. Even without further appeals, though, there is an evidentiary review on tap for the first week of January concerning Ohio's new execution drug protocol, and that litigation has already led in part to a short delay of scheduled executions. In other words, this Sixth Circuit panel ruling may clear one obstacle for Ohio resuming executions, but there are additional litigation road-blocks still ahead.
December 30, 2016
Third Circuit reverses (short) sentence based in part on "bare arrest record" ... JAN 3, 2017 UPDATE: Opinion VACATED at "the direction of the Court" ... AND on Jand 9, 2017 the opinion returns
A number of helpful readers made sure I did not miss the significant sentencing opinion handed down by a Third Circuit panel in US v. Mateo-Medina, No. 15-2862 (3d Cir. Dec. 30, 2016) (available here). Here is how the opinion starts:
Maximo Mateo-Medina appeals his sentence of twelve months plus one day imprisonment for illegally reentering the United States, in violation of 8 U.S.C. § 1326(a) and (b)(1). Although Mateo-Medina pled guilty to the offense, he now appeals the sentence, arguing that the sentencing court violated his Due Process Clause rights by impermissibly considering, among other things, arrests that did not result in convictions. The Presentence Investigation Report (PSR) that disclosed those arrests did not contain any of the underlying conduct. For the reasons set forth below, we agree and we will therefore vacate the sentence that was imposed and remand for resentencing.
The opinion includes citations to considerable research regarding "disparities in arrest rates," and it ultimately holds that the district court's sentencing decision amounted to plain error in a final section which notes that "calculating a person’s sentence based on crimes for which he or she was not convicted undoubtedly undermines the fairness, integrity, and public reputation of judicial proceedings."
UPDATE on January 3, 2017: Another helpful reader today sent me this link to a one-page Third Circuit order which reads: "At the direction of the Court, the opinion and judgment entered on December 30, 2016 are hereby VACATED." Hmmm.
ANOTHER UPDATE on January 9, 2017: I was again alerted by a helpful reader that, as evidenced here, US v. Mateo-Medina, No. 15-2862 is back and seemingly as good as ever. Color me confused and curious, but ultimately pleased to learn that this seemingly sensible opinion remains good law.
December 29, 2016
BJS releases three big reports on correctional populations throughout the United States
Via email today I received news of and links to a bunch of big data reports from the Bureau of Justice Statistics (which is part of the Office of Justice Programs at the U.S. Department of Justice). Here are the titles, links and descriptions of these notable new publications:
This report presents statistics on persons supervised by adult correctional systems in the United States at yearend 2015, including persons supervised in the community on probation or parole and those incarcerated in state or federal prison or local jail. The report describes the size and change in the total correctional population during 2015. Appendix tables provide statistics on other correctional populations and jurisdiction-level estimates of the total correctional population by correctional status and sex for selected years.
This report presents final counts of prisoners under the jurisdiction of state and federal correctional authorities at yearend 2015, including admissions, releases, noncitizen inmates, and inmates age 17 or younger. The report describes prisoner populations by—
- most serious offense
- demographic characteristics.
Selected findings on prison capacity and prisoners held in private prisons, local jails, and the U.S. military and territories are also included. Findings are based on data from BJS's National Prisoner Statistics program, which collects data from state departments of correction and the Federal Bureau of Prisons.
This report presents information on changes in the jail inmate population between 2000 and 2015 by—
- demographic characteristics
- conviction status
- average daily population
- rated capacity of local jails
- percent of capacity occupied.
It also includes statistics, by jurisdiction size, on changes in the number of inmates, admissions, and weekly turnover rate from 2014 to 2015. Estimates and standard errors were based on BJS's Annual Survey of Jails.
Will Ohio get back in the business of state killing in 2017?
The question in the title of this post is prompted in part by my awareness of lots of messy on-going litigation in the Buckeye State over execution protocols and in part by this new local AP article headlined "Court weighs challenge of order blocking Ohio execution info." Here are excerpts from the AP piece:
A federal appeals court is weighing a challenge by attorneys for death row inmates of a judge's order blocking them from information about Ohio's new lethal injection process. The pending decision by the 6th Circuit Court of Appeals will help determine whether Ohio will proceed with its first executions in three years beginning in February.
Ohio plans to execute Ronald Phillips on Feb. 15 for raping and killing his girlfriend's 3-year-old daughter in 1993. Another execution is scheduled for April.
