February 20, 2016
"Criminal Justice and (a) Catholic Conscience"
The title of this post is the title of this intriguing new article authored by Leo E. Strine Jr., the current Chief Justice of the Delaware Supreme Court, and now available via SSRN. Here is the abstract:
This article is one person's reflections on how an important influence on his own sense of moral values — Jesus Christ — affects his thinking about his own approach to his role as a public official in a secular society, using the vital topic of criminal justice as a focal point. This article draws several important lessons from Christ's teachings about the concept of the other that are relevant to issues of criminal justice.
Using Catholicism as a framework, this article addresses, among other things, capital punishment and denying the opportunity for redemption; the problem of racial disparities in the criminal justice system; the problem of over-incarceration of poor defendants through the use of money bail; the problem of ever increasing mandatory minimums and a sprawling criminal code; and the need to improve the relationship between and the effectiveness of police in protecting communities of color. Finally, the article reminds us that Christ requires compassion and respect for all, and that any reasoned discussion of criminal justice must accord respect, empathy, and compassion to those victimized by crime, and those who do the tough job of law enforcement and corrections.
February 19, 2016
"Legislating Forgiveness: A Study of Post-Conviction Certificates as Policy to Address the Employment Consequences of a Conviction"
The title of this post is the title of this new paper by Heather Garretson now available via SSRN. Here is the abstract:
Mass incarceration in America is creating an employment paradox that is the result of three facts: an estimated 65 million Americans have a criminal record, a criminal record significantly impairs job opportunities, and a job is a critical component of living a crime-free life. This paradox is perpetuated by thousands of legal and administrative barriers to employment and by employers’ unwillingness to hire someone with a criminal record.
States have recently started addressing the employment paradox with legislation. This legislation authorizes an administrative relief mechanism — often a certificate of some kind — that is intended to lift employment barriers and encourage employers to consider applicants with a criminal record. Such legislation is on the rise: of the ten states that have certificate legislation, eight passed such legislation in the last five years. This passage comes without an understanding of the impact of certificates. The accessibility and relevance of certificates to employment has — until now — been assumed, but not examined.
New York State has the oldest and most robust certificate system, and is a model for much of the recent certificate legislation. This paper contains the first comprehensive research on New York’s certificates. The research asks whether New York’s certificates are accessible and relevant to employment. It combines statutory analysis with qualitative research. It is a study of how certificate legislation is supposed to work — and how it actually does. It examines a statutory scheme that is recently replicated but empirically empty. Through interviews with judges, people with certificates or those eligible but without one, attorneys, current and former probation officials, service providers, and advocates, this paper provides insights into the use of certificates, their challenges, and examines how legislating more of the same can effectively address the employment paradox.
Excited to be at Duke Law School for "The American Death Penalty after Glossip"
I am excited and grateful to have the chance to spend today at Duke Law School for this symposium, "The American Death Penalty After Glossip." Here is the basic description: "The symposium, featuring several of the country's leading experts in the field, will assess the implications of the Supreme Court's 2015 decision in Glossip v. Gross, as well geographic disparities in the application of the death penalty and use of statistics in death penalty litigation." And one can, I am told, watch the event live-streaming via links here, here and here.
Reviewing Justice Scalia's "Mixed Drug War Record"
This new piece by Jacob Sullum at Forbes provides a useful drug-war lens through which to examine one part of Justice Antonin Scalia's Supreme Court jurisprudential legacy. Here is a brief excerpt:
Scalia was of two minds when confronted by the government’s efforts to suppress consumption of arbitrarily proscribed intoxicants. The widely revered and reviled justice, who died on Saturday, was appointed to the Supreme Court four years after Ronald Reagan declared his War on Drugs and Nancy Reagan launched her “Just Say No” campaign. During the next three decades, Scalia alternately cheered and criticized the vain crusade to achieve a “drug-free society.” While he never questioned the goal, he questioned the means used to reach it more often than his critics on the left might think.
For many years enforcement of drug prohibition has been the main factor undermining the Fourth Amendment’s ban on “unreasonable searches and seizures.” Scalia participated in that process, joining his colleagues in upholding invasive tactics such as flying low over private property in search of marijuana plants, searching bus passengers’ bags based on consent that was clearly not freely given, and testing the urine of high school students participating in sports or any other extracurricular activities. But Scalia also resisted drug warriors’ assaults on the Fourth Amendment.
Prior related posts on Justice Scalia and his criminal justice legacy:
- So shocking and so sad: "Antonin Scalia, Supreme Court justice, dies at 79"
- In (sentencing) memorium: why I am already missing Justice Scalia
- Rounding up diverse perspectives on Justice Scalia's diverse criminal justice work and the impact of his loss
Making the case for criminal justice "frugality"
The quoted portion of the title of this post is from the last line of this new USA Today commentary authored by criminologist James Alan Fox and sociologist Richard Moran. The commentary is given the headline "that "Soft on crime turns out to be smart on crime," but I am not sure that really captures what the commentary is trying to say. Here are excerpts so readers can judge for themself:
The shame of wrongful conviction has captured the public's imagination.... Many of the hundreds who have been exonerated and released from prison in the past several decades were prosecuted during a period of high crime rates and unprecedented fear. At a time when a no-nonsense, "lock 'em up" criminal justice policy carried the day, the nation largely turned a blind eye to injustices. We were far more intent on ensuring public safety than protecting the rights of the accused. Meanwhile, a booming economy afforded close to a ten-fold expansion in state and federal prison populations.
