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February 26, 2016

Could a new group called Public Safety Officials on the Death Penalty really impact discussions of death penalty reform?

The question in the title of this post is prompted in part by this recent piece by Ted Gest at The Crime Report headlined "Justice System Voices Question Capital Punishment."  Here are excerpts:

As support for capital punishment in the United States erodes, one viewpoint not often heard in debates on the issue is that of the people who do the work that leads to executions: officials of the criminal justice system.

A Washington, D.C., organization called The Constitution Project is moving to fill that gap, with a group called Public Safety Officials on the Death Penalty (PSODP), which it describes as "an independent group of current and former law enforcement, prosecutors and corrections officials strongly concerned about the fairness and efficacy of the death penalty in America."...

[T]he new panel of public safety officials is offering its expertise to policymakers in states that are considering whether to continue executions. The group has three co-chairs: former Virginia Attorney General Mark Earley, former Massachusetts corrections commissioner Kathleen Dennehy, and former Southern Pines, N.C., Police Chief Gerald Galloway, who formerly led the North Carolina Chiefs of Police Association. The group says it stands ready to provide information. It does not take a formal stand on whether capital punishment should be abolished, but it is clear that the co-chairs believe that the current system is not operating fairly and efficiently.

Former Police Chief Galloway declares that the capital punishment system is "dysfunctional," noting that it often takes many years to put an accused murder to death, and that more than 150 people have been removed from death rows in various states after being exonerated or having their convictions overturned for legal reasons. Noting that some convicted murders spend decades on death row amid seemingly endless legal appeals, Galloway told The Crime Report, "The system is unfair. It is too expensive. Some innocent people end up on death row, and victims' families wait for justice that never occurs."

Dennehy said her biggest concern was "the possibility of executing an innocent person -- that is too high a price to pay." S he also cited allegations of "botched executions" in Oklahoma and elsewhere, saying that corrections employees who must carry out the sometimes tricky lethal injection process can suffer psychological harm. (Oklahoma inmate Clayton Lockett died in 2014 more than an hour after he was placed on an execution gurney after an employee had difficulty inserting a needle.)

Earley, who served as Virginia’s attorney general from 1998 until mid-2001, said last year he had changed his views and now opposes capital punishment. "If you believe that the government always ‘gets it right,’ never makes serious mistakes, and is never tainted with corruption, then you can be comfortable supporting the death penalty," he wrote in the University of Richmond Law Review.  “I no longer have such faith in the government and, therefore, cannot and do not support the death penalty."

Some members of the new group favor capital punishment, but the entire panel agreed that, "each of us is ready to explore alternative ways to achieve a more just and effective public safety system.”  Unless the system can be fixed to insure that innocent people are not sent to death row and that the appeals of those who are convicted in capital cases are handled promptly, those found guilty of murder should serve a maximum penalty of life in prison without the possibility of parole, Galloway and Dennehy said.

Members of the new group will offer their expertise to officials in states considering whether to retain the death penalty, Galloway said. "We represent a powerful perspective" he said, referring to their years of experience working in the justice system.

One major state that faces a close public vote on the issue is California, where there may be competing propositions on the November ballot: one to speed executions and another to abolish capital punishment.... As of last year, California had by far the nation's largest death row, housing 743, inmates, and last conducted an execution in 2006. Jeanne Woodford, former California corrections director, is a member of The Constitution Project's new panel.

February 26, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"Internalizing Private Prison Externalities: Let's Start with the GED"

The title of this post is the title of this interesting and timely new piece by David Siegel recently posted on SSRN. Here is the abstract:

Prison education is a remarkably good investment for society, yet an increasing proportion of inmates have no access to it because the operators of the prisons in which they are held have a powerful incentive not to provide it: they make more money that way.  Critics and analysts of private prison operators have suggested various incentive structures to improve their performance, but most jurisdictions focus on the operator’s cost to the contracting entity. The social costs imposed by foregoing prison education are not part of the arrangement between a private prison operator and a jurisdiction with which it contracts.  Although these costs are real and substantial to the inmates who bear them, because the inmates are not parties to the contract, these costs are externalities.

Imposing these social costs on prison operators could improve the conditions for inmates in their custody and is very likely to improve these inmates’ success after release. Unlike more complex strategies for imposing incentives on correctional programs to reduce recidivism, prison education is a known, straightforward rehabilitative strategy whose provision can be measured quite easily at the point of release.  There is even a well-accepted metric for prison education administered by an independent third party: the General Educational Development Test (GED).  This article proposes using the GED to internalize the cost of reduced or poor inmate education by imposing financial penalties on private prison operators whose inmates do not obtain, or make progress toward, a GED during their incarceration. This would provide the social benefits of inmate education, alter private prison operators’ behavior at minimal administrative cost, and most importantly, benefit inmates being released.

February 26, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

February 25, 2016

Acknowledging and reflecting on the costs, both economic and emotional, that flow from proper implementation of Miller retroactively

This local article from Florida, headlined "Killer's brain development at issue in re-sentencing," provide a significant and sobering (and ultimately incomplete) account of the challenges many courts in many states are to face as they comply with the SCOTUS mandates in Miller and Montgomery that require the resentencing of any and every teen killer previously given a mandatory LWOP sentence.  Here are the basic details about this local case:

Maddie Clifton's killer will have his brain development reviewed by an expert before his re-sentencing hearing, a judge decided Thursday. Joshua Phillips, now 31, was convicted in the 1998 murder of 8-year-old Maddie and was sentenced to life without parole.  At the time of the murder, Phillips was 14....

The U.S. Supreme Court ruled in 2012 that automatic life without parole sentences for juveniles are unconstitutional. In 2015, the Supreme Court said that law applies to previous cases and that it is retroactive ....

“We have a duty to re-sentence the man and give him a proper opportunity,” Judge Waddell Wallace said in court Thursday.

Phillips' attorney, Tom Fallis, filed two motions with the court: one for a new sentencing hearing and another to have the court cover the costs of calling new experts to determine the proper sentencing.  Both motions were granted.

Fallis said some of the medical expertise from Phillips' original trial is no longer relevant, because of current research into juvenile psychology. "We're going to need a lot of experts," Fallis said. "This is going to be a very long hearing when it's set, and there will be evidence from what's happened in the last 20 years, what's happened in prison. I suspect there may be experts on prison life and how it affected a 14-year-old' who's now 30 some odd years old' and so the court needs to be educated. And the way you do that is through experts."

The state argued that calling new specialists and expert could be “absurd” and costly, but Wallace agreed to hiring a new expert and said the findings will be essential to the case, because of Phillips' brain development.

Police said Phillips, Maddie's neighbor, stabbed her and clubbed her to death in his San Jose area home. He hid her body under his waterbed in his room. Phillips' mother discovered the body a week later, after a massive search for the missing girl.  Phillips was convicted a year later.

I submitted amicus briefs in both Miller and Montgomery arguing for the Eighth Amendment rules as adopted and applied in those case, and I think it appropriate that this defendant finally have a chance for a discretionary sentencing hearing after he was decades ago mandatorily given an LWOP sentence for a crime committed at age 14.  And, though I am not quite sure this defendant really needs " a lot of experts" funded by the state to proceed with a proper resentencing, I also think it appropriate that the judge in this case recognized the need for giving the defense some additional resources to conduct a sound "Miller" resentencing.