At issue are new efforts the state is making to shield information about lethal injection in hopes of jumpstarting executions in Ohio, which have been on hold since January 2014. That's when it took condemned inmate Dennis McGuire 26 minutes to die from a never-before-used two-drug method while he repeatedly gasped and snorted.
For example, a 2015 law blocks anyone from getting information about individuals or entities participating in executions, including companies that make or mix drugs. The 6th circuit last year upheld that law while rejecting free speech allegations raised by death row inmates.
What's before the appeals court now is a protective order issued by a federal judge last fall that bars the release of information about lethal injection requested by attorneys for Phillips and two other inmates scheduled for execution in 2017. That order, by retired Judge Gregory Frost, held that the state's need to obtain the drugs outweighs concerns by death row inmates that the information is needed to meaningfully challenge the source of the drugs, such as names of the manufacturers.
Federal Magistrate Judge Michael Merz in Dayton cited the current 6th Circuit case earlier this month when he put executions on hold. He said the hold could be lifted after the court rules. Attorneys for death row inmates argue they can't meaningfully challenge the use of the drugs without the information. They also said the secrecy protections are unnecessary given the history of lawsuits over lethal injection in Ohio....
The Department of Rehabilitation and Correction in October announced plans to use a new three-drug combination — midazolam, rocuronium bromide and potassium chloride — for at least three executions. Phillips and other inmates want to block the new procedure, arguing that it will result in a painful and barbaric death.
"Clemency seeker to Obama: please don't forget us"
The title of this post is the headline of this new CNN commentary, authored by Alice Marie Johnson. Here is how it gets started and concludes:
The week before Christmas, President Obama gave a second chance -- in the form of clemency -- to 231 people. I was not among them, but since many of them, like me, were incarcerated on drug-related charges, I feel I know their stories. I am only one of thousands of first-time, non-violent offenders given a mandatory and lengthy prison terms after committing a crime under financial distress.
In 1996, I was given a death sentence without sitting on death row. I was convicted as a first-time nonviolent drug offender to life behind bars in federal prison. Since I went to prison, the laws governing my wrong-doing have changed. If I were convicted again today for the same crime, my life might look very different.
Last month, as I was preparing to put on a short play I wrote, entitled "The Strength To Be," a fellow inmate pulled me aside and gave me the news that the Obama Administration had just started announcing its next slate of clemencies. My mind went racing. What if this could be my chance to be reunited with the outside world, to see my family or what is left of it?
For 20 years I have been incarcerated, and I won't lie, it's hard to keep the hope of freedom alive for that long. But my faith in God has carried me this far. Despite the impending announcement, I knew that the show had to go on. I channeled the uncertainty of my future into my play and danced a duet to Whitney Houston's song, "I Didn't Know My Own Strength."...
I want this part to be clear: I acknowledge that I have done wrong. I made the biggest mistake of my life to make ends meet and got involved with people selling drugs. This was a road I never dreamed of venturing down. I became what is called a telephone mule, passing messages between the distributors and sellers. I participated in a drug conspiracy and I was wrong.
My trial took a toll on my family. At the time of my conviction, I had two children in college and a senior in high school. Bryant, the senior, ended up dropping out of school because of the trial. Tretessa had a good paying job with Motorola and was flying down to support me. Members of the community were at my hearings encouraging me and hoping for the best.
But I was convicted on October 31, 1996 -- and sentenced to life in prison. The day after my oldest son Charles "celebrated" his 20th birthday. It was his first birthday spent away from me. It's hard to imagine that I have now served 20 years of my life sentence for that one mistake. The United States leads the world in incarceration rates, with five percent of the world's incarcerated population and one-quarter of the world's prisoners. I am one of thousands of first-time, nonviolent offenders who were given mandatory lengthy prison terms.
During my two decades in here, I've become an ordained minister and a mentor to young women who are also in prison. And if I get out -- I have a job secured, and plan to continue to help those in prison and work hard to change our justice system. My daughter started a petition to President Obama asking him to grant me clemency, and more than 100,000 people have signed it. It a source of strength and hope for me -- a chance to be free.
The President has made an incredible push at helping to right the wrongs of our criminal justice system. I applaud him and hold out hope for me and thousands of others who face lifelong sentences for nonviolent crimes. But with the historic Obama administration coming to an end, this could be a last chance at freedom for me and for many others -- so I also hope he moves quickly. I hope his administration will process all the applications for clemency currently waiting for the President's review.
No matter what happens, I was not built to break. I will keep writing. I will continue to hold my head high and live a productive life either as a free woman or here behind bars. God has shown me my strength.