Times have changed. Crime rates are at a 50-year low, and, in part due to runaway correctional expenditures, a majority of states are struggling to balance their budgets. This dire financial situation has forced politicians to seek out cost-saving measures, and the low crime rate has allowed them to do so without much public opposition.
The focus on innocence and exoneration actually reflects a much broader rethinking of our criminal justice policies in the context of low crime and limited resources. When crime rates were rising, the cops were handed a mandate to do whatever it took to arrest criminals. Now the police are being held accountable like never before. We are questioning their use of deadly force, and equipping them with body cameras to monitor their every move.
Similarly, the 1990s panic over youth and gang violence had us characterizing juvenile offenders as "superpredators" who were beyond redemption. The popular slogan "adult time for adult crime" echoed a "get-tough" approach for punishing kids. Recently, however, the U.S. Supreme Court abolished mandatory life sentences for minors. And policy makers have recommitted to the original philosophy of juvenile justice, prioritizing the needs of young offenders rather than what punishment is deserved.
The 1990s also saw the rapid spread of a penal policy patterned after a well-known baseball refrain — "three strikes and you're out." This metaphorical approach to sentencing felons helped nearly bankrupt many states, especially California where "three strikes" was most enthusiastically adopted.
Thousands upon thousands of Americans were taken prisoner in the "War on Drugs" declared in the early 1970s when crime rates soared. Having surrendered this misguided campaign, the nation is now looking more toward treatment for addicts than punishment, and releasing nonviolent drug offenders from prison.
Many, if not all, of the recent shifts in philosophy reflect the fact that we simply can't afford to keep millions of Americans locked behind bars. Mass incarceration may have contributed marginally to bringing down the crime rate, but it was hardly a cost-effective strategy. Rehabilitation, despite its limitations, is significantly cheaper and far more attractive to cost-conscious lawmakers and their constituents.
For several decades, ever since Richard Nixon won the White House on a "law and order" platform, the predominant response to crime was decidedly punitive. Today's proposed criminal justice reforms — from deincarceration to exoneration — would have been condemned as soft on crime. Whether they will prove to be smart on crime, as reformers have promised, one thing is for sure: They are frugal, and frugality is definitely in fashion these days.
February 18, 2016
"U.S. Prison Population Trends 1999-2014: Broad Variation Among States in Recent Years"
The title of this post is the title of this notable short "fact sheet" from The Sentencing Project. Here is the text that goes with the graphical state-by-state data in the document
The number of people in prison in the United States has stabilized in recent years, but incarceration trends among the states have varied significantly. While 39 states have experienced a decline since reaching their peak prison populations within the past 15 years, in most states this reduction has been relatively modest. In addition, 11 states have had continuing rises in imprisonment.
Twelve states have produced double-digit declines within this period. Four states have reduced their prison populations by over 20%: New Jersey (31% since 1999), New York (28% since 1999), Rhode Island (25% since 2008), and California (22% since 2006, though partly offset by increasing jail use). Southern states including Mississippi and South Carolina, which have historically had high rates of incarceration, have also significantly downsized their prison populations. These reductions have come about through a mix of changes in policy and practice designed to reduce admissions to prison and lengths of stay. Moreover, the states with the most substantial reductions have had no adverse effect on public safety.
The overall pace of change, though, is quite modest given the scale of incarceration. The total U.S. prison population declined by 2.9% since its peak in 2009. Of those states with declining prison populations, 20 have had less than a 5% decline since their peak years. The reduction in the federal prison population has been of this magnitude as well, 2.9% since 2011. And of the states with rising prison populations, four have experienced double-digit increases in the last five years, led by Nebraska (22%) and Arkansas (18%). While sharing in the national crime drop, these states have resisted the trend toward decarceration.
Just as mass incarceration has developed primarily as a result of changes in policy, not crime rates, so too have declines reflected changes in both policy and practice. These have included such measures as drug policy sentencing reforms, reduced admissions of technical parole violators to prison, and diversion options for persons convicted of lower-level property and drug crimes.
Compassionate release consensus and dissensus at US Sentencing Commission public hearing
As detailed in this press report, headlined "Prison-Release Program Debated in Hearing," there were both common and diverse perspectives at the US Sentencing Commission hearing yesterday concerning the federal system's approach to compassionate release:
The compassionate release system for federal prisons is "broken," a series of government witnesses, advocates and stakeholders told the U.S. Sentencing Commission at a public hearing Wednesday. But while the panels of witnesses generally agreed the program is in need of a fix, they proposed starkly different solutions and laid the blame at the feet of a number of different organizations and agencies.
The compassionate release program is meant to release elderly inmates, those with terminal illnesses and others who meet certain conditions, though as the witnesses at Wednesday's hearing said, the program does not necessarily cover all of the inmates in federal prison it is meant to.
Wednesday's public hearing in a small conference room in the Thurgood Marshall Federal Judiciary Building in downtown Washington, D.C., was meant to evaluate a proposed set of changes to the compassionate release program, including lowering the age at which an inmate can be considered for release, reducing the amount of their prison term they must serve before qualifying for release, and adding more circumstances that would allow an inmate to go free early.
The current program allows the director of the Bureau of Prisons (BOP) to motion for the early release of inmates deemed not a danger to their communities who are least 70 years old and have served at least 30 years of their sentence, or those who have "extraordinary and compelling reasons." Under the current rule "extraordinary and compelling reasons" are limited to debilitating or terminal physical or mental illnesses or a death in the inmate's family that would leave a minor without care.
