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March 5, 2016

"From Mass Incarceration to Mass Control, and Back Again: How Bipartisan Criminal Justice Reform May Lead to a For-Profit Nightmare"

The title of this post is the title of this notable new and timely article now available via SSRN and authored by Carl Takei.  Here is the abstract:

Since 2010, advocates on the right and left have increasingly allied to denounce mass incarceration and propose serious reductions in the use of prisons.  This alliance serves useful shared purposes, but each side comes to it with distinct and in many ways incompatible long-term interests. I f progressive advocates rely solely on this alliance without aggressively building our own vision of what decarceration should look like, the unintended consequences could be serious.
This Article describes the current mass incarceration paradigm and current left-right reform efforts. It then outlines how, if progressives do not set clear goals for what should replace mass incarceration, these bipartisan efforts risk creating a nightmare scenario of mass control, surveillance, and monitoring of Black and Brown communities.  Finally, the Article explains why this mass control paradigm would lay the groundwork for a heavily-privatized, extraordinarily difficult-to-end resurgence of mass incarceration in subsequent decades.

March 5, 2016 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (7)

March 4, 2016

Post-Hurst hydra takes big bite into some capital cases in Alabama

Download (1)Regularly readers are perhaps now tired of hearing me use the term "post-Hurst hydra" (and what I still think is a cool image) to describe the litigation in various courts in various states as judges sort ought what Supreme Court ruling in Hurst v. Florida must mean for past, present and future capital cases.  But that hydra keep rearing its head, and yesterday it took a big bite in Alabama as reported in this local article

A Jefferson County judge Thursday morning ruled that Alabama's capital murder sentencing scheme, which allows judges to override jury recommendations of life without parole and instead impose the death penalty, is unconstitutional.  In making her ruling after a hearing, Jefferson County Circuit Judge Tracie Todd barred the death penalty in the cases of four men charged in three murders.

"The Alabama capital sentencing scheme fails to provide special procedural safeguards to minimize the obvious influence of partisan politics or the potential for unlawful bias in the judiciary," Todd said in reading her written ruling from the bench.  "As a result, the death penalty in Alabama is being imposed in a "wholly arbitrary and capricious" manner."

The result of Todd's order is that the judge won't allow the death penalty to be imposed in the cases before her.  But attorneys present at the hearing said it would be up to other judges whether to follow her example.  But Todd said her ruling likely will be appealed by prosecutors.  If an appellate court were to uphold her ruling, then it would become a precedent and apply to cases around the state, attorneys said.

"Judge Todd's ruling today is not a general pronouncement for the State of Alabama, but is strictly limited to the four cases upon which she ruled in the Jefferson County Circuit Court," Alabama Attorney General Luther Strange said Thursday afternoon.   "Alabama's capital sentencing statutes are constitutional.  Just yesterday the Alabama Supreme Court denied the appeal of a capital murder defendant who had filed a similar pre-trial motion, and the Court refused to declare Alabama's capital statute's unconstitutional. We are currently reviewing the Judge's written order, and expect to file an appeal.  We fully expect today's ruling by Judge Todd to be reversed."

As this press account of the trial court ruling highlights, the decision by Judge Todd covers a lot more ground than just the application of the SCOTUS Hurst opinion in Alabama.  The opinion is available at this link, and all persons concerned about the death penalty ought to read it in full.  Toward the end of the extended opinion, the judge discusses Hurst and seems to rest her decision in large part on its Sixth Amendment holding. But she also discusses a number of other issues surrounding Alabama's capital sentencing scheme, and it is actually hard for me to assess whether the interplay of concerns discussed in this opinion may make it more or less likely to be reversed on appeal.

March 4, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

"The Absence of Equality and Human Dignity Values Makes American Sentencing Systems Fundamentally Different from Those in Other Western Countries"

The title of this post is the title of this new article now available via SSRN authored by Michael Tonry.  Here is the abstract:

Concern for equality and human dignity is largely absent from American sentencing.  Prison sentences are imposed much more often than in any other Western country and prison terms are incomparably longer.  The greater frequency of imprisonment is a product of punitive attitudes and politicization of crime control policies.  The longer terms result partly from abolition of parole release in every jurisdiction for all or some inmates, but mostly from the proliferation since the mid-1980s of mandatory minimum, three-strikes, life without parole, and truth-in-sentencing laws.

The ideas that offenders should be treated as equals and with concern and respect for their interests largely disappeared, though they had been animating values of earlier indeterminate and determinate sentencing systems.  Their disregard is evident in the nature of contemporary laws but also in low-visibility policies and practices including the near absence of meaningful systems of appellate sentence review, low standards of proof — or none at all — at the sentencing stage, and the absence of policies that limit the weight given to past convictions in the sentencing of new offenses or set standards for sentencing of people convicted of multiple offenses.

March 4, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)

March 3, 2016

Florida legislature completes Hurst "fix" for its capital punishment procedures

As reported in this AP piece, the "Florida Legislature on Thursday sent to Gov. Rick Scott a bill that would require that at least 10 out of 12 jurors recommend execution in order for it be carried out." Here is more:

Florida previously only required that a majority of jurors recommend a death sentence. Scott has not said if he will sign the measure but he has supported Florida's use of the death penalty since he became governor.

The U.S. Supreme Court ruled in January that the current law is unconstitutional because it allows judges to reach a different decision than juries, which have only an advisory role in recommending death.  The state Supreme Court halted two pending executions following the ruling, and court cases across the state had been put on hold.

Legislators were initially divided over whether they should require a unanimous jury recommendation in death penalty cases. Florida is one of only a handful of states that does not require a unanimous decision by the jury . State senators agreed to switch to 10 jurors as part of a compromise with the House, but some legislators have warned that the decision could result in the law being challenged once again.

The bill sent to Scott does not apply to the 389 inmates now sitting on Florida's death row.  The state Supreme Court has been asked to decide whether the U.S. Supreme Court ruling should apply to those already sentenced to death.

It is an absolute certainty, not just a possibility, that Florida's new capital sentencing procedure will be "challenged once again," which is why I put the term "fix" in quotes in the title of this post.  Indeed, given the need now to sort through the impact of Hurst (1) on the "389 inmates now sitting on Florida's death row" and (2) on Florida's (many) pending capital cases based on crimes committed before this new law was passed, and (3) on any future capital cases that apply this new law, I kind of feel bad for all the Floridian capital case prosecutors and defense attorneys who will likely not have much of an opportunity to work on their Florida tans for quite some time.

March 3, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Why I am tempted now to call two federal judges who were formerly federal public defenders "front-runners" for a SCOTUS nomination

In this post two weeks ago, I sort-of started complaining about Prez Obama taking "so long" to name a SCOTUS replacement for the late Justice Antonin Scalia, but then I speculated that the Prez was waiting for some political developments and just the right political moment to name just the right nominee.  In the wake of this week's political events (aka Super Tuesday and its aftermath), and also the big Supreme Court argument about abortion rights (How Appealing coverage here), I think the time is now becoming right for Prez Obama to name one of the two former federal public defenders who are now federal judges that I have previously discussed in this space:  Eighth Circuit Judge Jane Kelly or DC District Judge Ketanji Brown Jackson.