That all said, I also think it appropriate for any and everyone like me who approved of the results in Miller and Montgomery to note and cope with the considerable costs that taxpayers and individuals are now going to have to endure.  Court resources are always finite, both in terms of time and money, and this press story highlights that it seems a significant amount of the limited court resources are now going to have to be devoted to the very challenging task of figuring out what now is a fair and effective sentence for "Maddie Clifton's killer," Joshua Phillips.  Moreover, and not mentioned in this story, I can only begin to imagine the emotional challenges that resentencing in this case will create for any and everyone connected to both the defendant and the victim.   

Though I continue to believe that mandatory juve LWOP sentencing is very wrong, this story is a reminder that it did have the notable virtue of being very easy. 

February 25, 2016 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24)

"Does Smarter Sentencing Equal Lower Prison Numbers?"

The title of this post is the headline of this lengthy new piece by Adam Wisnieski at The Crime Report, which is largely a report on what various experts are saying about the impact of modern sentencing reforms on prison populations.  I recommend the piece in full, and here are some excerpts (with a few of the original's links preserved):

Most analysts agree that states have been much further ahead than the feds on these issues.  For the past year, members of Congress have been debating a variety of bills that would make changes to federal sentencing guidelines similar to some of the revisions already underway at the state level.  The proposed Sentencing Reform and Corrections Act has received widespread bipartisan support — but is now stalled by the resurgence of concerns that relaxing punishment standards would lead to an increase in crime.

There’s no shortage of voices about what type of impact that bill would have.  But few seem to look to states for lessons, regardless of the well-worn phrase about them being “laboratories of democracy.”  Have states been successful?  Experts contacted by The Crime Report had different views. 

Adam Gelb, director of The Pew Charitable Trusts’ Public Safety Performance Project said that the national conversation on criminal justice is undergoing a transformation. “We are really starting to see a culture shift in which policymakers are becoming eager to base decisions on data and evidence rather than emotion or ideology,” Gelb said in an interview. “There’s been a tremendous amount of progress but there’s still a long way to go.”

Other researchers disagree, saying there is more smoke than fire in state efforts.  Minor tweaks to sentencing policies, which they say is largely what states have done, have not worked to significantly impact the nation’s mass incarceration problem. “Most states have not made any progress,” says James Austin, who runs the Washington, D.C.- and California-based JFA Institute, a criminal-justice consulting firm. “Those that are making some progress, it’s been pretty miniscule.”

Michael Tonry, director of the Institute on Crime and Public Policy of the University of Minnesota argues the same thing.  In his new book, Sentencing Fragments: Penal Reform in America, 1975-2025, Tonry describes states’ approach to reducing prison population through minor changes to sentencing and release policies as “nibbling” around the edges of the problem.  “What’s being done is these little tiny tweaking around the edges, and then making big projections,” he said in an interview with The Crime Report. “That’s not how the world is going to change.”...

About 13 percent of our country’s prisoners are serving time in federal prisons. The other 87 percent, more than 1.3 million people according to the Bureau of Justice Statistics, are in state prisons.

That number of state prisoners hasn’t changed dramatically in the last decade; it’s leveled off. The number of people in state prisons is about the same as it was ten years ago.  From 2004 to 2014, the state prison population went up from roughly 1.32 million to 1.35 million, according to the Bureau of Justice Statistics.

That most recent number (1.35 million state prisoners in 2014) is down from its high water mark, 1.41 million in 2008.  Critics suspect the leveling off could be attributed to harsh sentences imposed in the 1980s and 1990s finally coming to an end. But defenders point to the nation’s decreased incarceration rate as real progress.  The nation’s adult incarceration rate, which includes offenders in not only state prisons, but federal prisons and local jails, dropped 10 percent from 2007 to 2014, from 1 in 100 to 1 in 111.  “The incarceration rate has declined steadily each year since 2008,” notes the most recent report on the correctional populations in the U.S. by the Bureau of Justice Statistics.

Last week, The Sentencing Project released an analysis on how well states have handled the problem of growing prison populations. “Relatively modest,” the report concluded.  “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,” reads the report. “The overall pace of change, though, is quite modest given the scale of incarceration.”

Tonry says one reason why reforms in certain states haven’t achieved projected gains is that stakeholders like prosecutors, judges and parole boards are not invested in changing the system.  “The problem with tweaking things is they have to be implemented by somebody,” he said....

One state that has gotten a lot of press recently for figuring out how to successfully reform harsh sentencing laws is Georgia.  In 2011, Georgia Gov. Nathan Deal signed a bill that modified mandatory minimum sentences on drug charges, gave judges more discretion in drug sentencing, raised the felony threshold for certain theft crimes.  Since the bill was signed, Georgia’s prison population has gone down every year, from 55,944 in 2011 to 52,949 in 2014, a slight decrease but a decrease nonetheless.

If that bill, along with another bill on juvenile justice in 2012, had not been passed, the state says its prison population would have gone up by 8 percent and cost $264 million more to expand capacity.  The policy change has saved the state millions, but according to a report last year by the state’s Council on Criminal Justice Reform, Georgia’s prison population is projected to go up every year over the next five years.

So at least for Georgia, success seems to be measured on figuring out how to slow the increase, but not to reverse the trend. There is reason for optimism, though. Despite those projections, the prion population has actually continued its downward trend — and policymakers haven’t given up. After initial reforms were passed in 2011, Georgia has passed reforms every year since 2011, something states like Kentucky haven’t done.   “Georgia is back year after year,” said Gelb. “That kind of reform-minded environment can have an impact well beyond specific changes to law and policy.”

February 25, 2016 in Data on sentencing, Scope of Imprisonment, State Sentencing Guidelines | Permalink | Comments (2)

Former judges and Justice in Washington urge state's current Justices to strike down state's death penalty

This AP article from Washington reports on a notable brief filed in a capital case in the state Supreme Court.  The article is headlined "Dozens of judges ask Washington high court to ban death penalty," and here are excerpts:

Washington state's relationship with the death penalty over the past few decades has been so tenuous that even mass killers, serial killers and a cop killer have escaped it.  Only five people have been executed in the past 35 years. Gov. Jay Inslee, a one-time supporter of capital punishment, has said no executions will take place while he's in office.  And the state prosecutors association has called for a referendum on whether to bother keeping it on the books.

Now, the state's high court, which came within one vote of striking down the death penalty a decade ago, is re-examining it.  Dozens of former Washington judges have taken the unusual step of urging the court to find it unconstitutional this time — including former Justice Faith Ireland, who sided with the narrow majority in upholding capital punishment back in 2006.

Arguments are scheduled for Thursday in the case of Allen Eugene Gregory, who was convicted of raping, robbing and killing Geneine Harshfield, a 43-year-old cocktail waitress who lived near his grandmother, in 1996.

His lawyers are challenging his conviction and sentence, including procedural issues and statements made by a prosecutor during the trial.  But they also insist that the death penalty is arbitrarily applied and that it is not applied proportionally, as the state Constitution requires.  Certain counties — especially Pierce, where Gregory was convicted — have been aggressive about seeking execution, while others have said a death-penalty case would quickly bankrupt them, making the location of the crime a key factor in whether someone might be sentenced to death....