The proposed amendment to the program expands these circumstances further and would allow the BOP director to motion for the release of a prisoner who is 65 or older and has served at least 10 years or 75 percent of their sentence, regardless of their medical condition.
The 10 year requirement drew some criticism from the witnesses, especially Michael Horowitz, inspector general for the U.S. Department of Justice, who suggested the 10-year requirement might have unintended consequences. Horowitz estimated the requirement that inmates serve at least 10 years of their sentence before being considered for compassionate release cuts out half of the inmates who could benefit from the program. This includes elderly inmates sentenced to relatively short times in prison, who are arguably the safest prisoners to release into the community, Horowitz said.
The commission seemed to agree with Horowitz and his suggestion to simply eliminate the 10-year requirement and keep the guidelines requiring inmates serve at least 75 percent of their given sentences. "Where's the science behind the 10 years?" Judge Charles Breyer, vice chair of the commission, asked. "I don't see it, I'm unaware of it, but is there something that the Justice Department or the Bureau of Prisons have figured out that 10 years? Because it looks to me that all they're saying is we want to make sure that somebody receives an adequate punishment."
The involvement of the BOP director was another point of contention at Wednesday's hearing, as witnesses offered competing views of who should be in the driver's seat of the compassionate release program. Jonathan Wroblewski, principal deputy assistant attorney general for the Justice Department, told the six-member sentencing commission that the BOP is in charge of the compassionate release program, and suggested the commission and courts take on an advisory role....
Margaret Love, a non-voting member of the Practitioners Advisory Group, stood in stark contrast to Wroblewski's executive-centric policy proposal, arguing that Congress intended the U.S. Sentencing Commission to lead the program, with the courts taking a major role and the BOP being relegated to the "gate-keeping" role of applying the guidelines to specific cases.... She urged the commission to develop a clear policy to lead the BOP and suggested an addition to the proposed amendment that would require the BOP director to make a motion for release of an inmate under the compassionate release program if they meet all qualifications, instead of the voluntary system in place now.
This agenda from the USSC hearing yesterday now has links to all the witnesses' written testimony.
February 17, 2016
"Of Systems and Persons: The Ability and Responsibility of Corporate Law to Improve Criminal Punishment"
The title of this post is the title of this interesting-looking new paper available via SSRN authored by W. Robert Thomas. Here is the abstract:
The federal government has used criminal fines to punish corporations for as long as it has been punishing corporations. Yet to this day, with more than a century in which to get the punishment right, corporate-criminal fines fail to satisfy virtually any standard justification that underlies criminal punishment.
Attempts to address the failure of corporate-criminal fines founder on two shoals. First, there is a deep and abiding ambiguity about what it means to designate corporate fines as a failed punishment. Second, there is a tendency to see the failure of punishment as a problem for criminal law to solve, and in doing so to treat corporate law as a fixed, immutable feature of the legal background. This particularly is a profound mistake: the failure of corporate-criminal fines is as much a corporate-law problem as it is a criminal-law problem.
Corporate punishment stands at the vanguard of the conceptual and regulatory interplay between corporate and criminal law. At the heart of this conflict is an interaction between drastically different regulatory functions that operate on the basis of conflicting conceptions of the corporation: corporations as persons for criminal law, and corporations as systems for corporate law. While pluralism about the nature of corporation works well when cabined to specific legal do-mains, corporate-criminal punishment forces these domains, and their competing conception of the corporation, to reconcile or give way.
This Article explores the intimate connections between corporate law and criminal punishment — specifically, how corporate law creates the conditions for, makes necessary, and yet at the same time undermines criminal law’s efforts to punish corporations. Appreciating these interconnections requires understanding not just the conceptual frames implicit to each area of law, but also the historical contingency of associating certain conceptions of the corporation with particular legal domains. To be sure, this project is reform-minded: I consider what it would mean to improve criminal fines through corporate law reforms designed to redistribute the harms attendant to criminal fines in a manner that better aligns the punishment with standard penological aims. That said, the ambition first and foremost is to reveal a blind spot in current discussions of corporate-criminal punishment by drawing attention to the conceptual intricacies that attend a practice — corporate-criminal punishment — that stitches together diametrically opposed conceptions of the corporation.
New SCOTUS short-list name to excite sentencing fans: Judge Ketanji Brown Jackson
I was pleased and excited to see this new post by Tom Goldstein at SCOTUSblog titled "Continued thoughts on the next nominee (and impressions of Judge Ketanji Brown Jackson)." I recommend the full lengthy post for anyone following closely the politics and prcticalities of replacing Justice Scalia, and here is an excerpt from the tail end:
[T]he president will be inclined to appoint a highly qualified black woman to the Court who has been recently confirmed. In a previous post, I said that the most likely candidate is Attorney General Loretta Lynch. I continue to think her credentials are strong. But it is worth noting that her confirmation vote in the Senate was close (because of Republican votes), so the administration could not make the point that she had been uniformly supported in the past....
There is another potential sticking point — one on which people directly involved in Democratic Supreme Court nominations are torn. The confirmation process would give Republicans the excuse to demand a wide array of documents that are related — maybe tangentially — to Lynch’s service as attorney general. These could include documents relating to decisions to initiate investigations and prosecutions. Benghazi is one example among many. In the view of some, that is a deal-breaker for the nomination. The administration won’t want to expose itself to those demands. Others think it could be worked out, as it was with respect to documents from Elena Kagan’s time as Solicitor General....