Notably, this new New York Times piece reports that Judge Kelly is being vetted by the White House, and this National Law Journal story from last week reported that Judge Brown Jackson was also being vetted.  Of course, last week around this time we heard from the White House that Nevada Gov Brian Sandoval was being vetted, and that ultimately proved to be something of non-starter (or perhaps even a head-fake).  But this time around, I believe talk of vetting these judges is serious, and I especially think Prez Obama may be strongly drawn to both of these potential nominees because (1) they both served as federal public defenders, and Prez Obama has said he wants criminal justice reform as part of his legacy, and (2) they have both recently received unanimous support during prior confirmation hearings and had a notable GOP leader expressing strong support for them.

Though I know I am biased here because of my interest in criminal justice reform and lots of time spent with public defenders, I read Prez Obama's recent SCOTUSblog posting as something of a signal that he may be interested in appointing someone who had represented the poor or otherwise disadvantaged.  Specifically, Prez Obama said that, in addition to seeking to appoint someone "eminently qualified," he wanted (with my emphasis added):

[S]omeone who recognizes the limits of the judiciary’s role; who understands that a judge’s job is to interpret the law, not make the law.  I seek judges who approach decisions without any particular ideology or agenda, but rather a commitment to impartial justice, a respect for precedent, and a determination to faithfully apply the law to the facts at hand....

[And] the third quality I seek in a judge is a keen understanding that justice is not about abstract legal theory, nor some footnote in a dusty casebook. It’s the kind of life experience earned outside the classroom and the courtroom; experience that suggests he or she views the law not only as an intellectual exercise, but also grasps the way it affects the daily reality of people’s lives in a big, complicated democracy, and in rapidly changing times.  That, I believe, is an essential element for arriving at just decisions and fair outcomes.

Of course, one can readily say that a person with impressive credentials who had once served as a state or federal prosecutor or Justice Department official would have a commitment to impartial justice and a keen understanding that justice is not about abstract legal theory.  But, critically for purposes of my theory that Prez Obama will be drawn to appoint a former federal public defender like Eighth Circuit Judge Jane Kelly or DC District Judge Ketanji Brown Jackson, the last four SCOTUS appointments were all impressively credentialed individuals who had served as a state or federal prosecutor or Justice Department official.  Specifically, Chief Justice Roberts had worked for DOJ, Justice Alito had been US Attorney for New Jersey, Justice Sotomayor was a New York state prosecutor, and Justice Kagan was Solicitor General.  Prez Obama may think, and he certainly could make the case, that SCOTUS now has plenty of Justices who know what it is like to be a "real world" lawyer making arguments on behalf of the government, but it would benefit now from having a "real world" lawyer who worked on behalf of the poorest individuals making arguments against the federal government.

I could go on and on about why I think a (post-Baby Boomer) female nominee would be an especially shrewd choice right now when the Democrats appear poised to nominate the first female candidate for Prez (who is a Baby-Boomer) and the GOP has a whole lot of males of all ages yelling at each other about who is best to "beat" that female candidate.  But what I think make these two Judges especially appealing is the unanimous support they received from the Senate when their prior nominations were considered.  That unanimous support would enable Prez Obama to say forcefully that GOP leaders in the Senate ought to at least have the courtesy to meet with the nominee and hold a hearing as part of their "advise and consent" responsibilities.  I am not confident that GOP leaders will extend that courtesy in this political environment, but the unfairness of being unwilling to do so will be extra stark when they are shutting out someone unanimously approved in the past.

One last self-serving nugget of sentencing fun here: I suspect recent federal public defenders, and perhaps only federal public defenders, could honestly say that a few legendary criminal justice opinions authored by Justice Scalia, opinions like Kyllo v. United States, Crawford v. WashingtonBlakely v. Washington, and Johnson v. United States, are among their all-time favorite.

Thought, dear readers, on my latest SCOTUS musings?

Prior related posts on new SCOTUS nominee possibilities:

March 3, 2016 in Who Sentences? | Permalink | Comments (7)

Indiana county prosecutor seeks re-election by bragging about "proudly over-crowding our prisons"

-radleybalkoflickrAs reported in this Reason blog posting, a local prosecutor in Indiana is pursuing reelection by bragging about being proud to overcrowd the state's prisons. The full headline of the posting, along with the picture, provides the essentials of this notable story: "Indiana Prosecutor Bradley Cooper Is 'Proudly Over-Crowding our Prisons': Cooper's new campaign flyer brags about the people he's put in prison for decades over drug sales and minor theft." Here is more from the blog post about this local prosecutor and his record:

As American conservatives and liberals alike embrace criminal justice reform, those opposed are blatantly bragging about their overcriminalization agendas. One particularly gross example: a new campaign mailer from Johnson County, Indiana, Prosecutor Bradley D. Cooper, which announces that he has been busy "proudly over-crowding our prisons."

The flyer also features mugshots from convicted criminals, along with what they were found guilty of and what prison sentence they were given. It includes a man who was sentenced to 40 years in prison for selling meth, a man convicted of manslaughter who died while in prison, and a man who received a 40-year sentence for burglary.

In the latter case, William A. Russell was arrested after breaking into someone's home and stealing $52. For that offense, he was sentenced to 20 years in prison. A trial court also determined that he was a "habitual offender," which qualified him for a sentencing enhancement of 20 years.

Another of the offenders featured is Amanda Smith, a schizophrenic woman who drowned her son in 2012 while he was on a court-ordered overnight visit from foster care; she claimed it was God's will and turned herself in immediately afterward. Smith's lawyers argued for her to be sent to a state mental hospital, but a judge sentenced her to 55 years in state prison instead.

Last year, Cooper made a fuss that a man accused of forcible rape was only eligible to receive 63 years behind bars, pursuant to a 2014 change to Indiana's criminal code. Previously, the man could have received a maximum sentence of 168 years in prison. Cooper called the sentencing-reform measure the "hug a thug" law and accused the state of coddling violent criminals.

For more about this local prosecutor professional history and accomplishments, his office's website includes this bio and this resume for Bradley D. Cooper. Interestingly, I believe that Prosecutor Bradley attended the same law school as frequent blog commentor federalist, and thus I would be especially eager to hear from federalist (or others) whether they think this kind of campaign slogan is unsavory or perhaps even unethical.

March 3, 2016 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)

Has the federal Adam Walsh Act been a success and should it be reauthorized?

The question in the title of this post is prompted by this recent press release coming from the office of Senator Chuck Grassley, the Chairman of the Senate Judiciary Committee, which is titled "Grassley Introduces Bill to Aid States, Public in Tracking Sex Offenders." Here is how it begins:

Senate Judiciary Committee Chairman Chuck Grassley today introduced legislation to assist states in preventing future abuses by registered sex offenders.  The Adam Walsh Child Protection and Safety Act Reauthorization helps to improve tracking of sex offenders through federal support of state registries and dedicated resources to target offenders who fail to comply with registration requirements.