One of the newer justices, Charles Wiggins, has expressed concerns over indications blacks are statistically more likely to be sentenced to death in Washington than whites, while another, Sheryl Gordon McCloud, represented defendants who had been sentenced to death — and criticized the way the death penalty is applied — during her previous career as an appellate lawyer....

In its brief, the Pierce County Prosecutor's Office urged the court to uphold the punishment, which is allowed by the federal government and 32 states.  It argued the court has repeatedly upheld capital punishment, that those rulings should stand, and that Gregory shouldn't be allowed to make his constitutional arguments because he did not properly preserve those issues for appeal.  "Since death penalty abolitionists are unable to convince large numbers of Washingtonians to abolish the death penalty, defendant turns to this court in hopes that he can convince five of the court's members that abolishing the death penalty is reflective of current public opinion," deputy prosecutor Kathleen Proctor wrote.  "Essentially, defendant asks this court to become a legislative entity and to override the desire of the people of this state to have the death penalty as an available sanction for certain homicides."

In joining 55 other ex-judges who signed a brief filed by the American Civil Liberties Union of Washington urging an end to capital punishment, Ireland, who served a single term on the Supreme Court, was particularly concerned about geographical disparities in death sentences — an issue that the majority held was not squarely before the court in 2006.  "We can't call the death penalty anything but arbitrary when it depends on whether you kill someone in a rich county or one that can't afford such a trial," she wrote in an email to The Associated Press.  "That could be fixed in my opinion by having death penalty prosecutions and defenses funded at the state level."

February 25, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

February 24, 2016

Vetting Brian Sandoval: who might (other than Ohio State fans) get super excited about his possible SCOTUS nomination? UPDATE: Gov Sandoval does not want to be considered!

This afternoon I receive two email news alerts about a new SCOTUS nominee "front-runner": Nevada GOP Gov Brian Sandoval.  I had been planning to do a post about Gov Sandoval as an interesting possible SCOTUS candidate over the weekend, but a few folks I spoke with suggested it would be almost silly to imagine Prez Obama nominating a GOP elected official.  But, this Washington Post article, headlined "Republican governor of Nevada Brian Sandoval being considered for Supreme Court," suggests that at least a few Beltway insiders are having silly thoughts similar to mine.  Here are the basics with the Post:

Brian Sandoval, the centrist Republican governor of Nevada, is being vetted by the White House for a possible nomination to the Supreme Court, according to two people familiar with the process. Sandoval is increasingly viewed by some key Democrats as perhaps the only nominee President Obama could select who would be able to break a Republican blockade in the Senate.

Senate Majority Leader Mitch McConnell (R-Ky.) on Tuesday pledged “no action” on any Supreme Court nomination before November’s election, saying the decision ought to be left to the next president. The White House declined to comment Wednesday for this story. White House press secretary Josh Earnest has emphasized in recent days that the president has not arrived at a short list of potential nominees.

The nomination of a GOP governor — albeit one with a bipartisan record — could break that resolve.

Sandoval met Monday with Senate Minority Leader Harry M. Reid, a fellow Nevadan with whom he enjoys cordial relations. A person familiar with the conversation said that while Sandoval told Reid he had not made a final decision on whether he would accept a Supreme Court nomination, he would allow the vetting process to move forward. Another person in Nevada familiar with the process confirmed that the process is underway....

It is unclear how many potential nominees are undergoing White House vetting for the high court vacancy left by Justice Antonin Scalia’s death. Obama was seen last week carrying a thick binder of materials on potential picks to review.

Obama outlined his thinking in a guest posting on SCOTUSblog Wednesday [available here]: “A sterling record. A deep respect for the judiciary’s role. An understanding of the way the world really works. That’s what I’m considering as I fulfill my constitutional duty to appoint a judge to our highest court.”

Some Democrats believe that nominating Sandoval could fracture the front of Republican opposition and force McConnell to take up the nomination in this contentious election year. It would also put on the spot a handful of Senate Republicans who are up for reelection in blue states in November.

The Senate unanimously confirmed Sandoval as a district court judge in 2005 after he was nominated by President George W. Bush. The Nevada Republican stepped down from the bench in 2009 to run for governor and is now counted among the most popular governors in the nation. He also represents a swing state with a heavy concentration of Latinos who will be important in the presidential race.

One Republican who is considered likely to support Sandoval if nominated is Nevada’s junior senator, Dean Heller. Heller suggested in a statement last week that the “chances of approving a new nominee are slim” but he did not discourage Obama from putting forth a nominee. “[W]ho knows, maybe it’ll be a Nevadan,” he said — a comment widely interpreted as signaling his support for Sandoval.

But nominating Sandoval would carry risks for Obama. Sandoval is aligned with Democrats on some key issues, including abortion rights and the environment. As governor, he has moved to implement the Affordable Care Act, and has said he considers same-sex marriage to be a settled issue. But Sandoval is not seen as labor-friendly — potentially alienating a swath of the Democratic base. His legal credentials are also lacking compared to some of the other names under consideration who are mainly sitting federal judges.

A Senate confirmation of Sandoval through this year could deny a Democratic successor to Obama, whether Hillary Clinton or Bernie Sanders, the opportunity to nominate a more orthodox liberal to the court and cement an ideological shift in its jurisprudence. Asked by The Morning Consult in a brief interview Saturday about a potential nomination, Sandoval said, “It would be a privilege,” calling the Supreme Court “the essence of justice in this country.”...

As governor, Sandoval alienated many conservatives by accepting the Medicaid expansion that was a cornerstone of Obama’s Affordable Care Act, and one of his recent budgets, passed over the opposition of many Republicans in the legislature, included tax hikes designed to boost funding for the state’s notoriously under-performing public schools.

One big reason I was thinking about blogging about Gov Sandoval even before this news broke is the fact that he received his law training at the law school where I now teach: The Ohio State University Moritz College of Law.  Because Gov Sandoval graduated in 1989 from OSU College of Law, he was at "my" law school roughly a decade before I started teaching here. But he has long been an OSU alum whose career I have closely followed, and I have had the pleasure to meet Gov Sandoval a few times. (In addition, no doubt because Gov Sandoval became a US District Court judge not long after the Booker decision, he mentioned once that he was familiar with this blog.)

Though it may be a waaaay too premature to get too excited about the prospect of a Justice Sandoval, folks interested in know more about his personal background and his family's many links to Ohio State should check out this article from our OSU College of Law alumni magazine. Here is an excerpt that perhaps will help others join me in considering Gov Sandoval as a very appealing possible SCOTUS nominee:

Sandoval returned to Moritz on March 15 to share his thoughts on leadership as the keynote speaker for the Program on Law and Leadership’s Fifth Annual Speaker Series. The former Nevada attorney general, state legislator, and federal judge spoke in detail about “transformational” and “ser­vant” leadership. “You can never go wrong when you make prin­cipled decisions,” he said. “Don’t take shortcuts.”

Sandoval grew up in Sparks, Nev., where he raised sheep and sold wool for spending money as a child. His mother, a legal secretary, often took him to work. Sandoval said his first job outside of selling wool was working in the cafeteria of a federal courthouse.