If not Lynch, who? There does not seem to be any obvious candidate in the federal courts of appeals. But there is a district judge.
Ketanji Brown Jackson is a judge on the U.S. District Court for the District of Columbia. She was confirmed by without any Republican opposition in the Senate not once, but twice. She was confirmed to her current position in 2013 by unanimous consent — that is, without any stated opposition. She was also previously confirmed unanimously to a seat on the U.S. Sentencing Commission (where she became vice chair).
She is a young — but not too young (forty-five) — black woman. Her credentials are impeccable. She was a magna cum laude graduate of Harvard College and cum laude graduate of Harvard Law School. She clerked on the Supreme Court (for Justice Stephen Breyer) and had two other clerkships as well. As a lawyer before joining the Sentencing Commission, she had various jobs, including as a public defender.
Her family is impressive. She is married to a surgeon and has two young daughters. Her father is a retired lawyer and her mother a retired school principal. Her brother was a police officer (in the unit that was the basis for the television show The Wire) and is now a law student, and she is related by marriage to Congressman (and Speaker of the House) Paul Ryan.
Judge Brown Jackson’s credentials would be even stronger if she were on the court of appeals rather than the district court and if she had been a judge for longer than three years. One person whom I know who has been deeply and directly involved in prior confirmations is confident the president would not nominate someone from the district court. I disagree because these are special circumstances. It is easy to see a political dynamic in which candidate Hillary Clinton talks eagerly and often about Judge Brown Jackson in the run-up to the 2016 election, to great effect.
Even if I was not familiar with Judge Brown Jackson, the fact she had been a federal public defender would appeal greatly to me. But I am familiar with Judge Brown Jackson because I had a few lovely opportunities to interact with her professionally when she was a member of the US Sentencing Commission and I had dinner with her and a few others once during a US Sentencing Commission conference.
On the merits, I think Judge Brown Jackson’s status as a district judge should actually be a plus on a Supreme Court that has often (and rightly) been accused of not being attentive to or even seemingly aware of the practical impact of its rulings for trial courts. I was not previously aware of Judge Brown Jackson's connection to House Speaker Paul Ryan, but A bit of research revealed these notable comments from Speaker Ryan at her confirmation hearing to become a US District Judge:
I appreciate the opportunity to share my favorable recommendation for Ketanji Brown Jackson. I know she is clearly qualified. But it bears repeating just how qualified she is....
Now, our politics may differ, but my praise for Ketanji's intellect, for her character, for her integrity, it is unequivocal. She is an amazing person, and I favorably recommend your consideration.
At the same hearing, notably, Senator Charles Grassley (who is now the all-important Chair of the Judiciary Committee) followed up by saying "Ms. Jackson, I thought after Ryan got done speaking about you we could just vote you out right away." These comments by leading Republicans would seem to go a very long way to enabling Prez Obama to make much of the fact that leading Republicans have already testified strongly about to her "intellect, ... her character, ... her integrity."
Prior related posts on new SCOTUS nominee possibilities:
- Off the cuff (bad?) SCOTUS advice for Prez Obama: nominate current AG Loretta Lynch tomorrow
- Prognosticating SCOTUS possibilities in light of existing politics
- Vetting Judge Jane Kelly: should sentencing fans be rooting for her to be Prez Obama's SCOTUS nominee?
Is federal bail reform key to making a serious dent in mass incarceration?
The question in the title of this post is prompted by this notable This Week commentary by Ryan Cooper, headlined "President Bernie Sanders couldn't stop mass incarceration by himself. But this one reform would be a very good start." Here are excerpts (with a few links from the original):
[Many have] badly understated the extent to which federal policy affects incarceration outside of federal prisons — particularly jails. It's a great opportunity for Sanders to clarify his message [about reducing incarceration] and seize on bail reform — a vastly overlooked part of the mass incarceration problem. While it probably wouldn't move the U.S. from the top spot by itself, bail reform could make an enormous difference....
First, federal crime policy exerts a strong gravitational pull on state behavior. Federal sentencing guidelines heavily influenced the state versions; state-level lawyers, judges, and policymakers tend to look to the higher-status federal system for cues and ideas, and there is much back-and-forth staff movement. Hence, if the federal criminal justice system were to make a sharp turn against harsh punishments, it's virtually certain that would percolate through some if not most of the state systems and thus reduce the prison population over time. Federal leadership matters here.
This effect also holds for bail policy, which is the primary determinant of the size of the jail population. As I covered extensively last year, about 62 percent of the people in jail are legally innocent. A major reason why is the Bail Reform Act of 1984, which made it dramatically easier to keep people locked up before federal trials; most of the states followed suit. Today, roughly two-thirds of the people in jail are there either because they are too poor to make bail, or because they've just been arrested and will make bail in the next few days. Over the last 15 years, fully 99 percent of the growth in the jail population is due to increased incarceration of the legally innocent.
This is a human rights atrocity for many reasons, but perhaps the biggest one is that the first 48 hours or so in jail is extremely traumatic for people with no experience in the prison system. It's why the suicide rate in jails is 2.5 times greater than in actual prisons — witness Sandra Bland, an ordinary middle-class person who apparently committed suicide very soon after being thrown in jail.