Federal military execution seemingly on track for mass rapist/murderer
This CNN article, headlined "US military could carry out first execution in over 50 years," reports on some notable developments in a notable federal capital setting. Here are the interesting details:
A former US Army soldier who has been on death row since 1988 for raping and murdering several women could now face execution after a judge denied his bid for another stay of execution. Judge J. Thomas Marten of the US District Court for the District of Kansas wrote last week that a previously granted stay of execution to Ronald Gray was "no longer in effect," denying his request to further block the military from carrying out the death sentence.
If Gray is put to death, it will be the first military execution since 1961, when John Bennett was hanged at Fort Leavenworth prison in Kansas after he was convicted of raping and attempting to kill an 11-year-old Austrian girl. The current military method of execution is lethal injection.
Gray is one of six former servicemen currently on the military's death row at Fort Leavenworth. The most recent addition to that group is former Army Maj. Nidal Hasan, who was convicted of 13 counts of murder and 32 counts of attempted murder after his 2009 shooting rampage in Fort Hood, Texas.
Gray was convicted and condemned to death in military court in 1988 for two murders and three rapes in the Fayetteville, North Carolina, area while stationed at Fort Bragg and serving as a cook. He pleaded guilty in civilian courts to two other killings and five rapes....
Gray came close to being put to death in 2008, when then-President George W. Bush signed a warrant authorizing his execution. But a federal court gave Gray a last-minute temporary stay.
In 1983, a military appeals court found the death penalty to be unconstitutional because of problems with the armed forces' sentencing guidelines, but President Ronald Reagan soon after reinstated capital punishment in the military. The President has the power to commute a death sentence and no service member can be executed unless the President confirms the death penalty.
While no execution date has yet been set, Army regulations state that a could be set sometime in the next 30 days. Gray's lawyer could not be reached for comment.
December 28, 2016
Dylann Roof tells federal judge he does not plan to present any evidence at penalty phase of his capital trial
As reported in this new AP story, "Dylann Roof told a judge Wednesday he doesn't plan to call any witnesses or present evidence to ask a jury to spare his life for killing nine black worshippers at a Charleston church in a hate crime." Here is more:
But there also is mystery evidence that Roof is working hard to make sure the public never sees in his federal death penalty trial.
Roof, who is acting as his own attorney in the penalty phase to prevent what he thinks would be further embarrassment to himself or his family, again was warned by U.S. Judge Richard Gergel at a hearing Wednesday that being his own lawyer was a bad idea. "That's your decision," Gergel told Roof. "I think that highlights my advice to you that you aren't served by being your own counsel."
Gergel told Roof to talk to his grandfather, who is a lawyer, and other family members one last time. He told Roof he has until the start of the penalty phase Tuesday to change his mind and hire his high-powered, publicly funded defense team back.
The same jurors who convicted Roof earlier this month on 33 counts including hate crimes and obstruction of religion will return next week to decide if he faces life in prison without parole or the death penalty.
Roof spoke for less than 10 minutes of the 35-minute hearing Wednesday. He told Gergel he does plan an opening and closing statement. He then told the judge he objects to prosecutors' plans to present a photograph of evidence in the court's possession. Roof, Gergel and assistant U.S. Attorney Jay Richardson all carefully tiptoed around saying what that evidence was. Gergel did say there was a hearing in which he decided it could be admitted in the penalty phase.
Roof also wanted a jailhouse statement left out of the penalty phase and evidence that involved his mother. No specifics were given. Gergel told Roof to go back to jail and write a motion for him to consider. Roof's ankle chain clanked as he walked back to the defense table in his jail jumpsuit.
Prosecutors also laid out their case. Most of the penalty phase will involve up to 38 people related to the nine people killed and the three people spared when Roof went into Emanuel African Methodist Episcopal Church on June 17, 2015, sat through a 45-minute Bible study in the fellowship hall, then fired 77 shots as many of the worshippers hid under tables.
Gergel, who complained during the guilt phase that prosecutors were repeating themselves at times with witnesses, said he will allow Richardson to call as many witnesses related to the victims as he wants. "The statute provides broad leeway for the victims to be heard, and I plan on honoring that," the judge said....
Gergel spent much of the hearing going over the format of the penalty phase with Roof, warning him several times he was likely doing himself no favors leaving his defense team as just advisers to file briefs. After saying he planned no witnesses, Roof told Gergel he was just answering the same question the judge had asked prosecutors. Gergel said that wasn't necessary. "Don't do them any favors," the judge said. "They aren't going to do you any."