He graduated from the University of Nevada, Reno in 1986 and chose The Ohio State University for law school over the University of California Hastings College of Law in San Francisco. Sando­val’s brother, Ron, was in veterinary school at Ohio State when Sandoval made the decision to come to Columbus. “I had never set foot in Ohio,” he said. The brothers started somewhat of a family tradition: Their mother, Teri Sandoval, would later earn her Ph.D. in education from Ohio State.

Sandoval returned to Nevada after graduation and entered public life shortly thereafter. He was elected to serve in the Nevada Legislature in 1994 and became the youngest state gaming commis­sion chairman a few years later, at age 35.

Sandoval became the first Hispanic elected to statewide office in Nevada when he was elected attorney general in 2002. It was the first of many such designations: Sandoval is Nevada’s first Hispanic governor and became its first Hispanic federal judge when he was appointed to the bench by President George W. Bush in 2005. “I wish I wasn’t the first. It shouldn’t have taken this long,” he said.

Sandoval credits the help of mentors, including former Nevada Gov. Kenny Guinn and longtime Nevada state legislator William Raggio, for inspir­ing him to think longterm and “make the right decision, not the popular decision” when faced with tough challenges. Sandoval encountered plenty during his first stint in statewide office.

His first week as attorney general had him fac­ing journalists during a press conference on one of the most pressing issues of his tenure: Yucca Mountain. As attorney general, Sandoval led the state’s efforts to prevent the federal government from storing nuclear waste at the site. During his first year in the Attorney General’s Office, a budget stalemate at the statehouse resulted in a crisis that threatened to leave public schools unfunded as lawmakers failed to reach the two-thirds supermajority the state required for any tax increase.

At the request of then-Gov. Guinn, his office sought a writ of mandamus to force the Legislature to pass a budget. The case ended up before the Supreme Court of Nevada, which granted the writ and ordered the Legislature to pass a budget by simple majority. The outcome drew protest from some GOP leaders.

Sandoval, a Republican, said he remembered the advice of his mentors – thinking of long-term effects and making principled, sometimes un­popular decisions – whenever he took heat from members of his own party. “It was important to me that (the attorney gen­eral’s office) be a law office, not a political office,” he said.

Prior related posts on new SCOTUS nominee possibilities:

UPDATE on Feb. 25: Gov. Sandoval, according to this new local press report, "took his name out of consideration Thursday for a possible nomination to the U.S. Supreme Court." Oh well, I guess I now have to go back to rooting for the elevation of Sixth Circuit Judge (and former Justice Scalia clerk) Jeff Sutton to bring a Buckeye law degree to a seat on the Supreme Court. And I also now need to be thinking about the next new name to consider as a short-lister for Prez Obama.

February 24, 2016 in Who Sentences? | Permalink | Comments (8)

"Judging Federal White-Collar Fraud Sentencing: An Empirical Study Revealing the Need for Further Reform"

The title of this post is the title of this notable new paper now available via SSRN authored by Mark Bennett, Justin Levinson and Koichi Hioki.  Here is the abstract:

White-collar federal fraud sentencing has long been fraught with controversy and criticism. As a result, the U.S. Sentencing Commission’s intensive multi-year examination of sentencing for fraud crimes generated tremendous interest among the Department of Justice, criminal defense organizations, the academy, and a wide-range of advocacy groups.  In November 2015, the Commission’s publicly announced proposed amendments became law without Congressional change.  These amendments, while commendable in process and purpose, fall short of sorely needed reforms that would serve to realign white-collar fraud punishments with legitimate penal justifications.  This Article portrays the recent historical tension between the Federal Sentencing Commission and federal judges, and presents the results of an original empirical study that demonstrates clearly the continuing need for significant reforms.

The Article begins by framing the problem of fraud sentencing within modern criminal law, and examines the statistical reality of economic crime sentencing since the 1980s, which has been increasingly characterized by downward departures from harsh recommend minimum sentences.  It then details an original empirical study we conducted on 240 sitting federal and state judges, just as the new sentencing guideline amendments were passing untouched through Congress.  This study presented judges with a realistic pre-sentence report for a multimillion-dollar economic crime, and asked judges to sentence the defendant.  We found that a remarkable 75% of federal district court judges sentenced the defendant to the precise minimum sentence of a possible seven year range.  The study further compared the judges’ sentences across judicial cohorts and evaluated the role of judges’ individual sentencing philosophies, age, religion, and the political party of the appointing president.  Despite a range of interesting differences in sentencing philosophy and self-reported attitudes found based on these factors, federal judges’ overwhelming agreement regarding minimum sentencing largely transcended their other differences.

The Article considers the results of the study in the context of the revised guidelines as well as scholarly reform suggestions, and offers five specific proposals to reform the guidelines, beginning with significant cuts to the so-called “loss table” as well as the specific offense characteristics that frequently lead to near-nonsensical sentencing guidelines.

February 24, 2016 in Data on sentencing, Federal Sentencing Guidelines, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (2)

What does (closet libertarian?) GOP front-runner Donald Trump now really think about the drug war and criminal justice reform and Prez clemency?

Based on his personal and professional history, as well as a number of his prior positions on a range of social and economic issues, I have long assumed the essential political views and commitments of Donald Trump to be what might be called "pragmatic libertarianism."  I say that in part because most successful private businessmen in the United States, in addition to being generally pragmatic, tend to have at least some hint of a libertarian streak on at least some issues (e.g., think of the Koch brothers or Peter Lewis).  More to the point, as I have flagged in prior posts here and  on my marijuana reform blog, Donald Trump once embraced the libertarian view that full legalization would be the only way to "win" the drug war.

But, of course, Donald Trump the Presidential candidate has sounded far more authoritarian than libertarian on the campaign trail, especially with respect to domestic issues.  He conveniently says that he has now changed his mind about abortion and thus now is pro-life rather than pro-choice.  He also has expressed in vaious ways disaffinity for marijuana legalization (though his position seems to get more and more nuanced as time goes on, as highlighted in posts here and here from my marijuana reform blog).  Then again, to the extent a single idea summarizes Trump's modern politics, it would seem to be "anti-establishment"; I think it is accurate to describe The Establishment, on both the left and the right, to be quite statist and generally anti-libertarian.  

I say all this not to claim that Donald Trump is the most libertarian candidate still with a serious chance to become President (although this might be true).  Rather, I say it in order to try to figure out whether, when and how the candidate now seemingly most likely to represent the GOP on the national stage for the bulk of 2016 will articulate his latest thinking about federal criminal justice issues ranging from statutory sentencing reform of mandatory minimum sentences for drug offenders to federal responses to state marijuana legalization to the robust use of federal clemency powers.  

Obviously, how the last five or six US presidents have approached these federal criminal justice issues, both politically and practically, has had a huge impact on the nature and reach of our nation's federal and state criminal justice systems.   Before I can even figure out whether I should be terrified by the prospect of a President Trump, I really am eager to hear more about his current thoughts on these important criminal justice fronts.  Critically, not only would Trump's discussion now of these issues help me better understand long-term what would a President Trump might actually do, I think they could have a big short-term impact on the work of the current Congress and the current President (and even the current Supreme Court) in these areas.