Now, it would be unconstitutional for Congress to simply force states to change the way they do bail. But there are four less direct avenues to pursue: First, pursue reform for federal prisoners, to take advantage of the percolation effect mentioned above. Second, put conditions on the many grants the feds dole out for the states' criminal justice systems, requiring bail reform as a condition of getting the money. Third, pass a law declaring current use of money bail a violation of the 14th Amendment's due process protection, which Congress has power to protect. Fourth, there is a very strong case that current bail policy is a violation of the 8th Amendment, so the Department of Justice could pursue a lawsuit and attempt to get a Supreme Court ruling allowing the feds to step in. The last two of these are a bit of a long shot, but taken together this would be a powerful package.
But what would bail reform look like? There are two basic principles: First, work to make sure arrestees are processed as fast as possible — ideally within 24 hours, as many jurisdictions are moving towards. Second, very sharply reduce the use of money bail. If used, it should never be beyond a person's ability to pay. No person should ever rot in jail waiting for a trial because he can't scrounge up the cash to make bail — poverty should not be a crime. Besides, research from the Vera Institute of Justice shows that bail is largely worthless for making sure that accused criminals show up to trial. In most cases, it simply isn't needed — basic pretrial supervision works much better.
There is tremendous churn in and out of the jail system — 11.4 million people were admitted in 2014. Bail reform would thus be more about diverting the flow of prisoners rather than releasing lots of long-term ones. A new federal law mandating speedy processing of arrestees, and sharply restricting the use of money-bail, would erode the jail population from two directions at once. It could be combined with incentives to use alternatives to arrest, like citation-and-release or pre-booking diversion, to further slow the rate of jail entry. At a very rough guess, such a reform done well could knock about a third — perhaps 200,000 people — off the jail population.
At any rate, even very aggressive bail reform wouldn't get us to the Chinese figure of 1.66 million prisoners quoted above, and it would require congressional action. But bail reform would be a gigantic step in the right direction. When it comes to fighting mass incarceration, it's the easiest and most obvious first step.
February 16, 2016
"Fifty Shades of Gray: Sentencing Trends in Major White-Collar Cases"
The title of this post is the title of this new Note appearing in the February 2016 issue of the Yale Law Journal authored by Jillian Hewitt and now available via SSRN. Here is the abstract:
Between 1987 and 2005, federal judges sentenced defendants pursuant to binding Sentencing Guidelines that severely curtailed their discretion. In United States v. Booker, the Supreme Court held the mandatory Guidelines sentencing scheme unconstitutional and rendered the Guidelines advisory. This Note offers a picture of white-collar sentencing in “shades of gray.” It conducts an empirical analysis of sentencing decisions after Booker to assess the consequences of the return to judicial discretion.
In particular, the Note examines major white-collar cases in the Southern District of New York, where many such cases of national and international significance are prosecuted. The Guidelines instruct judges in white-collar cases to calculate the amount of economic loss attributable to the defendant and apply a sentencing enhancement — often a sizable one — on the basis of that loss. The findings reveal that a significant majority of defendants in these cases receive sentences of imprisonment shorter than those recommended by the Guidelines. Moreover, when judges impose sentences below the Guidelines range, the resulting sentences are often dramatically shorter than those produced under the Guidelines.
Based on these findings, this Note argues that the U.S. Sentencing Commission should revise its approach to white-collar cases in three ways. The Commission should amend the Guidelines to reduce the severity of the economic loss table; calculate economic “loss” differently; and add additional, though less severe, enhancements to punish pecuniary gain and intended loss. Absent such changes, judges will — and should — continue imposing sentences far below the Guidelines range. These proposed changes better capture the seriousness of the offense and the culpability of the offender, even if they do not resolve the fundamental tension between individualized sentencing and the rigid quantification that characterizes the Guidelines system.
Rounding up diverse perspectives on Justice Scalia's diverse criminal justice work and the impact of his loss
Though there is already far too much old and new media discussion of Justice Scalia's legacy and the debate over his replacement to be consumed, I am going to try to make an effort to note and link here SCOTUS/Scalia stories with a particular focus on criminal justice issues. Here are the headline from some of what I have seen around the web recently that seem worth a peek:
Vetting Judge Jane Kelly: should sentencing fans be rooting for her to be Prez Obama's SCOTUS nominee?
Because I always look at big legal issues through the lens of sentencing, and especially because the last four US Supreme Court appointments have been filled by persons who previously worked as a prosecutor and/or the US Department of Justice, I keep being drawn to one name on all the SCOTUS short-list stories because of her extended service as a federal public defender: Jane Louise Kelly.
I am pretty sure I have never met Judge Kelly, and I am very sure that I have no firm basis to predict what kind of Justice she would likely develop into over the course of he service on the Court. But because professional choices and experiences always shape jurisprudential perspectives, and especially because Judge Kelly's two decades as a public defender would surely gave her an especially keen understanding of the doctrines and practicalities of federal criminal law, I keep thinking she should be a top choice for sentencing fans.
There also would seem to be possible political advantages to Prez Obama nominating Judge Kelly. Most notably, she was unanimously (and quickly) confirmed by the Senate three years ago wth the backing of Senate Judicary Chair Charles Grassley. (This Blog of Legal Times article provides the back-story on how that became a reality.) Her Indiana birthplace and Iowa-based career would help diversify the Supreme Court geographically (and would enable Prez Obama to make much of an interest in ensuring "mainstream midwestern values" are represented on the Court). In addition, the only apparently newsworthy aspect of her personal background that I could find, apart from her educational and professional history, was that she was violently attacked while jogging in Cedar Rapids back in 2004. Her status as a crime victim could perhaps blunt any GOP criticisms that as a Justice she might be problematically biased toward criminals rather than victims.