Former Deputy AG Phil Heymann makes full-throated pitch for Justice Department to address Rubashkin case
Last month via this Wall Street Journal commentary, two former Justice Department officials Charles Renfrew and James Reynolds advocated for clemency for Sholom Rubashkin in a piece headlined "Obama Should Pardon This Iowa Kosher-Food Executive: Prosecutors overstepped, interfered with the process of bankruptcy and then solicited false testimony." This week via this Washington Post commentary, LawProf and former Deputy AG Philip Heymann is making the case for Rubashkin while calling out the Justice Department's failure to address these matters. The piece is headlined "107 former Justice officials think this case was handled unjustly. DOJ must act." Here are excerpts:
“You don’t just try to hammer everybody for as long as you can, because you can,” Deputy Attorney General Sally Yates told the New York Times. That is the right attitude for someone tasked with the fair administration of justice. Unfortunately, Yates and Attorney General Loretta E. Lynch have, for the past year, rebuffed efforts by me and many other former senior Justice Department officials to even discuss another prosecution in which justice fell far short: the case of Sholom Rubashkin, a Brooklyn-born rabbi who was sentenced to 27 years for bank fraud.
Rubashkin, a 57-year-old father of 10, has already served seven years for the crime, which ordinarily merits no more than three years. Worse, his sentence was based on perjured testimony and prosecutorial misconduct.
If even a few highly respected prosecutors think a particular case was handled unjustly, resulting in a vastly excessive sentence, the department’s representatives should be prepared at least to discuss the reasons. In Rubashkin’s case, 107 former Justice Department officials, including five former attorneys general, six former deputy attorneys general (myself included), two former FBI directors, 30 former federal judges and other leading jurists, have sought to meet with senior officials of the department we once served. The only response: a form letter from an assistant attorney general stating that no meeting could take place while Rubashkin was also pursuing his case in court.
Meanwhile, Kevin Techau, the U.S. attorney in Iowa (where Rubashkin was prosecuted), has suggested that Rubashkin used his financial resources to buy the support of so many prominent justice officials. Not only has Rubashkin lost everything he owned in this case, his wife and children now depend heavily on the support of their community for their needs. Moreover, all 107 of us are working on this pro bono. Among other things, former deputy attorneys general Larry Thompson, Charles Renfrew and I have traveled to distant meetings and volunteered considerable time to this matter, all on our own nickel.
The facts are clear: Rubashkin was vice president of Agriprocessors, a kosher meatpacking plant based in Postville, Iowa. In May 2008, more than 500 federal immigration agents raided the plant and arrested hundreds of undocumented workers. The raid resulted in the company declaring bankruptcy. Rubashkin was arrested a short time later and charged with bank fraud. And this is where things went terribly wrong. The sentence for bank fraud depends on the amount of the loss to creditors. In this case, the prosecution deliberately increased the amount of the loss — and thus the length of Rubashkin’s sentence....
I am saddened by the unwillingness of the department’s senior leaders to even discuss the injustice that more than 100 of their predecessors and former judges find evident in the Rubashkin case. Experienced former prosecutors and career Justice Department officials view this case as a stain on an institution created to uphold the law. If the department’s leadership refuses to act, I hope President Obama pardons Rubashkin and ends this tragedy. The alternative is a display of either blind self-righteousness or frightened defensiveness that is inconsistent with the Justice Department we all have served and respected.
December 27, 2016
New York Times made yet another editorial pitch for judicial abolition of the death penalty
Today's New York Times has this editorial headlined "The Continuing Collapse of the Death Penalty." Here are excerpts:
Piece by piece, the death penalty continues to fall apart. Last week, the Florida Supreme Court invalidated between 150 and 200 death sentences — nearly half of all those in the state — because they were imposed under a law the United States Supreme Court struck down as unconstitutional in January. The law, which required judges and not juries to make the factual findings necessary to sentence someone to die, violated the Sixth Amendment’s guarantee of a jury trial. “A jury’s mere recommendation is not enough,” Justice Sonia Sotomayor wrote for an 8-to-1 majority.
The Florida decision is the most recent sign, in a year full of them, that the morally abhorrent practice of capital punishment is sliding into the dustbin of American history — where it should have been long ago.