“Preventing sex crimes, especially by known offenders, requires a team effort by law enforcement at every level. Congress has passed laws to promote a unified approach to sex offender registration and notification.  This bill will help to ensure that our state and local law enforcement officials continue to have the federal resources and assistance they need to successfully track offenders with a history of crimes against children,” Grassley said.

The Adam Walsh Child Protection and Safety Act of 2006 established nationwide notification and registration standards for convicted sex offenders to bolster information sharing between law enforcement agencies and increase public safety through greater awareness.  Grassley’s bill reauthorizes key programs in the 2006 act to help states meet the national standards and locate offenders who fail to properly register or periodically update their information as the law requires.

Specifically, Grassley’s bill reauthorizes the Sex Offender Management Assistance Program, a federal grant program that assists state and local law enforcement agencies in their efforts to improve sex offender registry systems and information sharing capabilities.  The bill also authorizes resources for the U.S. Marshals Service to aid state and local law enforcement in the location and apprehension of sex offenders who fail to comply with registration requirements.

The Adam Walsh Child Protection and Safety Act is named for a six-year-old Florida boy who was kidnapped and murdered in 1981.  Adam’s father, John Walsh, worked closely with Congress to develop the 2006 law and the reauthorization that was introduced today.  Cosponsors of the bill include senators Chuck Schumer (D-N.Y.), Orrin Hatch (R-Utah) and Dianne Feinstein (D-Calif.).

Candidly, I am not entirely sure what would be the best metrics for judging the "success" of the Adam Walsh Act, and perhaps that should be the question in the title of this post. So, dear readers, I would be eager to hear thoughts both on how we ought to assess the success of the AWA and also on whether it ought to be reauthorized.

March 3, 2016 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (14)

"This Morning’s Breakfast, Last Night’s Game: Detecting Extraneous Influences on Judging"

The title of this post is the title of this notable new empirical article on SSRN authred by Daniel Chen, which actually has some encouraging federal sentencing findings. Here is the abstract (with the sentencing story highlighted):

We detect intra-judge variation in judicial decisions driven by factors completely unrelated to the merits of the case, or to any case characteristics for that matter.  Concretely, we show that asylum grant rates in US immigration courts differ by the success of the court city’s NFL team on the night before, and by the city’s weather on the day of, the decision.  Our data including half a million decisions spanning two decades allows us to exclude confounding factors, such as scheduling and seasonal effects.  Most importantly, our design holds the identity of the judge constant.

On average, US immigration judges grant an additional 1.5% of asylum petitions on the day after their city’s NFL team won, relative to days after the team lost.  Bad weather on the day of the decision has approximately the opposite effect. By way of comparison, the average grant rate is 39%.  We do not find comparable effects in sentencing decisions of US district courts, and speculate that this may be due to higher quality of the federal judges, more time for deliberation, or the constraining effect of the federal sentencing guidelines.

March 3, 2016 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (0)

March 2, 2016

Are death penalty advocates troubled by plea deal, presumably urged by families of two slain Viriginia college students, that allows a double murderer to escape any real punishment?

The question in the title of this post is my reaction to this news story about an expected plea deal which seem to allow a high-profile double-murderer in Virginia to, in essence, avoid suffering any real punishment for murdering two college students.  The article is headlined "Report: Matthew to be spared death penalty in Va. student murders," and here are the details (with my emphasis added):

Two remarkably similar murder cases that amplified concerns about campus safety are expected to end when a Virginia man enters a plea deal that will spare him a possible death sentence. Jesse LeRoy Matthew Jr., 34, is expected to enter pleas resolving the Hannah Graham and Morgan Harrington cases Wednesday, according to Albemarle County Commonwealth's Attorney Robert N. Tracci. The prosecutor did not disclose the terms of the plea agreement ahead of the hearing.

Sources told CBS affiliate WTVR Matthew is expected to plead guilty to first-degree murder and intent to defile in both cases.  WTVR reporter Laura French reports via Twitter that Matthew is expected to serve four life sentences with no eligibility for parole. The deal will spare him the death penalty, sources told the station.

The former hospital orderly and cab driver is charged with capital murder in the September 2014 death of 18-year-old University of Virginia student Graham. He also faces a first-degree murder charge in the 2009 death of Harrington, a 20-year-old Virginia Tech student.  He already is serving three life prison terms for a sexual assault in northern Virginia.

According to authorities, Graham and Harrington were young women in vulnerable straits when they vanished in Charlottesville five years apart...

Graham's disappearance, which came at a time of rising national concern about sexual assaults and other crimes on college campuses, prompted a massive search.  Her body was found five weeks later on abandoned property in Albemarle County, about 12 miles from the Charlottesville campus and 6 miles from a hayfield where Harrington's remains had been found in January 2010.

After police named Matthew a person of interest in Graham's disappearance, he fled and was later apprehended on a beach in southeast Texas.  He was charged with abduction with intent to defile, a felony that empowered police to swab his cheek for a DNA sample.  That sample connected Matthew to the 2005 sexual assault in Fairfax, a Virginia suburb of Washington, according to authorities.  The DNA evidence in the Fairfax sexual assault, in turn, linked Matthew to the Harrington case, authorities have said.

The charge against Matthew in the Graham case was later upgraded to capital murder, giving prosecutors the option to seek the death penalty.

Both the Harrington and the Graham families are supportive of the deal, WTVR reports.  Both families requested to give victim impact statements at the Wednesday afternoon hearing.

When I first saw the headline of this local story, I was puzzled by the willingness of Virginia prosecutors to let a defendant who is already serving multiple life sentences for other crimes now avoid any capital prosecution for two horrific murders. But, after reading that "the Harrington and the Graham families are supportive of the deal," I presume that these families strongly urged the prosecutors to take this kind of deal in order to conclude legal proceedings quickly and to allow them to get a measure of closure.

Assuming I am right that this plea deal is at the behest of the families of the victims, I am genuinely interested to hear from death penalty advocates about whether they think this outcome is ultimately a serious injustice. I surmise that some (many? most?) death penalty advocates think it is an injustice anytime a first-degree murderer escapes a capital prosecution and possible execution. In this case, given that the double-murderer is already serving life sentences for other crimes, this plea deal to additional life sentences means, functionally, Matthew is going to receive no real punishment at all for murdering Graham and Harrington.

Because I am a something of a death penalty agnostic, and especially because I am a strong supporter of taking very seriously the sentencing interests of crime victims in all cases, I really am not sure how I feel about this outcome.  But I am sure I would like to hear the opinions of others, especially those who genuinely believe, as did Immanuel Kant, that the "satisfaction of justice" demands the execution of certain killers.