This all said, because I have no direct experience with Judge Kelly and have not yet even taken time to try to review all of her recent work on the Eighth Circuit, perhaps I am much too quick to assume that her profesional background should make her a top choice for sentencing fans. Thus the title of this post: I would be eager and grateful to hear from readers (either via the comments or some other means) with any informed assessments of Judge Kelly. I assume there are dozens, if not hundreds, of Iowa lawyers who have regularly encountered Judge Kelly professionally, and I am hopeful some of this number will chime in to provide a fuller picture of this notable short-lister.
Prior related posts on new SCOTUS nominee possibilities:
- Off the cuff (bad?) SCOTUS advice for Prez Obama: nominate current AG Loretta Lynch tomorrow
- Prognosticating SCOTUS possibilities in light of existing politics
"Texas prisons are filling up with the old and the ill — at enormous expense"
The title of this post is the sub-headline of this lengthy new Texas Observer article. Here are excerpts:
Benito Alonzo is a short, 140-pound 80-year-old. His quiet-spoken manner, drooping jowls and gray hair, trimmed in a buzz, give him the appearance of a benevolent grandfather, and indeed, he is a grandfather. In thick-framed black eyeglasses, he bears a resemblance to the defanged and aging Henry Kissinger. But Alonzo is neither a celebrity nor a statesman. He’s a convict who has lately grown infirm. He says he’s been diagnosed with prostate cancer and he’s afflicted with Hepatitis C. For several years he’s been prescribed a drug called Lactulose, which Dr. Owen Murray, chief of medical affairs for the Texas penal system, says “we use for people whose livers are at the end of their lives.”...
Alonzo has been waiting since at least March for the start of a 12-week course of a new liver drug that might keep him alive for years to come. He’s been told that the treatment will cost $94,500. Were he back on the streets, Medicare would pick up the tab. But because federal courts have ruled that states must guarantee the safety and health of their inmates, Texas will have to pay. Alonzo frets that because of the expense, prison bureaucrats will stall the treatment until it’s too late.
The state of Texas operates 109 prisons holding about 148,000 inmates. Some 27,000 of them are, like Alonzo, over the age of 50. They account for about 18 percent of the prison population, and are the fastest-growing demographic group among prisoners. By most estimates, they are also the most expensive to keep under lock and key. According to TDCJ spokesman Robert Hurst, the average cost of housing Texas inmates is about $20,000 a year, but medical and end-of-life expenses hike that figure to some $30,000 for elderly inmates. In other jurisdictions, the cost is even higher. A 2012 report from the ACLU calculates the average national expense for keeping a prisoner at $34,000 per year — and twice that much, $68,000, for inmates older than 50.
Both demographic factors and get-tough sentencing have transformed what were once mere penal institutions into hospitals, assisted living centers and nursing homes, too. The University of Texas Medical Branch operates a freestanding hospital in Galveston for TDCJ, which also contracts with UTMB and the Texas Tech medical school to send prisoners to 146 community hospitals. Texas prisons now boast of “respiratory isolation rooms,” “brace and limb services” and hospice facilities in which 90 Texas inmates were eased into eternity last year. More than 300 inmates in Texas prisons use wheelchairs, Dr. Murray says....
Alonzo’s life has been one of alternating spans of heroin addiction and confinement. He served three separate stints in prison — for theft, burglary and heroin possession — from 1958 to 1974. After his parole in 1974, allegedly under the influence of two of his brothers, Pedro and Adolfo, he delivered a pair of pistols to a warden’s trustee who then smuggled them into Huntsville’s Walls Unit. San Antonio gangster Fred Carrasco used those guns in an 11-day hostage-taking and stand-off that culminated in a shootout. Alonzo is serving a life sentence for his connection to the incident....
The state of Texas does have a process for releasing old and infirm prisoners on humanitarian parole, but the record is underwhelming. A bureaucracy dating to 1987, the Texas Correctional office on offenders with Medical or Mental Impairments, usually named by the clunky acronym TCOOMMI, was assigned to process medically recommended intensive supervision, or MRIS, paroles. MRIS is a way to move inmates rendered harmless by their frailty or age back into the civilian world.
TCOOMMI reports to the Texas Board of Pardons and Paroles on an inmate’s health status, leaving the final parole decision to the board. In a February 2015 biennial report, TCOOMMI reported that of the 1,133 MRIS applications that had been submitted in fiscal year 2014, 318 had been found sufficiently meritorious for presentation to the parole board. Of those, the board had granted 67 releases — a mere 6 percent approval rate.
In a 2012 statement, TDCJ admitted that “the Parole Board’s approval rates of MRIS cases remain low.” But the board’s performance hasn’t shown signs of improvement. In the 2015 fiscal year, 445 prisoners older than 60 filed for medical paroles — but only 24 paroles were granted, all of them on the basis of infirmity, none on the basis of age. The roadblock is a provision of the law allowing the parole board to conclude that a prisoner constitutes a threat despite what doctors say....
Benito Alonzo would today have a hard time exacting any revenge or harming anybody, and whether he lives or dies is of little concern except to a coterie of kin and perhaps in the circles of the Mexican Mafia. If he dies in prison, as we must currently expect, though he’d prefer to be interred in San Antonio, his corpse will be eligible for a casket and a grave at public expense, in the prison cemetery, of course.
February 15, 2016
Might Virginia go back to the electric chair to try to complete an execution scheduled for next month?