Juries around the country imposed 30 death sentences in 2016, a 40 percent drop from last year and fewer than at any time since the Supreme Court reinstated capital punishment in 1976, according to a report by the Death Penalty Information Center, a research group that opposes capital punishment. Twenty people were executed this year, the lowest number in a quarter-century.
The practice is not only increasingly rare, it is concentrated in an extremely narrow slice of the country. Only five states carried out executions in 2016, the report found, and only five imposed more than one death sentence. California sentenced nine people to die, the most of any state, but no one has been put to death there since 2006.
Public support for the death penalty keeps dropping, too — falling below 50 percent for the first time in more than four decades, according to a Pew Research survey. Support falls even further when respondents are given the alternative of a long prison term like life without parole. Though voters in California, Nebraska and Oklahoma last month preserved the death penalty, the overall trend is toward growing discomfort with state-sanctioned killing.
The total abolition of capital punishment, however, will depend on the Supreme Court’s reading of the Eighth Amendment’s ban on cruel and unusual punishments. So far, only one current member of the court, Justice Stephen Breyer, a regular critic of the death penalty, has expressed openness to examining this question.... Justice Breyer is asking the right questions. It is up to a majority of his colleagues to listen closely and bring the only just result: the permanent abolition of capital punishment in America.
Making the fiscal, anti-government-waste case against excessive incarceration
This commentary authored by a business columnist in Texas makes a "government waste" case against having too many persons in prison. The piece is headlined "Misused prisons waste capital, labor and real estate," and here is how it gets started:
An executive can commit no greater sin in business than to misuse capital, labor or real property, the foundations of wealth. No government program wastes all three more than the prison system, where taxpayer money is spent to lock people up in publicly owned facilities. That's why societies must make sure prisons are used only for those we fear, and not for those with whom we are only angry.
Texas, though, spends too much money imprisoning people who should be rehabilitated by other means, according to Bill Hammond, president and CEO of the Texas Association of Business. The state's chamber of commerce has joined conservative and liberal organizations to create the Smart-on-Crime Coalition to demand better. "Texas has the largest prison population of any state in the country. Nearly 145,000 are incarcerated, and a significant percentage of those are low-level offenders. People who are being held for violating parole or minor drug crimes," Hammond said. "Violent criminals, rapists and sexual offenders do belong in prison. However, there are some people whom we do not think belong in prison because of the cost."
Texas spends about $3 billion a year on prisons. Keeping someone behind bars costs about $50 a day, compared with $3 a day for supervised probation. With Texas lawmakers facing an $8 billion shortfall to maintain the current level of government services in 2018-2019, they need to find savings, and criminal justice is overdue for an overhaul.
Hammond explained at an Austin news conference that it's not just about saving taxpayer money, though. It's about keeping nonviolent offenders employed and providing for their families while making restitution. Diversion programs and alternative sentencing can also force offenders to get treatment for drug addiction and mental health problems that underlie most crimes today. "You are talking about individuals who are working, who are paying taxes, who are paying child support. They should be part of the community and part of the workforce instead of rotting in some prison at a high cost to taxpayers," Hammond said.
December 26, 2016
Reports of now five names atop Prez-Elect Trump's SCOTUS short-list
Ten days ago in this post I reported on reports that federal circuit judges Diane Sykes and William Pryor were among the top contenders to be named by Donald Trump to replace Justice Scalia. Now, via How Appealing and Jan Crawford at this link, the latest buzz about the short list has now also added the names of circuit judges Thomas Hardiman and Steve Colloton, and Michigan Supreme Court Justice Joan Larsen.
I know a little bit about the sentencing "history" of many of these folks, but I am disinclined to talk up (or criticize) this history unless and until we go from short-list speculations to an actual nominee. But if others want to praise or pillory any of these folks.....
A few prior related Trumpian SCOTUS posts:
- Marijuana, Merrick and millenials: why cautious insider Dems lost another outsider/change election
- Which possible SCOTUS pick from the Trump list should sentencing reformers be rooting for?
- Looking for the best "anti-Garland" on Prez-Elect Donald Trump's SCOTUS not-so-short list
- Prez-Elect Trump says he now has a SCOTUS short list among his not-so-short list of 21
- Circuit judges Diane Sykes and William Pryor reportedly on top of Prez-Elect's SCOTUS short-list
The latest data from BJS on parole and probation populations throughout the United States
Not long ago, the Bureau of Justice Statistics released this report, titled "Probation and Parole in the United States, 2015," providing the latest official data on offenders under community supervision throughout the nation. Here are some data highlights from the report:
At yearend 2015, an estimated 4,650,900 adults were under community supervision, down by 62,300 offenders from yearend 2014.