March 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (29)

Mark Holden, GC at Koch Industries, makes "The Factual Case for Criminal Justice Reform"

As regular readers know, various groups and persons associated with the wealthy and politically active Koch brothers have been very supportive of state and federal sentencing reform efforts. Continuing in that tradition, Mark Holden, who is senior vice president and general counsel at Koch Industries, Inc., has authored this new Medium commentary titled "The Factual Case for Criminal Justice Reform."  I recommend the piece is full (with all its links), and here are excerpts:

These days, it’s hard to find legislation in Washington, D.C. that has bipartisan support. It’s even harder to find legislation that will help people improve their lives instead of making their lives worse.

Yet that’s exactly what both houses of Congress are currently doing through criminal justice reform legislation.  The Senate is considering the Sentencing Reform and Corrections Act.  It contains a series of long overdue reforms that have been tried at the state level and have been proven to reduce crime, lower spending on incarceration, reduce incarceration rates, and give people a better chance at leading a productive and fulfilling life once they’re released from prison.

There’s little doubt that the current system is dysfunctional.  American criminal justice is too often inconsistent with the promises of the Bill of Rights.  We have a two-tiered system, with the wealthy and the well-connected experiencing a much better system than the poor, oftentimes regardless of guilt or innocence.  A growing number of Americans recognize this  —  nearly 80 percent of the country supports reform.  So do many prosecutors and judges.  For example, liberal federal Judge Rakoff of the Southern District of New York and conservative Judge Kozinski of the Ninth Circuit Court of Appeals have raised awareness that innocent people are pleading guilty to crimes they didn’t commit because they cannot effectively defend themselves against the power of the government.  That is why calls for reform are growing so loud from both ends of the political spectrum that Congress can no longer ignore these problems, which have festered for more than three decades.

The numbers speak for themselves. Over the past decades more and more Americans are put behind bars, sometimes for crimes they didn’t commit or with punishments that are not consistent with the crime. The result has been a skyrocketing prison population that ruins lives and wastes money. At the federal level alone, the number of prisoners has increased by 795 percent in the past 35 years. Federal and state spending on prisons also increased over this timeframe to $8 billion annually, which is 3 to 4 times more per capita than we spend on education. America is now the world’s largest jailer, with only 5 percent of the world’s population but a whopping 25 percent of the world’s prisoners. And there are as many Americans with a college degree as there are Americans with a criminal record.

As more people get caught in this system, it breaks apart families, destabilizes communities, increases poverty, and makes it harder — if not impossible — for people to rejoin society after they’ve served their sentence. Why? Because criminal convictions are accompanied by countless collateral consequences that burden people for the rest of their lives.

Unfortunately, not everyone recognizes the need for reform. As demand for reform grows louder, the defenders of the status quo are mobilizing. Their argument is simple: Reforming the criminal justice system will endanger society and put people’s lives at risk. But these claims have no basis in reality. In fact, the Sentencing Reform and Corrections Act will have the opposite effect.

Many of its most important provisions are modeled after successful reforms from states such as Georgia, Utah, Kentucky, and Texas. In the past decade, more than half of states have passed a variety of changes to their criminal justice systems. Some lowered mandatory minimums  —  non-negotiable sentences that can run into the decades  —  for low-level offenders.  Others gave judges greater discretion in sentencing. And still more tried a variety of other worthwhile reforms, including prison reform and expungement of past criminal records so worthy individuals seeking redemption could put their past mistakes behind them and have a fresh start when leaving prison.

The results speak for themselves.  While the federal imprisonment rate increased by 15 percent over the last decade, the state rate fell by 4 percent.  This didn’t lead to an increase in crime, either.  No less than 32 states saw drops in both the percentage of people imprisoned and the overall crime rate.  Put another way: Criminal justice reform made society safer.

We need federal reforms along the same lines. That’s what the Sentencing Reform and Corrections Act would do, which is why it has broad support from law enforcement.  It contains a variety of reforms that would enhance public safety and make the criminal justice system more fair and humane....

Will lawmakers seize this opportunity to make people’s lives better, or will they fall prey to fear-mongering?  For the sake of the least fortunate in society, I certainly hope they make the right choice.

Some prior related posts on Koch family efforts in support of criminal justice reform:

March 2, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

"One Size Does Not Fit All: The Need for a Complete Abolition of Mandatory Minimum Sentences for Juveniles in Response to Roper, Graham, and Miller"

The title of this post is the title of this article authored by Lindsey Krause now available via SSRN. Here is the abstract:

Juvenile sentencing practices in the United States have seen an enormous amount of reform in the past decade. Three United States Supreme Court cases created the foundation for such reform: Miller v. Alabama, Graham v. Florida, and Roper v. Simmons.  Each of these cases recognizes that youth in the criminal justice system are different from adults and should be treated as such.

Mandatory minimum sentences prevent courts from following the promises of Roper, Graham, and Miller.  The mitigating factor of youth cannot be considered if a judge is given no discretion where a mandatory minimum sentence exists.  This article analyzes recent jurisprudence in Iowa, completely abolishing mandatory minimum sentences for youth under the age of 18 and advocates for the remainder of the nation to follow in the state's footsteps.

March 2, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)

Updating Delaware's struggles with the post-Hurst hydra

Download (1)As regular readers know, in this post not long after the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe what I expected to be multi-headed, snake-like litigation developing in various courts as judges sort ought what Hurst must mean for past, present and future capital cases.  And in this post about a month ago, I reported on the notable decision in Delaware to put all pending capital murder trials and executions on hold until the state Supreme Court resolved the constitutionality of the state's death penalty law in the wake of Hurst.  

Now, thanks to this local article headlined "Public defenders: Death penalty unconstitutional," we can all read about the arguments from Delaware capital defense attorneys that the post-Hurst hydra must devour the state's existing capital sentencing scheme. Here are the basics from this press account:

Three assistant public defenders have argued to the Delaware Supreme Court that the death penalty law is unconstitutional -- and therefore needs to be fixed by lawmakers.  The attorneys from the Office of Defense Services filed a written argument Monday explaining why they believe Delaware's capital punishment policy violates the U.S. Constitution, especially in light of a recent U.S. Supreme Court decision that deemed Florida's similar scheme unconstitutional.

"The Delaware statute contains a number of unconstitutional provisions that cannot be exercised by this court in an effort to salvage the statute," the 58-page argument said.  "Because these multiple constitutional problems require Delaware’s death penalty scheme to be substantially restructured, that task is for the legislature, not the courts."...

Attorneys from the Office of Defense Services said in their argument that it is "crystal-clear that the judge is the independent and paramount capital sentencer" in Delaware.  They went on to argue that Delaware is violating the Sixth Amendment by requiring a judge to make findings regarding aggravating and mitigating circumstances, and their relative weight, before a death sentence can be imposed.