With apologies for my (silly?) Prez Trump musings in the wake of his latest "yuge" win in Nevada, I am eager to hear lots of thought from lots on readers on this political and legal front.

February 24, 2016 in Clemency and Pardons, Federal Sentencing Guidelines, Pot Prohibition Issues, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (9)

Vera Institute of Justice launches "The Human Toll of Jail"

6a00d83451574769e201bb08323a26970dI received an email this morning announcing the launch of a notable new project by The Vera Institute of Justice. Here is the heart of the email (with a few links) detailing what the project is all about:

The Human Toll of Jail [is] a national storytelling project about the uses and abuses of jails in the United States, supported by the John D. and Catherine T. MacArthur Foundation’s Safety and Justice Challenge.

The Human Toll of Jail uses poignant essays, videos, comics, and photojournalism to tell the stories of Americans who have been caught up in local justice systems as well as highlight unexpected voices for reform from the frontlines — including judges, prosecutors, healthcare providers, and others.  Along with every story featured here, the project offers additional resources with research, policy analyses, and best practices that address the larger questions and issues around local jails.  Stories in the project include:

  • INSIDE THE MASSIVE JAIL THAT DOUBLES AS CHICAGO’S LARGEST MENTAL HEALTH FACILITY — Since drastic budget cuts left thousands of Chicagoans without access to reliable mental health care, all too many are getting their only real treatment when they land behind bars.

  • RETURN TO RIKERS — After two decades of incarceration, Patrick went back to Rikers Island for the first time in 20 years — to visit his son.  His story is told here as comics journalism.

  • THE JAIL WITHOUT BARS — At one Idaho correctional facility, an innovative approach is built on a commitment to the site’s workers and an investment in the inmates’ success.  The result is a jail that looks nothing like the ones you’ve seen on TV.

  • A NEW APPROACH TO PROSECUTION — Local prosecutors across the country wield enormous power to make decisions that affect the flow of people in and out of often-overcrowded jails. With that power in mind, the district attorney in one California county wants to upend the way we think about his job responsibilities.

  • JUDGING WITHOUT JAIL — Many states have made moves to end the fruitless cycle of arrest and incarceration by moving nonviolent defendants out of prosecution and into more productive intervention programs. One New Orleans judge has seen just how effective this approach can be.

February 24, 2016 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (1)

"Why and How the Supreme Court Should End the Death Penalty"

The title of this post is the title of this new article by Kenneth Williams recently posted to SSRN. Here is the abstract:

In a recent opinion dissenting from the Supreme Court’s holding that a certain drug used in carrying out lethal injections is constitutional, Justice Breyer urged the Court to reconsider whether the death penalty is constitutional. Although the Court has so far declined Justice Breyer’s invitation, his dissent has provoked a discussion as to whether the United States should continue to use the death penalty.  The purpose of this article is to contribute to that discussion.

The article begins with a discussion of the reasons that public support for the death penalty has declined during the last 20 years.  Problems in the administration of the death penalty, such as the increasing numbers of exonerations, the continued racial disparities in death sentencing, the continued arbitrary application of the death penalty, and the substandard representation that many defendants receive are identified as the main reasons for this decline.  The author concludes that going forward, the Supreme Court has two options available in addressing these problems: it can continue to try to reform the death penalty to make it fairer or it can abolish the death penalty.  The article discusses some possible reforms that can be attempted but concludes that these reforms are unlikely to have a significant impact in making the death penalty fairer.  Therefore, the author concludes that the only option available to the Court is to completely abolish the death penalty.

The author argues that the doctrinal framework for the Court to abolish the death penalty is already firmly in place.  The Court could choose to abolish the death penalty for one of several reasons.  First, it could find the death penalty violates Equal Protection because of the continued racial disparities in its application.  Second, there are several Eighth Amendment grounds upon with the Court could rely.  For instance, in the past the Court has found that the application of the death penalty to juveniles and mentally retarded offenders violated the Eighth Amendment because of “evolving standards of decency.”  The Court could similarly find that, given the direction of the states in either abolishing the death penalty by statute or in practice and the significant decline in death sentences by juries, that the continued use of the death penalty also violates “evolving standards of decency.”  Finally, the author responds to several likely objections that will be made in the event the Court seriously considers abolishing the death penalty, such as the text of the Constitution and the fear of another Furman type public backlash.

February 24, 2016 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

February 23, 2016

Former UN Secretary-General Kofi Annan explains "Why It's Time to Legalize Drugs"

This new Huffington Post commentary, titled "Why It's Time to Legalize Drugs," is authored by Kofi Annan, who served as Secretary-General of the United Nations from 1997 to 2006. Here is part of his pitch:

Nowhere is [the] divorce between rhetoric and reality more evident than in the formulation of global drug policies, where too often emotions and ideology rather than evidence have prevailed.

Take the case of the medical use of cannabis. By looking carefully at the evidence from the United States, we now know that legalizing the use of cannabis for medical purposes has not, as opponents argued, led to an increase in its use by teenagers. By contrast, there has been a near tripling of American deaths from heroin overdoses between 2010 and 2013, even though the law and its severe punishments remain unchanged.

This year, between April 19 and 21, the United Nations General Assembly will hold a special session on drugs and the world will have a chance to change course. As we approach that event, we need to ask ourselves if we are on the right policy path. More specifically, how do we deal with what the United Nations Office on Drugs and Crime has called the "unintended consequences" of the policies of the last 50 years, which have helped, among other things, to create a vast, international criminal market in drugs that fuels violence, corruption and instability? Just think of the 16,000 murders in Mexico in 2013, many of which are directly linked to drug trafficking.

Globally, the "war on drugs" has not succeeded. Some estimate that enforcing global prohibition costs at least $100 billion (€90.7 billion) a year, but as many as 300 million people now use drugs worldwide, contributing to a global illicit market with a turnover of $330 billion a year, one of the largest commodity markets in the world.

Prohibition has had little impact on the supply of or demand for drugs. When law enforcement succeeds in one area, drug production simply moves to another region or country, drug trafficking moves to another route and drug users switch to a different drug. Nor has prohibition significantly reduced use. Studies have consistently failed to establish the existence of a link between the harshness of a country's drug laws and its levels of drug use. The widespread criminalization and punishment of people who use drugs, the over-crowded prisons, mean that the war on drugs is, to a significant degree, a war on drug users -- a war on people.

Africa is sadly an example of these problems. The West Africa Commission on Drugs, which my foundation convened, reported last year that the region has now become not only a major transit point between producers in Latin America and consumers in Europe, but an area where consumption is increasing. Drug money, and the criminality associated with it, is fostering corruption and violence. The stability of countries and the region as a whole is under threat.

I believe that drugs have destroyed many lives, but wrong government policies have destroyed many more. We all want to protect our families from the potential harm of drugs. But if our children do develop a drug problem, surely we will want them cared for as patients in need of treatment and not branded as criminals.