The question in the title of this post is prompted by this recent Washington Post article headlined "Lacking lethal injection drugs, Va. might turn to the electric chair." Here is how the article begins:
Virginia lawmakers are mulling a bill that would allow state officials to use the electric chair to execute those on death row when lethal-injection drugs are not available — a measure that might be needed to put an inmate to death next month.
The legislation passed the Virginia House of Delegates last week, though it still must clear the Senate, which it has failed to do in the past. But this year might be different because an inmate is scheduled for execution in March, and prison officials say they do not have the sedatives they need to do it. “It’s our job to help carry out what they have decided in a court of law,” said Del. Jackson H. Miller (R-Manassas), who introduced the bill.
The proposal again thrusts Virginia to the center of a national debate on how the justice system should deal with those it has determined deserve to die. Historically, states turned away from the electric chair, believing lethal injection to be quicker, less painful and less likely to be declared cruel and unusual punishment, said Robert Dunham, executive director of the Death Penalty Information Center. Now — with the needed drugs in short supply — they are being forced to look at alternatives, sometimes turning to practices that have fallen out of favor, Dunham said.
“The irony is they’re looking for alternatives to lethal injection because lethal injection may be found to be cruel and unusual, or because lethal injection drugs are becoming harder for states to lay their hands on,” Dunham said. “It’s pretty clear that states that adopt electrocution as the method of execution are going to face very serious constitutional challenges.”
Virginia is one of eight states that already allow electrocution as a method of execution, letting inmates choose between it and lethal injection. The next inmate slated to die, Ricky Gray, has not yet picked a method. What will happen at his March 16 execution — or if it will go on as planned — remains unclear.
Gray, 38, was convicted in 2006 of brutally killing a Richmond musician, his wife, and their 9- and 4-year-old daughters. He picked the family because he spotted their door open and decided to rob them, court documents say. The documents say Gray also confessed to killing his wife, Treva Terrell Gray, and three members of another Richmond family. In urging his colleagues to pass the bill, Miller gave a lengthy and graphic description of Gray’s crimes and asked legislators to help the victims’ families “get the justice that they deserve and that our justice system has determined they deserve.”
“This isn’t expanding the death penalty, but the case I just told you about is exactly why we have this punishment on our books,” he said.
Marna Squires, the mother of Gray’s wife, said she does not care what method is used. “I’d love to be there and lay him down on the gurney and put the needle in him if they’d let me,” Squires said.
Executions by electrocution are far less common than those by lethal injection, though they are not unheard of. According to the Death Penalty Information Center, 158 people have been executed by electrocution since 1976, compared with 1,252 by lethal injection. Alabama, Arkansas, Florida, Kentucky, Oklahoma, South Carolina, Tennessee and Virginia permit the practice in theory, according to data from the center, though each state has different rules. The last inmate to pick electrocution in Virginia was Robert Gleason Jr., who was given a life sentence for killing someone to cover up his involvement in a drug gang, then death for killing two fellow inmates behind bars. He was executed in 2013.
Courts in Georgia and Nebraska have ruled that electrocution violates their state constitutional protections against cruel and unusual punishment, according to the center.
US Sentencing Commission to conduct hearing on compassionate release and conditions of supervision
As reported in this official notice, the US Sentencing Commission is scheduled to conduct a public hearing the morning of Wednesday, February 17, 2016. This hearing agenda suggests that the main focus of the hearing is so-called "Compassionate Release" and that all of the leading and most important voices in this space will be speaking to the USSC.
Some prior related posts:
- Effective commentary urges greater us of "compassionate release"
- New report assails (lack of) compassionate release in federal system
- NY Times editorial laments lack of compassionate release
February 14, 2016
Prognosticating SCOTUS possibilities in light of existing politics
One of many reasons last night I first thought of Loretta Lynch as a SCOTUS nominee was because I think that, for both legacy and political reasons, Prez Obama may be very interested in nominating someone who is (1) an African American, and/or (2) a woman, and/or (3) someone who has been already confirmed to a significant federal position by the current GOP-controlled Senate. The only person who came to mine filling all three of these criteria is current Attorney General Loretta Lynch.
In this lengthy post at SCOTUSblog, Tom Goldstein talks through his thinking on this front and seems to share my view of the key factors political and practical likely to motivate Prez Obama here. But, seeing some practical problems with nominating AG Lynch, Tom concludes his post stating that "at this point I think that Judge Paul Watford is the most likely candidate." Especially because I recall Tom being spot-on in a lot of prior SCOTUS nominee predictions in recent years, I am now inclined to view Judge Watford as something of a front-runner now.
Of course, there are any number of other possibilities, and here are some helpful "short-list" articles from various thoughtful court-watchers worth checking out: from Josh Gerstein at Politico; from Dahlia Lithwick at Slate; from Dylann Mathews at Vox. After reviewing these lists, I see two additional candidates who (like Judge Watford) satisfy two of the three criteria I have listed at the outset of this post and who, in my view, have some other possible political/diversity benefits. Here are their names and backgrounds via the Vox piece:
Jane Kelly — US Court of Appeals for the Eighth Circuit
Any nominee is going to have to go through the Judiciary Committee, chaired by Sen. Chuck Grassley (R-IA). And no nominee is going to make Grassley happier than Jane Kelly, a career public defender from Iowa whose nomination for the federal bench Grassley championed, leading to a unanimous confirmation in 2013. She was also, coincidentally, a Harvard Law School classmate of Barack Obama's, graduating with him in 1991.