"As the opinion in Hurst makes clear, any fact-finding that is a necessary precursor to a death sentence, rather than one of imprisonment, must be performed by a jury," the argument said.  "The highest courts and legislatures of several states have likewise acknowledged that the Supreme Court’s Sixth Amendment jurisprudence requires the jury to determine the presence of aggravating and mitigating circumstances, as well as the weight of each."

The attorneys went on to say that the practice of allowing juries to be non-unanimous is also unconstitutional.  "There is a nationwide consensus against non-unanimous jury verdicts in capital cases," the attorneys wrote.  "No existing state statute currently permits a non-unanimous determination of aggravating factors, and only two, in Alabama and Delaware, permit a jury’s sentencing determination to be less than unanimous.  That only two states permit non-unanimous jury verdicts in capital cases weighs heavily against its constitutionality."

The full brief referenced above can be accessed at this link.

Prior related post:

March 2, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (0)

March 1, 2016

Has DOJ decided not to appeal Judge Weinstein's recent notable decision in US v. RV to give no prison time to child porn downloaded?

The question in the title of this post is a follow-up to my speculations here about the post-Booker challenges that face federal prosecutors when a district judge gives a very leinent sentence that they dislike.  Specifically, after blogging about US District Judge Jack Weinstein's decision in US v. RV to give a waaaaaaaay-below-guideline sentence in a child porn downloading case, I suggested the Justice Department would struggle with the decision whether to appeal this lenient sentencing ruling to the Second Circuit because of the Second Cicuit's significant 2010 Dorvee ruling which stressed the "irrationality" of the child porn guidelines.

When I posted about US v. RV, my pal Bill Otis seemed to think my appellate speculations here were waaaaaaaay off the mark.  Over in this lengthy post at Crime & Consequences, Bill Otis asserted that my speculation revealed that I know "almost nothing about the workings of US Attorneys' Offices."   Bill went further even in this post, stating repeatedly that he would eagerly "bet $500 here and now that Weirstein [sic] is again going to get reversed in the Second Circuit, again without garnering a single vote."

I did not take up Bill's bet for a number of reasons: (1) I wanted to read Judge Weinstein's 90+ page sentencing opinion in full before speculating on the fate of the decision in RV, (2) based on what Judge Weinstein wrote, I might be inclined to participate in an amicus effort in the Second Circuit if/when DOJ appealed, and (3) I find it a bit unsavory (and perhaps unethical) to make big cash bets on the fate of a real legal case, especially in an area of law I hope to infuence.  But now, as the title of this post hints, I think it may turn out that a lot of us should have taken Bill's bet because it seems, based on my limited research skills, that DOJ has decided not to appeal Judge Weinstein's sentencing decision in RV.

Because I am bad at researching appellate dockets, and also because the process for when and how the Justice Department makes appellate decisions is quite opaque in various ways, I do not yet want to crow about being right here that DOJ did not want to appeal this decision and risk its affirmance by the Second Circuit.  But I am hoping, perhaps with the help of readers, I can soon confirm that the Second Circuit will not be reversing RV because federal prosecutors have decided not to appeal the decision. (Needless to say, I am somewhat excited about the possibility of demonstrating that I now actually do know a lot more than Bill Otis "about the workings of US Attorneys' Offices" even though I have never worked in such an office and Bill spent most of his professional life in these offices.)  If it does turn out true that DOJ has decided not to appeal in US v. RV, I think this discretionary prosecutorial decision is itself a very interesting and important bit of evidence concerning how post-Booker reasonableness review works (and doesn't work) to iron out sentencing disparties in CP downloading cases and many others.

Prior related posts about recent notable CP cases from the EDNY:

March 1, 2016 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

Via 6-2 vote, SCOTUS upholds broader interpretation of child-porn mandatory minimum provision

The first official SCOTUS opinion handed down without Justice Scalia as a member of the Supreme Court in three decades just happened to be an intriguing little sentencing opinion: Lockhart v. US, No. 14-8358 (S. Ct. March 1, 2016) (available here). Justice Sotomayor wrote the opinion for the Court on behalf of six Justices, and it begins this way:

Defendants convicted of possessing child pornography in violation of 18 U. S. C. §2252(a)(4) are subject to a 10-year mandatory minimum sentence and an increased maximum sentence if they have “a prior conviction . . . under the laws of any State relating to aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” §2252(b)(2).

The question before us is whether the phrase “involving a minor or ward” modifies all items in the list of predicate crimes (“aggravated sexual abuse,” “sexual abuse,” and “abusive sexual conduct”) or only the one item that immediately precedes it (“abusive sexual conduct”).  Below, the Court of Appeals for the Second Circuit joined several other Courts of Appeals in holding that it modifies only “abusive sexual conduct.”  The Eighth Circuit has reached the contrary result.  We granted certiorari to resolve that split.  575 U. S. ___ (2015).  We affirm the Second Circuit’s holding that the phrase “involving a minor or ward” in §2252(b)(2) modifies only “abusive sexual conduct.”

Justice Kagan, joined by Justice Breyer, writes an extended dissent that kicks off with pop-culture references sure to be highlighted by many in social media:

Imagine a friend told you that she hoped to meet “an actor, director, or producer involved with the new Star Wars movie.” You would know immediately that she wanted to meet an actor from the Star Wars cast — not an actor in, for example, the latest Zoolander.  Suppose a real estate agent promised to find a client “a house, condo, or apartment in New York.”  Wouldn’t the potential buyer be annoyed if the agent sent him information about condos in Maryland or California?  And consider a law imposing a penalty for the “violation of any statute, rule, or regulation relating to insider trading.”  Surely a person would have cause to protest if punished under that provision for violating a traffic statute.  The reason in all three cases is the same: Everyone understands that the modifying phrase — “involved with the new Star Wars movie,” “in New York,” “relating to insider trading” — applies to each term in the preceding list, not just the last.

That ordinary understanding of how English works, in speech and writing alike, should decide this case.  Avondale Lockhart is subject to a 10-year mandatory minimum sentence for possessing child pornography if, but only if, he has a prior state-law conviction for “aggravated sexual abuse, sexual abuse, or abusive sexual conduct involving a minor or ward.” 18 U. S. C. §2252(b)(2).  The Court today, relying on what is called the “rule of the last antecedent,” reads the phrase “involving a minor or ward” as modifying only the final term in that three-item list.  But properly read, the modifier applies to each of the terms — just as in the examples above.  That normal construction finds support in uncommonly clear-cut legislative history, which states in so many words that the three predicate crimes all involve abuse of children.  And if any doubt remained, the rule of lenity would command the same result: Lockhart’s prior conviction for sexual abuse of an adult does not trigger §2252(b)(2)’s mandatory minimum penalty.  I respectfully dissent.

I am going to resist the urge to speculate concerning which opinion Justice Scalia might have been likely to join were he still alive today, especially given that the late, great Justice was a fan of ordinary understanding and the rule of lenity, but not a fan of legislative history, in the interpretation of federal criminal statute.  I am also going to resist blogging a lot more about this case unless something jumps out as distinctly blogworthy when I have a chance to review the opinions more closely in the days ahead.