Approximately 1 in 53 adults in the United States was under community supervision at yearend 2015.
The adult probation population declined by 78,700 offenders from yearend 2014 to yearend 2015, falling to 3,789,800.
Movement onto probation decreased from an estimated 2,065,800 entries in 2014 to 1,966,100 in 2015.
Probation exits declined from 2,129,100 in 2014 to 2,043,200 in 2015.
The adult parole population increased by 12,800 offenders from yearend 2014 to yearend 2015, to an estimated 870,500 offenders.
Parole entries increased for the first time in seven years. Parole exits increased for the first time in six years.
Entries to parole increased from an estimated 461,100 in 2014 to 475,200 in 2015.
Exits from parole increased from 450,800 in 2014 to 463,700 in 2015.
"Society must not forget those it incarcerates"
The title of this post is the headline given to this new commentary authored by my colleague Steven Chanenson (who is also co-managing editor of the Federal Sentencing Reporter and a former chair of the Pennsylvania Commission on Sentencing). Here are excerpts:
Prisons are usually hidden and often grim places. Supreme Court Justice William J. Brennan, Jr.'s observation nearly 30 years ago still rings true today: "Prisoners are persons whom most of us would rather not think about. Banished from everyday sight, they exist in a shadow world that only dimly enters our awareness." It should not and need not be that way.
Although there is a vigorous debate over when and to what extent they should be used, prisons are a key public safety tool. Whenever used, incarceration must be effective, safe, and humane. Prisoners are not popular, but how we treat our criminals is, in the words of Winston Churchill, "one of the most unfailing tests of the civilization of any country."
Society has a right and an obligation to protect itself, but it needs to do so while considering both the short- and the long-term consequences for all involved. Most prisoners eventually return to our communities. Last year, almost 20,000 people were released from the Pennsylvania Department of Corrections. They are once again our neighbors across the commonwealth.
Thus, it is in everyone's interest for people who return from prison to come back better equipped to succeed than when they arrived there. If we want to slow the revolving door of incarceration and crime, we must provide meaningful access to treatment, training, and, yes, hope. We must hold the prisons accountable for meeting those goals, including through independent oversight. Both society and the inmates themselves deserve no less.
We must also celebrate the positive work done in prisons. One especially bright ray of hope was on display this month at the State Correctional Institution at Chester. The inmates and staff at the Chester prison partnered with other stakeholders to present a series of TEDx talks focused on the children of incarcerated parents.... Under the able leadership of Corrections Secretary John Wetzel, this was the fourth set of TEDx talks from a Pennsylvania prison. Like the earlier sessions, the discussions in Chester highlighted challenges faced and progress made by the speakers. While talking about the more than 81,000 Pennsylvania children who have a parent in a Pennsylvania prison, they provided a glimpse of some constructive energy that may eventually benefit those of us outside the prison walls....
Particularly during the holiday season, many of us think about the humanity of our fellow men and women. That is a sentiment we should nurture. We need to remember people in prison, how they are treated and what will happen to everyone when they return to our neighborhoods. There was a clear demonstration of hope — for safer communities and our collective humanity — at the State Correctional Institution at Chester. For that, we should all be thankful.
December 25, 2016
Fulsome (and incomplete) criticisms of Prez Obama's fulsome (and incomplete) clemency efforts
Liliana Segura has this lengthy new Intercept commentary headlined "Obama's Clemency Problem – And Ours." I recommend the full piece and here are some excerpts:
President Obama broke his own remarkable clemency record [last week], granting an unprecedented 231 commutations and pardons in a single day. Headlines and tweets broadcast the historic tally; on the White House website, a bar graph tracks Obama’s record to date, which has dramatically outpaced that of his predecessors. With a total of 1,176 recipients, the White House boasted, Obama has granted clemency “more than the last 11 presidents combined.”
The president certainly deserves credit for making clemency a priority before leaving office.... Those who make the cut are, as the White House put it this week, “individuals deserving of a second chance.” Many have been serving long mandatory minimum sentences for nonviolent drug offenses, crimes for which they have shown remorse. Applications list courses completed, prison jobs maintained, records untarnished by disciplinary write-ups. Last spring, Obama highlighted a handful of men and women who “have made the most of their second chances,” describing their ability to leave prison, get a job, and piece their lives back together as “extraordinary.”