February 23, 2016 in Drug Offense Sentencing, Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (4)

Latest notable comments by Attorney General Lynch about sentencing reform developments

ImagesVia email alert,I received notice that AG Loretta Lynch is giving this lengthy speech today in DC at the at the National Association of Attorneys General Annual Winter Conference. The speech covers a lot of federal and state criminal justice issues, and this section concerning sentencing policies and reform seemed worth spotlighting here:

Through the Smart on Crime initiative — launched by my predecessor, Eric Holder, in 2013 — we’re directing our prosecutorial resources at the most serious crimes, while investing in diversion and treatment programs like drug courts and veteran’s courts.  And we’re placing a renewed focus on rehabilitation and reentry in order to reduce recidivism, promote public safety and ensure that formerly incarcerated individuals can return to their communities as productive citizens with a meaningful new chance at a better life.

As we all know, improving rehabilitation programs and reentry outcomes doesn’t just help formerly incarcerated individuals; it’s also good for our communities as a whole.  More than 600,000 people are released from federal, state and local prisons every year and their ability to stay on the right path and stay out of the criminal justice system has a tremendous impact on the safety of our neighborhoods and the strength of our nation.  That’s why the Federal Interagency Reentry Council, which I am proud to chair, has brought together more than 20 federal agencies to curb recidivism and foster better prospects for employment, education, housing, healthcare and child welfare.  It’s why the Department of Justice is forging partnerships with the Departments of Education, Labor, Housing and Urban Development and others to boost opportunities for formerly incarcerated individuals and eliminate unnecessary collateral consequences of incarceration.  And it’s why our Office of Justice Programs has offered nearly 750 Second Chance Act grants since 2009, totaling more than $400 million to support reentry efforts in 49 states.

Beyond these and other efforts at the Department of Justice, we are working with Congress to support meaningful legislation that combines front-end sentencing reforms and back-end corrections reforms.  Over the past several months, we’ve seen important progress: sentencing and corrections legislation has been reported out of both the House and Senate Judiciary Committees and both Democrats and Republicans in the House and Senate have spoken out about the pressing need for reform.  The Department of Justice will continue to support federal sentencing laws that reduce the overreliance on mandatory-minimum sentences and improve federal probation and supervised-release programs.

Of course, the Department of Justice and the Obama Administration cannot do this work alone.  As the chief law enforcement officers of this country’s states and territories, you have the ability to bring about much-needed change. Over the past several years, many of you have led the way in helping enact justice system reforms in your own jurisdictions.  This Administration has supported your work through efforts like the Justice Reinvestment Initiative (JRI), which helps states identify the drivers of rising corrections costs and develop solutions to reduce spending and increase public safety.  JRI is currently active in 24 states and the experiences of states like Georgia and North Carolina demonstrate that JRI-involved states can both achieve significant reform — including reductions to incarceration rates — and produce savings while simultaneously enhancing public safety.  Since 2011, Georgia’s prison population has dropped by 8 percent, instead of growing by 8 percent as projected, saving funds and reducing crowding.  North Carolina’s prison population has decreased by almost 3,400 people since 2011 and the state has used savings from the closure of 10 prisons to add 175 probation and parole officers and to invest in intervention and treatment programs.  At the same time, North Carolina’s crime rate has plunged 11 percent.

We will continue to support programs like JRI — and additional efforts that seek to make our criminal justice system more efficient, more effective and more fair across the board.  In fact, President Obama’s budget for this coming fiscal year would invest $500 million in states’ comprehensive criminal justice reform efforts as part of the “21st Century Justice Initiative” — supporting a range of projects, from improving policing, to reducing unnecessary incarceration, to bolstering re-entry services.  This is an exciting and groundbreaking initiative and I am hopeful that Congress will move forward in support of its goals.

February 23, 2016 in Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

Federal district judge in Nebraska calls 10-year mandatory prison sentence for drug offender "absolutely ridiculous"

This local article from the Lincoln Journal Star, headlined "Judge: 10-year sentence is 'absolutely ridiculous'," reports on a notable comments from a federal district judge as he sentenced a seemingly low-level drug offender to a decade in federal prison. Here are the basics from the start and end of the lengthy article:

On a recent Friday in a federal courtroom in Lincoln, a federal judge spoke critically about the 10-year sentence he was on the verge of handing down to the Lincoln man, a nonviolent, recovering meth user. U.S. District Judge John Gerrard's hands were tied.

"The only reason I'm imposing the sentence that I am imposing today is because I have to," he told Leo Guthmiller III on Feb. 12. "That's what Congress mandates." He called Guthmiller, the man at the defense table, Exhibit A for why Congress should pass the Smart on Crime Act. Last June, in a similar case, he called Robyn Hamilton the poster child for it.

In both of the cases, Gerrard, a former Nebraska Supreme Court justice nominated to the federal bench by President Barack Obama in 2011, said the sentence didn't fit the crime. There should be imprisonment, he said, but 10 years in cases like these is ridiculous, draconian even....

[O]n Feb. 12, federal public defender John Vanderslice said Guthmiller got arrested June 20, 2013, at a Lincoln Walmart with a small amount of methamphetamine on him, got accepted into the Lancaster County Drug Court on the state charge and has been clean and sober ever since.

Guthmiller thought drugs were in his past, then, in 2015, he was federally indicted for being part of a conspiracy to distribute methamphetamine in Lincoln back in 2013 for introducing people who were buying and selling it and sometimes getting a cut for it. He pleaded guilty.

"This war on drugs that we are waging in this country with mandatory minimum sentences as applied to a person like Mr. Guthmiller, it's tragic," Vanderslice said at the sentencing. He said it's turned Guthmiller's life upside down.

An emotional Guthmiller apologized for all his past transactions "and everything that's led me to this moment in my life."

"I have worked really hard to turn my life around," he said. "And I'm proud to say that even with all this present stuff facing me that I will continue to do so."

Then, Gerrard handed down his sentence, saying there "should be just punishment, respect for the law. But a 10-year sentence is absolutely ridiculous in a case like this. But there may be another day in court at some point in time." He allowed Guthmiller to report to prison in April.

February 23, 2016 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

February 22, 2016

"On first day without Scalia, Supreme Court faces a possible tie vote" ... in a criminal procedure, Fourth Amendment case

The title of this post is drawn in part from this USA Today article's headline reporting on oral argument today in the Supreme Court in a Fourth Amendment case, Utah v. Strieff.  I thought to flag this story not only because it suggests the now-short-staffed Supreme Court may be unable to resolve tough criminal procedural cases, but also because Strieff might provide an early clue in the coming weeks concerning how the Chief Justice and his colleagues may try to handle divided cases while short-staffed.  Here is how the press report starts:

Without Antonin Scalia's potential tie-breaking vote, the Supreme Court appeared split down the middle Monday in a case that could impact the way police stop and search suspects.

The court's liberal and conservative members took opposite sides in the case — a relatively frequent occurrence, but one that now could produce 4-4 deadlocks in the wake of Scalia's unexpected death Feb. 13. Such verdicts would uphold decisions reached by lower courts without setting any national precedent.

The case involves a Utah police officer's detention of a man leaving a house that was under observation for possible drug-dealing. Based on the discovery of an outstanding arrest warrant for a minor traffic infraction, the man was searched and found to have illegal drugs. The Utah Supreme Court ruled that the initial stop was illegal and the discovery of the arrest warrant insufficient to justify the search and arrest, prompting Utah to appeal.