March 1, 2016 in Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (12)

Former AG Mukasey delivers "clear" message to GOP on SRCA: "Law enforcement asks you to pass this bill."

The Hill has now published this notable new op-ed authored by Michael Mukasey and Ronal Serpas under the headline "Federal sentencing reform will aid law enforcement." Here are excerpts:

The Senate is back in session amid recent warnings from Sens. Ted Cruz (R-Texas), Tom Cotton (R-Ark.) and Jeff Sessions (R-Ala.) that federal sentencing reform would jeopardize public safety. They say the country cannot risk reform.

As a former attorney general under President George W. Bush who has overseen thousands of prosecutions, and a police chief with three decades of experience, we have dedicated our lives to the safety of this country.

We can firmly say that sentencing reform done right will not harm public safety. In fact, it will enhance it. We were some of the original supporters of the 1990s “tough on crime” laws. After decades of enforcing them, we and our colleagues — police chiefs and U.S. attorneys — now recognize many provisions, like overly harsh sentencing, went too far.

Much has been learned in the last 25 years about who should be locked up and for how long. The Sentencing Reform and Corrections Act recalibrates sentencing policy to meet the needs of the 21st century. Lowering mandatory minimum sentences for low-level crimes will reduce unnecessary incarceration. This will allow us to better direct law enforcement resources to arresting, prosecuting, and punishing the most serious and violent criminals.

That’s why we and 130 of our law enforcement colleagues wrote to congressional leadership urging them to pass the act. Those standing with us include two former U.S. attorneys general, two directors of the FBI, 21 sitting police chiefs and 68 former U.S. attorneys.

Our message to Republican leadership is clear: Law enforcement asks you to pass this bill. Targeted and appropriate sentencing is a superior approach to controlling crime....

The Sentencing Reform and Corrections Act offers a better path forward. It would reduce mandatory minimum sentences for repeat nonviolent drug offenders. And it would allow judges more discretion to depart from mandatory minimums for low-level offenders if — after hearing specific circumstances of the crime — they feel it is appropriate.

Contrary to what opponents have claimed, the Sentencing Reform and Corrections Act will not swing open the prison doors and release thousands of hardcore violent criminals onto the streets. Every single prisoner eligible for early release will be carefully scrutinized by judges. And only if the judges feel it’s appropriate will they release them. This judicial check ensures the worst criminals will remain where they belong — in prison — while those who pose little threat can get off the taxpayers’ tab and begin productively contributing to society.

The bill would also expand the use of mandatory minimums for offenders with previous convictions for violent crimes, and it creates new mandatory minimums for terrorism-related crimes, giving federal law enforcement additional mechanisms to keep those most dangerous behind bars.

Now is the time for Congress to act. Reducing the population of our overcrowded prisons is one of the few goals on which those on the left and right agree. We want to make it clear where law enforcement stands: Not only is passing federal legislation to reform mandatory minimum sentences necessary to reduce incarceration, it will also help us keep crime at its historic low.

Some recent prior related posts on SRCA:

March 1, 2016 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

February 29, 2016

SCOTUS appears troubled by state judge's failure to recuse in capital case after past history as prosecutor in case

This AP report, headlined "Justices hear judicial-bias claim in death-row case," reports on today's SCOTUS oral argument in the Williams case involving Eighth Amendment and Due Process claims arising from a jurist's failure to recuse himself in a Pennsylvania capital case.  Here are the basics:

The Supreme Court on Monday appeared likely to rule that a Philadelphia district attorney-turned-state high court judge should not have taken part in the case of a prison inmate whose death-penalty prosecution he had personally approved nearly 30 years earlier.

The justices indicated that inmate Terrance "Terry" Williams should get a new hearing in Pennsylvania's Supreme Court because then-Chief Justice Ronald Castille voted to reinstate Williams' death sentence in 2014. A lower court judge had thrown out the sentence because prosecutors working for Castille had hidden evidence that might have helped the defense in Williams' 1986 murder trial.

Justice Sonia Sotomayor was among several justices who focused on Castille's actions in 1986, when he was the Philadelphia district attorney. "The judge here actually signed his name to the review of the facts and the decision to seek the death penalty," Sotomayor said.

When Philadelphia Deputy District Attorney Ronald Eisenberg told the justices that the passage of time had lessened concerns about bias, Justice Anthony Kennedy was almost incredulous. "So the fact that he spent 30 years in solitary confinement actually helps the state?" Kennedy said.

The conditions of Williams' confinement could be an issue in the outcome of his case.  Pennsylvania has not executed anyone since 1999, and Gov. Tom Wolf has declared a moratorium on executions.  But even if the chance of Williams' being put to death is small, he continues to be held in isolation along with other death row inmates in Pennsylvania.  The court also confronted whether Castille's participation in the case made a difference on a court that ruled unanimously against Williams.

The full SCOUS oral transcript in Williams v. Pennsylvania is now  available at this link.  As always, I would be grateful for help from readers to identify any especially noteworthy (i.e., blog-worthy) interchanges from the argument.

February 29, 2016 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

"Can you think of another constitutional right that can be suspended based upon a misdemeanor violation of a State law?"

The question in the title of this post is the question I have been asking again and again since the US Supreme Court decided in Heller and McDonald that the Second Amendment secured an individual right to keep and bare arms that was to be enforced in a manner comparable to other rights enumerated in the Bill of Rights. It also happened to be the question that Justice Clarence Thomas asked the federal government during oral argument today in Voisine v. United States

As highlighted by a whole bunch of press coverage spotlighted here at How Appealing, it is notable simply that Justice Thomas spoke up at oral argument after having been silent in that setting for a decade.  But I trust regular readers will not be surprised to hear that I am excited that Justice Thomas decided he had to speak up to ask what I think is the very hard question about the meaning and reach of the Second Amendment that lacks a very good answer if Heller and McDonald are serious about the need to treat the Second Amendment seriously like all other rights enumerated in the US Constitution's Bill of Rights.

Not only did Justice Thomas ask this important question toward the tail end of oral argument in Voisine, he followed up with a First Amendment analogy that I find pretty compelling:

JUSTICE THOMAS:  [L]et's say that a publisher is reckless about the use of children, and what could be considered indecent [placement in an ad] and that that triggers a violation of, say, a hypothetical law against the use of children in these ads, and let's say it's a misdemeanor violation.  Could you suspend that publisher's right to ever publish again?

MS. EISENSTEIN: Your Honor, I don't think you could suspend the right to ever publish again, but I think that you could limit, for example, the manner and means by which publisher...

JUSTICE THOMAS: So how is that different from suspending your Second Amendment right?