Her record as a defense attorney might spark some objections from law-and-order-oriented conservatives in the Senate, but it's hard to argue she lacks empathy for victims of crime. In 2004, while jogging, she was tackled and beaten by a male stranger, requiring months of recovery before returning to her practice.
None of this guarantees she will be confirmed. But if Kelly is not confirmable, it's hard to imagine anyone is.
Jacqueline Nguyen — US Court of Appeals for the Ninth Circuit
By contrast, Watford's colleague Nguyen — who was born in Vietnam and would be the first Asian-American justice — was confirmed the same month as him in 2012, by a whopping 91-to-3 margin. She's also a UCLA Law alum, and is only 50, meaning she'd have a nice long tenure. She got some criticism from liberals for filing a lone dissent defending a police officer who tased an innocent bystander, but if anything that should help her win over Republican votes. She also is far better versed in hovercraft moose-hunting jurisprudence than any other SCOTUS contender.
But Nguyen is also, for better or worse, a bit of a blank slate without that many major decisions on her record (with a possible exception being a First Amendment case where she and two Republican colleagues found a school uniform policy unconstitutional). That makes it hard to judge what kind of justice she'd be, which could make both Obama and the Senate more hesitant.
The fact that both of these women were confirmed without any significant opposition from the Senate makes them both, I think, look like more moderate picks than folks likely Lynch and Watford. In addition, for practical reasons, I think it is very significant that Judge Kelly is from Iowa and has Senator Grassley as a backer. For political reasons, the fact that Judge Nguyen is an immigrant (and did not go to any Ivy League schools) makes her a uniquely interesting possible nominee.
Prior related post:
UPDATE: I am intrigued to now see Tom Goldstein has this new post up at SCOTUSblog on this front which get tarted this way:
This post substantially revises and supersedes my earlier one on how the political parties will likely approach the Scalia vacancy, in which I had concluded that Ninth Circuit Judge Paul Watford was the most likely nominee. On reflection, I think that Attorney General Loretta Lynch is more likely. I also think that the Republicans will eventually permit the nomination to proceed on the merits and reject it on party lines.
In (sentencing) memorium: why I am already missing Justice Scalia
Justice Antonin Scalia was nominated to be a Justice just a few months after I graduated from high school, and I have never really known a Supreme Court without his voice and views being integral to the Court's work. And Justice Scalia earned a unique and enduring place in my professional heart with his work for the Court in Blakely v. Washington. In this 2004 Slate commentary stressing how consequential the ruling was for sentencing law and policy, I called Justice Scalia's opinion in Blakely "majestic and mysterious, historic and hysterical, stunning and stupefying," and "a great read [that] often seems more intent on teasing the dissenters than on clearly defining defendants' Sixth Amendment rights."
I could (and likely will in some future law review pages) wax even more potetic about the Blakely opinion and about how his work in the Apprendi and Booker lines of cases are likely to long persist as the most critical and consequential constitutional rulings in the modern history of sentencing jurisprudence. But in this post, I am eager to take a few moments to note and link some highlights in the remarkable corpus of significant sentencing opinions authored by Justice Scalia during his three decades on the high court:
Mistretta v. United States, 488 U.S. 361 (1989) (dissenting)
Stanford v. Kentucky, 492 U.S. 361 (1989) (for the Court)
Harmelin v. Michigan, 501 U.S. 957 (1991) (for the Court and concurring)
Callins v. Collins, 510 U.S. 1141 (1994) (concurring)
Almendarez-Torres v. United States, 523 U.S. 224 (1998) (dissenting)
Apprendi v. New Jersey, 530 U.S. 466 (2000) (concurring)
Ring v. Arizona, 536 U.S. 584 (2002) (concurring)
Blakely v. Washington, 542 U.S. 296 (2004) (for the Court)
Johnson v. United States, 135 S. Ct. 2551 (2015) (for the Court)
By keeping this list focused only on sentencing cases, I have left off many of Justice Scalia's hugely consequential opinions on lots of other criminal law matters (see, e.g., Crawford and Heller). And, I suspect that some readers think fondly (or perhaps not so fondly) of other Scalia sentencing opinions no listed above. But even this abridged list highlights how profoundly significant Justice Scalia was in shaping modern sentencing jurisprudence.
Prior related post:
Did any real chance of federal statutory sentencing reform in 2016 die along with Justice Scalia?
My mind continues to race with all the jurisprudential and political ramifications of the unexpected death of Justice Scalia yesterday. But, as the question in the title of this post is intended to highlight, I fear there is likely a very significant legislative ramification that will disappoint those eager for federal sentencing reform. Put simply, I think the chances Congress will pass any significant federal sentencing reform have become greatly diminished now that replacing a Supreme Court Justice is the main concern and focus for nearly everyone inside the Beltway.
One big reason I really think the coming controversy over Justice Scalia's replacement will impede continued forward movement on federal statutory sentencing reform is that opponents of Prez Obama see sentencing reform as part of his effort to produce a legal legacy. (At the end of his recent floor speech against the leading sentencing reform bill, Senator Tom Cotton made this observation: "In the discussion over the Sentencing Reform & Corrections Act, there is much talk of legacy, and in particular the legacy of President Obama after he leaves office.") With a SCOTUS pick necessarily about a President creating a legal legacy, I fear that GOP Senators will now be ever more disinclined to move forward with legislative reforms that Prez Obama favors.