With his legacy and the politics of crime in mind, it makes sense that Obama would be cautious with his commutations, while amplifying the success stories. Yet there’s something disingenuous in the now-familiar rhetoric peddled by the White House with every clemency announcement, which repeatedly tells us we are a “nation of second chances.” Even within the narrow scope of Obama’s clemency initiative — and putting aside his treatment of immigrants and whistleblowers — this is wishful thinking at best. As Obama himself has written in his congratulatory letters to clemency recipients, “thousands of individuals have applied for commutation, and only a fraction of these applications are approved.” Before the latest round of pardons and commutations, Obama had rejected nearly 14,000 clemency applications....
[W]hen it comes to the president’s pardon power — the one place where Obama could directly address the problem — there are few signs of a transformation.
Instead, the White House has promoted a story about exceptionalism: The president has proven exceptionally merciful and the clemency recipients are uniquely deserving — even extraordinary. If the former is true, it is only because we have set the bar so low. As for the latter, it is certainly no small thing to survive — even thrive — while serving some of the harshest prison sentences in the world. But praising such men and women as exceptional diminishes the vast human potential that exists behind bars. As one clemency recipient told me last month, recalling an exchange with the former White House pardon attorney, “I have a list of names of people I would like to see come home. But there are even more people who I’ve never met. To give a list of names would exclude too many people.”...
On the same day activists published their letter exhorting Obama to expand his clemency efforts, the American Civil Liberties Union released a report titled “False Hope: How Parole Systems Fail Youth Serving Extreme Sentences.” Documenting how states routinely deny release to those eligible for parole, the ACLU offers numerous profiles of men and women sent to grow up (and in many cases, to die) in prison, whose efforts to prove their value as adults have been repeatedly rebuffed. The stories are all too familiar. They show how poverty, neglect, trauma, and mental illness factor into the lives of young people arrested for violent crimes. They also show how harshly we continue to punish such youth, first with decades in prison, and then with repeated refusals to grant parole, no matter how much they change in the years that follow — or how much evidence shows that older people “age out” of crime. People of color are seen as even less amenable to rehabilitation. Today, despite the wide rejection of the “superpredator” myth, state parole boards show very little mercy to people serving sentences that grew out of such racist hysteria.
As with Obama’s clemency initiative, the problem is largely political: Nobody wants to be the person to free an individual who might go out and commit another crime, even if it has been decades since the original offense — and even if the sentence was disproportionate to begin with. What’s more, the ACLU notes, by focusing on the original crime, “parole board members may never know about the success stories: people convicted of serious crimes who, once released, have become successful community leaders supporting themselves and their families, who grew up and moved beyond the worst thing they ever did.”
One bright spot of Obama’s clemency initiative has been in these very kinds of success stories — publicized in the press and by the White House itself. But in the absence of a deeper rethinking of what we consider a second chance, such anecdotes are no match for generations of fear mongering that has entrenched fear of violent criminals into our very psyche, even at times when crime has hit historic lows....
Just a few days after the ACLU report on parole, the Washington Post unveiled a front-page, four-part investigative series called Second Chance City, which examined a D.C. law called the Youth Rehabilitation Act. Passed in 1985, the law aimed to give judges discretion in handling juvenile cases — including by circumventing mandatory minimums — to allow deserving young people to avoid harsh punishment and, ultimately, expunge their record. The Post series raised alarm, finding dozens of cases where beneficiaries of the law had gone on to commit new, often violent offenses, and describing the crimes in dramatic detail....
Most counterproductive was the framing of the series, placed squarely as a counterpoint to efforts at prison reform on Capitol Hill. “At a time when the Obama administration and Congress are working to ease ‘mandatory minimum’ sentencing guidelines for non-violent offenses, in part because of concerns that such laws have unjustly imprisoned large numbers of African-Americans,” the authors write, “D.C. law enforcement officials are increasingly concerned about the number of repeat violent offenders on the streets.”
The media should certainly scrutinize attempts at reform, pointing out where they fail. But the Post series was a reminder of how quickly we revert back to old narratives about crime, to convince ourselves that more imprisonment will keep us safe. With the real fights over prison reform happening at the state and local level — over things like the Youth Act — any efforts by the president were always going to be limited. But if the pendulum is to swing back toward a more punitive era, as many fear it will under Trump, Obama must do as much as he can now to preserve the legacy he has carved out.