Of course, there are many times when, even after the Justices appeared deeply divided at oral argument, they ultimately do not split 5-4 (or in this case 4-4) when it comes time to vote on a case's resolution.  And folks interested in reading for themselves how divide the Justice were this morning can find the argument transcript for Utah v. Strieff at this link.

February 22, 2016 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Because Michigan lacks the death penalty, can and should feds consider capital charges against admitted Uber mass murderer?

This new AP article, headlined "Uber driver admits to fatal Michigan rampage," prompts the question in the title of this post now that it seems there were be no questions about guilt in the latest horrific mass shooting.  Here are the disturbing particulars:

The Uber driver suspected in a series of three random shootings in Michigan admitted carrying out the seemingly random attacks that killed six people, a prosecutor said Monday. Jason Dalton waived his right against self-incrimination before making the statement to authorities, Kalamazoo County prosecutor Jeff Getting said.

Dalton's statements to police were used to file charges of murder and attempted murder Monday, two days after the shootings in the Kalamazoo area.  Dalton appeared briefly in court to hear the charges. He was ordered held without bond and will get a court-appointed attorney.

The shootings occurred in a restaurant parking lot, outside an apartment building and at a car lot. Two victims remain hospitalized.

Meanwhile, an Uber passenger said he called police to report that Dalton was driving erratically more than an hour before the shooting rampage began.

Matt Mellen told Kalamazoo television station WWMT that he hailed a ride around 4:30 p.m. Saturday. He said driver Jason Dalton introduced himself as "Me-Me" and had a dog in the backseat.... "I'm upset because I tried contacting Uber after I had talked to the police, saying that we needed to get this guy off the road," Mellen said....

Kalamazoo County Sheriff Richard Fuller said Uber is cooperating with law enforcement officials, and he believes the company will "help us fill in some timeline gaps." Investigators are particularly interested in communication between Dalton and Uber, as well as customers he might have driven, the sheriff said.

Questions about motive and Dalton's frame of mind are "going to be the hardest to answer for anybody," Fuller said.  He expects some answers to emerge in court, but he doubts they will be satisfying. "In the end, I ask people, because I keep hearing this question of why, 'What would be the answer that would be an acceptable answer for you?' They have to think about it for a moment, and they say, 'Probably nothing.' I have to say, 'You are probably correct.'  I can't imagine what the answer would be that would let us go, 'OK, we understand now.' Because we are not going to understand."

If Dalton is convicted, the murder charges carry a mandatory life sentence.  Michigan does not have the death penalty.

Authorities allege that he shot the first victim outside of an apartment complex and that he shot seven others over the next several hours.  Police have not provided a motive. The victims had no apparent connection to the gunman or to each other.

The attacks began early Saturday evening outside the Meadows apartment complex on the eastern edge of Kalamazoo County, where a woman was shot multiple times. A little more than four hours later and 15 miles away, a father and his 17-year-old son were fatally shot while looking at cars at a car dealership.  Fifteen minutes after that, five people were gunned down in the parking lot of a Cracker Barrel restaurant.  Four of them died....

A man who knows Dalton said he was a married father of two who never showed any signs of violence.  Gary Pardo Jr., whose parents live across the street from Dalton in Kalamazoo Township, described him as a family man who seemed fixated on cars and often worked on them.

I do not know enough about federal jurisdiction in capital cases to feel entirely confident that the feds would have a sure-fire jurisdictional basis to take over the prosecution of Jason Dalton.  But if one looks at the crimes that have landed some others on federal death row (listed here thanks to DPIC), most involve many fewer murders than Dalton committed.  And the fact that Dalton was apparently "on the job" for a notable national (internet?) company when he randomly slaughtered six innocent people and critically wounded two others.

February 22, 2016 in Death Penalty Reforms, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (7)

Highlighting that, despite lots of talk and a little action, Prez Obama remains a clemency grinch

Over at his blog Pardon Power, political scientist PS Ruckman does a terrific job tracking and placing in historical context the latest date concerning the use of presidential clemency powers.  And these three recent posts highlight effectively that, despite lots of talk from the Obama Administration about a big clemency initiative, the current President the most notable story to date concerning Obama's clemency record is how stingy it is:

As long-time readers know, I have been urging Prez Obama to live up to his hope and change rhetoric in this arena since the day he was inaugurated seven year ago, as highlighted by these two posts from January 20, 2009: Inaugural rhetoric about freedom and liberty in prison nation and Is it too early to start demanding President Obama use his clemency power?.  (The extensive comments to the second of these posts are especially interesting to review with the benefit of seven years of political hindsight.)  In addition, way back in 2010, I authored this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders," which closed with this recommendation:

President Obama ought to seriously consider creating some form of a "Clemency Commission" headed by a "clemency czar."...  Though a "Clemency Commission" headed by a "clemency czar" could be created and developed in any number of ways, my vision and goals here are meant to be fairly basic.  The idea is for President Obama to create a special expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency.  Though the structure, staffing, and mandates of a Clemency Commission could take many forms, ideally it would include personnel with expertise about the nature of and reasons for occasional miscarriages of justice in the operation of modem criminal justice systems — persons who possess a deep understanding that, in the words of James Iredell, "an inflexible adherence to [severe criminal laws], in every instance, might frequently be the cause of very great injustice.

The Clemency Commission could and should study the modem causes of wrongful conviction, "excessive" sentences, and overzealous prosecutions, and then make formal and public recommendations to the President and other branches about specific cases that might merit clemency relief or systemic reforms that could reduce the risk of miscarriages of justice.  In addition, the Commission could be a clearinghouse for historical and current data on the operation of executive clemency powers in state and federal systems.  It could also serve as a valuable resource for offenders and their families and friends seeking information about who might be a good candidate for receiving clemency relief. Though the creation of a Clemency Commission would be an ambitious endeavor, the effort could pay long-term dividends for both the reality and the perception of justice and fairness in our nation's criminal justice system.

I have reprinted this suggestion here because, though I made the pitch in print more than half a decade ago, it still strikes me as timely and relevant to the on-going discussions about federal criminal justice reform.  Indeed, given this latest data marshalled by PS Ruckman and the seemingly limited success and limited basis for optimism as of February 2016 surrounding "Clemency Project 2014," I think Prez Obama and the rest of the federal criminal justice reform discussion might benefit now more than ever from the creation of some form of a "Clemency Commission" headed by a "clemency czar."  And, especially with US District Judge John Gleeson now only a few weeks away from stepping off the federal bench, there is an obvious candidate for the ideal first clemency czar.

As regular readers (and my students know), I could go on and on and on about this subject and especially about President Obama's unique missed opportunity to create a criminal justice reform legacy in this historically and constitutionally important arena.  But rather than repeat myself, I will just link to just a few of my prior Obama-era posts while starting to wonder in the wake of recent election results whether President Hillary Clinton or President Donald Trump might have the interest and ability to really bring hope and change to a very sorry modern federal clemency history.