Critically, even though I do not believe the government here had any satisfactory answers for Justice Thomas's tough Second Amendment questions, the Justice was not even making his arguments as forcefully as he could have in the context of the federal criminal prosecution at issue in Voisine.  Critically, Voisine is not a case in which someone previously convicted of a state "reckless" misdemeanor is now seeking a legal declaration that he has Second Amendment rights.  Rather, Stephen Voisine is a schnook who was subject to a federal felony prosecution (and as much as 10 years in federal prison) simply for possessing a rifle (while apparently hunting a bald eagle!?!?) because a number of years earlier he pleaded guilty to a Maine domestic violence misdemeanor. 

For the record, I am not a big fan of Maine schnooks who in the past were involved in a domestic incident and years later go out hunting bald eagles.  But I am even less of a fan of the creation of new jurisprudential doctrines that would allow the federal government to bring a felony prosecution of an individual engaged in what might be otherwise constitutionally protected activity simply based on a long-ago misdemeanor violation of a State law.  That is the reality of what is going on in Voisine, and even folks not supportive of Second Amendment rights should be concerned that a case like Voisine could end up casting poor light on other constitutional protections if his conviction gets upheld in this case.

Some prior related posts:

February 29, 2016 in Gun policy and sentencing, Offense Characteristics, Second Amendment issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Highlighting the enduring lack of transparency about pleas and the work of prosecutors ... and the problems this may create

The folks at The Crime Report continue to do a lot of notable reporting about a lot of the notable issues discussed at the recent Harry Frank Guggenheim Symposium on Crime in America at John Jay College of Criminal Justice.  This recent piece, headlined "A 'Draconian' System Where the Innocent Plead Guilty," reports on a keynote speech by Judge Jed Rakoff and discussion of the need to bring more light to the dark spaces of plea bargaining and prosecutorial practices. I recommend the piece in full, and here are some excerpts:

The U.S. criminal justice system is broken and needs to be fixed is a message you rarely hear from a well-respected senior federal judge. But that’s exactly what Judge Jed Rakoff of the Southern District of New York detailed during a keynote address at the 11th Annual Harry Frank Guggenheim Symposium on Crime in America at John Jay College of Criminal Justice on Friday

“We created this monster and it’s taken on a life of its own,” said Rakoff, speaking critically of judges who everyday impose “terrible sentences” and send people to prison for extremely long periods of time without questioning the system....

Rakoff detailed how he’s seen the system change in the past few decades, from a time where a much higher percentage of court cases went to trial (15 percent of court cases at the federal level 20 percent at the state level) to now where, after tough-on-crime laws swept the nation, only 3 percent of federal cases, and 5 to 6 percent of state cases, go to trial.  The rest are settled with plea bargains.  He called the plea bargaining process a “system of totally secret justice” where prosecutors, hold all the cards and are able to get a vast majority of defendants to plead guilty to charges when faced with extremely long sentences — imposed through sentencing guidelines or mandatory minimums.

Julie Seaman, a professor at the Emory University School of Law and Board President of the Georgia Innocence Project, said it’s now a system where “it’s completely rational for an innocent person to plead guilty,” because there is so much risk involved in going to trial.

The panel — also featuring Keir Bradford-Gray of the Philadelphia Defender Association, Matthew Johnson of John Jay College, exoneree Rodney Roberts and moderated by John Hollway, executive director of the Quattrone Center for the Fair Administration of Justice at the University of Pennsylvania Law School — detailed problems of this “assembly-line” style form of justice where police are under pressure to solve cases quickly, prosecutors are under pressure to clear cases and public defenders are overworked and under resourced.

And it’s all done behind closed doors, they say, away from public scrutiny.  “This is a system, because it’s so totally un-transparent, is it inevitably going to lead to some serious mistakes,” Rakoff said.

There has arguably never been more data and more transparency in the U.S. criminal justice system than there is now.  Researchers, journalists, politicians and the public have more access to data on prison and jail populations, as well as crime statistics including the number of reported crimes and arrests.  That data has played a large part in changing peoples’ minds about mass incarceration — and arguably without that data, you wouldn’t see elected officials of both parties rolling back sentencing laws. But data doesn’t exist for plea deals, which is where the decisions that dramatically impact millions of lives are made.  There is a plethora of information available to the public on how offenders enter the system and where they end up, but missing is information on what happens in the middle.

Rakoff says this is a problem that has fueled mass incarceration – and also because when innocent people decide to plead guilty in order to avoid long sentences, we never know the truth. He said there is too much disparity in pleas that are offered and we don’t know enough about what goes on behind closed doors. “No one ever knows what the truth is, no one ever knows what the facts are,” Rakoff said.

February 29, 2016 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (3)

Iran reportedly wages the "war on drugs" by executing the "entire adult male population" of a village!?!?!

There is much talk in the United States about causalities of all sorts from the tough ways in which US governments use criminal justice powers of all sorts to wage a "war on drugs."  But this FoxNews article reports on Iran waging the war with a whole new type of extreme powers.  The piece is headlined "Iran reportedly executes every adult man in one village for drug crimes," and here are the stunning details:

The entire adult male population of a village in southern Iran was executed for drug offenses last week as part of a country-wide crackdown on trafficking, state media report. Iran’s vice-president for women and family affairs, Shahindokht Molaverdi, revealed the news in an interview with the Mehr News agency last week, but did not say when or where the executions took place, or how many people were killed.

“We have a village in Sistan and Baluchestan province where every single man has been executed,” she said, according to The Guardian.  “Their children are potential drug traffickers as they would want to seek revenge and provide money for their families.  There is no support for these people.”

Molaverdi said President Hassan Rouhani’s government has brought back previously-axed family support programs.  “We believe that if we do not support these people, they will be prone to crime, that’s why the society is responsible for the families of those executed,” she said.

Human rights groups denounced the executions.  “The apparent hanging of every man in one Iranian village demonstrates the astonishing scale of Iran’s execution spree,” Maya Foa, from the anti-death penalty group Reprieve, told The Guardian.  “These executions — often based on juvenile arrests, torture, and unfair or nonexistent trials — show total contempt for the rule of law, and it is shameful that the UN and its funders are supporting the police forces responsible.”...

The Islamic Republic hanged 753 people in 2014, more than half of whom were convicted of drug-related offenses, the group said. In 2015, nearly 700 people were executed in Iran in the first half of the year alone, it added. The mass executions have led activists to call on the U.N. Office on Drugs and Crime to stop funding the Iranian government’s anti-narcotics campaign until Tehran ends the use of capital punishment for such offenses, The Guardian reports.

Candidly, I have a hard time wrapping my head around the notion that the Iranian government, in order to try to stop drug trafficking in the name of helping "women and family affairs," would execute the entire adult male population of a village in southern Iran (and then, apparently, will provide government support for the families of those executed). But, absent further reports that this story is inaccurate, I have to conclude that Iran believes no punishment is off-the-table and unjustified when trying to combat the scourge that is drug use and abuse.