But beyond Obama — and if we are to make a dent in mass incarceration — Americans must also begin to think much bigger than his administration ever did. We should refuse to let the same government that gave us mandatory minimums define what counts as a “second chance.” We must stop letting our leaders — whether the president or a parole board — divest their responsibility to remedy draconian punishments by placing the burden on people who never should have received them in the first place. Ending mass incarceration will require mercy, but fundamentally it is about justice. And the state has not even begun to account for its own mistakes.
I credit Segura for noting and lamenting that what's most remarkable about Prez Obama's clemency efforts are how non-transformative they are. Despite lots of advocacy from lots of advocates for the development of a new structure for clemency decision-making, Prez Obama has barely tweaked the status quo in order to better discover a few thousand prisoners with extreme prison sentences that could be shortened. Prez Obama merits praise and credit for doing something, but that something is largely a last-minute tweak rather than a timeless transformation.
The story of clemency here is a variation on the broader drug war reality throughout the Obama years. As of 2013, then-AG Eric Holder started talking up a new "Smart on Crime" initiative. But, despite this useful talk and some tweaked approaches to federal prosecutions, Prez Obama's Department of Justice for all eight years of his presidency continued to prosecute, on average, 20,000 new federal drug cases each year even though there is still little evidence that severe federal drug sentences for nonviolent drug offenders help reduce drug crime or violent crimes. (Of course, the prior decade saw on average 25,000 federal drug prosecutions, so the Obama DOJ can claim credit for being a lesser evil.) Running these numbers, if Prez Obama commuted 2000 federal drug sentences each and every year he was in the Oval Office, through the work of his DOJ, he still would be responsible for a net addition of 18,000 federal drug sentences each and every year.
Put simply, at the margins, Prez Obama left federal criminal justice matters somewhat better than he found them. But the federal criminal justice system continues to need a wide array of reforms that go, in my mind, far beyond the margins.
Holiday pitch from NY Times editorial board for "Cutting Prison Sentences, and Costs"
With Christmas on a Sunday this year, I will have to guess whether it was a holiday spirit or an end of year spirit that inspired this new New York Times editorial headlined "Cutting Prison Sentences, and Costs." Here are excerpts, with a little commentary to follow:
States across the country have rushed to trim prison costs by backing away from the draconian sentencing policies that drove up the national prison population from 200,000 at the start of the 1970s to a peak of about 1.6 million in 2009. While the total inmate population has declined by 2.9 percent since then, several states that approached reform more aggressively have already reduced their prison populations by far more. California, New Jersey, New York and Rhode Island have done so by more than 20 percent.
These states have shown that it is possible to shorten sentences — or divert offenders to community supervision — without compromising public safety. But even bolder reforms to the sentencing system will be necessary to bring the prison census down to where it should be and reverse the corrosive effects of mass incarceration....
A new report by the Brennan Center for Justice at New York University School of Law provides a blueprint for further reforms. It calls on states to mandate alternative sentences like drug treatment, probation or community service for low-level crimes like drug possession, minor drug trafficking, minor fraud, forgery and theft, which account for 25 percent of the nation’s prison population. Judges would have the flexibility to hand down prison sentences in exceptional circumstances, as in the case of serious, repeat offenders.
The report also recommends a reduction in sentences for major crimes that account for a majority of the prison population — aggravated assault, murder, nonviolent weapons offenses, robbery, serious burglary and serious drug trafficking. (Under such a system, the typical inmate convicted of, say, robbery would serve 3.1 years, as opposed to 4.2.) If these reforms were retroactively applied, the authors estimate, more than 200,000 people serving time for these crimes would be eligible for release.
Under a saner system, the report says, nearly 40 percent of the country’s inmate population could be released from prison without jeopardizing public safety. This would save states $200 billion over the first 10 years — enough to hire 270,000 new police officers, 360,000 probation officers or 327,000 teachers.
The preliminary reforms that many states already have enacted reflect a growing realization that mass incarceration is economically unsustainable and socially disastrous. But to reverse four decades of bad policy, state lawmakers will have to adopt a more decisive and systematic approach to sentencing reform.
Though I am inclined to embrace the essential elements of this editorial, it strikes me as politically and practically tone-deaf in many respects. Politically, the editorial could and should have emphasized the significant number of "red states" that have reduced their prison populations, states like Texas and Georgia and South Carolina and Mississippi. Practically, the editorial could and should have acknowledged that some violent crime (especially murder) and heroin problems have been increasing in recent years, which in turn suggests and demands that states and the federal government focus on fighting crime smarter and not just tougher.