Just a few of many recent and older posts concerning the modern ugly realities of federal clemency:

February 22, 2016 in Clemency and Pardons, Criminal justice in the Obama Administration, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

"The Use of Federal Rule of Criminal Procedure 35(b)" to reward cooperators after initial sentencing

The quoted portion of the title of this post is the title of this notable new US Sentencing Commission research report and the second part of the title of this post is intended to highlight exactly why the first part of the title of this post is a sentencing story.  The 42-page report is data-rich, and here is the text of this USSC webpage providing background and noting some of the report's key findings:

This report examines sentence reductions for offenders who cooperate with the government in its efforts to investigate or prosecute others.  Offenders can receive credit for their “substantial assistance” in at least two ways; at the time of sentencing (USSG §5K1.1 departure motions) and after sentencing (Federal Rule of Criminal Procedure 35(b) motions).  In both instances, the government must make a motion for a lower sentence.

This publication discusses the history and current use of Fed. R. Crim. P. 35(b).  It also presents data on the number of Rule 35(b) reductions and the jurisdictions where they are granted; the effects of Rule 35(b) reductions on sentences; and the offense and demographic characteristics of offenders who receive such reductions.  The report also compares the circumstances of offenders receiving Rule 35(b) reductions with those who received USSG §5K1.1 departures. 

Key Findings

A review of the 10,811 cases in which Rule 35(b) reductions were granted over the past six years suggests the following conclusions:

  • Rule 35(b) sentencing reductions are used relatively rarely, but a few districts make frequent use of Rule 35(b) sentencing reductions.  There is no clear data-based explanation for these differences, as these districts vary substantially from one another in overall case load, offense mix, and demographic composition.

  • Most offenders receiving a Rule 35(b) reduction were originally sentenced within the guideline range.  This suggests that courts are rarely departing or varying for reasons other than substantial assistance with this group of offenders.

  • Most offenders receiving a Rule 35(b) reduction were convicted of a drug trafficking offense that carries a mandatory minimum penalty.

  • Rule 35(b) sentencing reductions generally provide less benefit than do § 5K1.1 substantial assistance departures.  This general statement holds true whether the Rule 35(b) sentencing reduction is compared to the §5K1.1 substantial assistance departure in terms of the ultimate sentence length or by the extent of the reduction from the original sentence.  The relatively high number of Rule 35(b) offenders who are convicted of drug and firearms offenses, though, as well as the relatively high number of those subject to mandatory minimum penalties, suggests that these offenders may receive a lower reduction because they are more serious offenders.

  • Although Rule 35(b) sentencing reductions are usually less beneficial to offenders than are §5K1.1 substantial assistance departures, offenders who receive both a §5K1.1 departure and a Rule 35(b) sentencing reduction receive the largest overall reduction in their sentences, regardless of how that reduction is measured.

  • Offenders sentenced in jurisdictions that primarily use Rule 35(b) sentencing reductions overall receive less of a benefit for their substantial assistance than do offenders in jurisdictions that rely primarily on §5K1.1 departures or a combination of Rule 35(b) reductions and §5K1.1 departures.

February 22, 2016 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

February 21, 2016

Will Pope's call for world-wide moratorium on death penalty halt any executions anywhere?

Banners-APERTURA-PUERTA-SANTA-2-ENThe question in the title of this post is prompted by this news from CNN headlined "Pope Francis calls for one-year moratorium on death penalty." Here are the basic details:

Pope Francis, who has repeatedly called for an end to the death penalty, on Sunday proposed that Catholic leaders suspend the practice for a year to mark the Holy Year of Mercy.

"I make an appeal to the conscience of all rulers, so that we can achieve an international consensus for the abolition of the death penalty," the Pope said in his Sunday address in St. Peter's Square.  "And I propose to those among them who are Catholic to make a courageous and exemplary gesture: that no sentence is executed in this Holy Year of Mercy."

The Pope launched the Jubilee Year of Mercy on December 8.  The church's formal yearlong push for mercy and forgiveness is set to continue through November 20, when the feast of Christ the King will be celebrated.

Francis voiced his support Sunday for an international conference taking place on Monday in Rome called A World Without the Death Penalty, saying he hoped the conference would bring renewed energy to the mission to end capital punishment.  The Pope underlined the possibility of redemption for offenders and a "criminal justice open to the hope of reintegration into society."

"The commandment 'Thou shalt not kill' has absolute value and applies to both the innocent and the guilty," he said on Sunday.

February 21, 2016 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

"Equity, Not Mercy"

The title of this post is the title of this notable paper by Mary Sigler just posted to SSRN. Here is the abstract:

In a variety of criminal justice settings, the term mercy is used broadly to refer to almost any instance of remitting the harshness of punishment.  Although unobjectionable as a colloquial matter, this indiscriminate usage is conceptually problematic.  Mercy understood in this broad sense distorts at least two concepts that are essential to our moral life. Specifically, the broad use of mercy denies us the conceptual resources to assess the distinctive operation of traditional mercy — an act of grace that cancels or mitigates what is due out of compassion or concern for the recipient.  Perhaps more important, broad mercy effectively diminishes the concept of justice, alleviating the pressure it would otherwise exert to redress claims of right.

I first consider the concept of mercy in both its traditional and broad senses.  I then turn to equity as an alternative. Equity, like mercy, operates within the realm of discretion; but unlike mercy, equity aims at justice.  In the legal context, equitable judgment represents a form of guided discretion in which decision making is both searchingly particular and constrained by authoritative standards of justice.  A careful analysis of the concept of discretion underscores both the promise and pitfalls of the discretion with which we empower actors in the criminal justice process. Equity, not mercy, should structure their deliberations.

February 21, 2016 in Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Should (and will) Prez Obama submit his SCOTUS nominee to the Senate this coming week?

In this post last week just hours after the news of Justice Scalia's death, I suggested Prez Obama should waste no time in naming his replacement.  But, in retrospect, I can understand why it might have been disrespectful an unproductive to make a nomination even before proper respects were paid to Justice Scalia and without the Senate even being in session.  But now, Justice Scalia has been rightly honored at the Court (where Prez Obama paid his respects), and the Senate goes back to work this week.  Ergo the question in the title of this post.

Notably, though, the news from inside the Beltway is that Prez Obama may not name a nominee until mid or late March.  This FoxNews piece, headlined "Reid believes Obama to name replacement for Scalia in 'a little over' 3 weeks," suggests that the President has indicated to his top ally in the Senate that a quick pick is not going to be coming.  That suggested timing has me now wondering if Prez Obama is inclined to hold back his pick in order to seek some more significant developments in the race to replace him.  

Especially given last night's primary and caucus election results, I suspect that after Super Tuesday voting on March 1, we may realistically be down to only two candidates on the GOP side and only one candidate on the other side of the aisle.  Moreover, by March 15, a whole bunch of critical swing states will have voted — Colorado and Virginia vote on March 1, Michigan on March 8, and Florida, Illinois, Missouri, North Carlona and Ohio all go on March 15 — and exit polls from all those key states should indicate which candidates are doing better or worse with key voting demographics.  Because it seems inevitable that Obama's nominee and the Senate's response thereto will become a big political issue in general election, I cannot help but speculate that Prez Obama may be eager to take ample time to discover and observe more about the still-emerging shape of these politics before throwing a nominee into it.

Prior related posts on new SCOTUS nominee possibilities:

February 21, 2016 in Who Sentences? | Permalink | Comments (9)