February 29, 2016 in Death Penalty Reforms, Drug Offense Sentencing, Sentencing around the world, Who Sentences? | Permalink | Comments (6)

SCOTUS taking on array of criminal justice cases this week in which Justice Scalia's absence will again be consequential

The Supreme Court this week hears oral argument in a trio of criminal justice cases this week.  Because all three cases strike me as involving relatively quirky/narrow issues, I am not expecting to get any blockbuster rulings from any of them (especially with a now short-staffed Court).  Via SCOTUSblog, here are links to the cases being heard today and tomorrow with the question presented:

Voisine v. United States (1) Whether a misdemeanor crime with the mens rea of recklessness qualifies as a "misdemeanor crime of domestic violence" as defined by 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9); and (2) whether 18 U.S.C. §§ 921(a)(33)(A) and 922(g)(9) are unconstitutional under the Second, Fifth, and Sixth Amendments and the Ex Post Facto Clause of the United States Constitution.

Williams v. Pennsylvania: (1) Whether the Eighth and Fourteenth Amendments are violated where a state supreme court justice declines to recuse himself in a capital case in which he had personally approved the decision to pursue capital punishment against the defendant in his prior capacity as an elected prosecutor and continued to head the prosecutors’ office that defended the death verdict on appeal, and where he had publicly expressed strong support for capital punishment during his judicial election campaign by referencing the number of defendants he had “sent” to death row, including the defendant in the case now before the court; and (2) whether the Eighth and Fourteenth Amendments are violated by the participation of a potentially biased jurist on a multimember tribunal deciding a capital case, regardless of whether his vote is ultimately decisive.

Nichols v. United States: (1) Whether 42 U.S.C. § 16913(a) requires a sex offender who resides in a foreign country to update his registration in the jurisdiction where he formerly resided, a question that divides the courts of appeals.

Because Williams involves an Eighth Amendment case and involves the death penalty, I suspect it will get the most press attention and probably even most of my attention after today's oral argument. But, in part because Williams involves an Eighth Amendment case and involves the death penalty, I am already pretty confident which Justices are likely to be more or less sympathetic to the capital defendant's claims on appeal.

In contrast, both Voisine and Nichols involve questions of statutory interpretation of federal crime statutes in politically fraught settings: Voisine involves the mix of domestic violence and guns, Nichols involves the tracking of sex offenders abroad. Both the specific legal issue before the Court and the context in which it arises makes me uncertain how various justices are likely to approach the cases at oral argument and in an eventual ruling. In both cases, though, the defense side likely is quite sorry to see Justice Scalia's chair empty because he was among the most consistent and forceful voices for the rule of lenity and other principles to limit the reach of government powers in the interpretation of federal criminal justice statutes.

February 29, 2016 in Death Penalty Reforms, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

No new cert grants from short-handed SCOTUS and a notable dissent in one prisoner case

The Supreme Court this morning issued its first big orders list since the passing of Justice Scalia, which is available at this link, and perhaps unsurprisingly the Justices decided not to grant review in any new cases.  For any number of reasons, I think it wise and shrewd for the Supreme Court to keep its docket relatively light while it is so divided and short-staffed, especially given that there would seem to be a real possibility that Senate hearings for a possible Justice Scalia replacement may not take place for another year.  Especially given the many high-profile cases already before a Court now perhaps facing a good number of 4-4 tie votes, I would be surprised to see more than a handful of new grants in major cases anytime soon.

On the subject of being surprised, I was taken aback a bit to see the order list included this lengthy dissent from the denial of certiorari authored by Justice Alito in the prisoner case of Ben-Levi v. Brown, No. 14-10186.   The surprise comes from the fact that Justice Alito, who is usually the most consistent vote against criminal defendants, in this dissent complains about the Supreme Court's failure to take up the case of a pro se prisoner.  But the very start and very end of the lengthy dissent highlights the unique issue that in this case engendered Justice Alito's concerns:

Petitioner Israel Ben-Levi, a North Carolina inmate, filed a pro se petition challenging a prison policy that prevented him and other Jewish inmates from praying and studying the Torah together.  The North Carolina Department of Public Safety (NCDPS) imposed stringent restrictions on Jewish group meetings that it did not apply to other religious groups.  Because Ben-Levi has provided ample evidence that these restrictions substantially burdened his religious exercise, and because respondent has not identified a legitimate penological interest in treating Jewish inmates more strictly than inmates of other religions, I would grant Ben-Levi’s petition for certiorari and summarily reverse the judgment below....

Needless to say, the Court’s refusal to grant review in this case does not signify approval of the decision below. But the Court’s indifference to this discriminatory infringement of religious liberty is disappointing.

February 29, 2016 in Prisons and prisoners, Religion, Who Sentences? | Permalink | Comments (1)

February 28, 2016

"With Marijuana Legal, Why Are People Still Doing Life For Weed?"

Thie question in the title of this post is the headline of this article from The Kind (as well as a question that really does not have a satsfactory answer).  Here are excerpts: 

At least 30 people are currently serving life without parole for non-violent marijuana-related offenses. Save extraordinary events, they will die in prison. Overturning a law does not exonerate the people who were convicted of breaking the law when it was in effect. This means that even if marijuana is legalized tomorrow, those serving time for marijuana-related offenses will not be released.

“Most people don’t believe it,” says Beth Curtis, founder of Life for Pot, an organization that spotlights people who are serving life without parole for non-violent marijuana-only offenses.

One person who is scheduled to remain in jail until they die is Curtis’s brother, John Knock. “Twenty years ago I received a phone call informing me that my youngest brother had been indicted for a marijuana conspiracy in Florida,” Curtis explains on her site. “Our lives have never been the same.”...

 In 2008 she launched LifeForPot.com, which currently features 30 or so inmates with life or de facto life sentences (e.g., someone who is 50 years old and gets 50 years). Most of Curtis’s advocacy takes place offline, primarily through writing and sending information about individuals to congress, congressmen, and various groups that might take up the cause. “Actually a lot of people have,” she says. “Now when you Google ‘life for pot’, lots of stuff comes up. When I first started, it was just my site.”...

Without retroactive legislation, inmates serving life without parole for weed can only be released through clemency, in the form of a pardon or sentence commutation from the president (on the federal level) or from the governor (on the state level). (Group pardons are rare, but not entirely unprecedented.)

Out of the 95 sentence commutations granted by President Barrack Obama in December, two were serving life for marijuana-related crimes: Billy Dekel and Charles Cundiff.

Beth Curtis says she’s been advocating for both of them for years and plans to visit them once they’re out. Another inmate on Curtis’s radar, Larry Duke, was freed last March under a compassionate release program for inmates over 65.  While Curtis was elated by the three inmates’ release, she notes that Obama would need to seriously ramp up the number of commutations to make a meaningful dent in the population.

“These people need clemency to get any relief,” she says. “And for the old guys, it’s kind of important that it happens pretty soon. Their runway is a lot shorter. Not that the younger people shouldn’t be released also, but dying in prison is a particularly horrendous thought.  “Obama said that through clemency there would be thousands released,” Curtis adds. “I hope that that’s true. I hope and pray that that’s true.”   

Cross-posted at Marijuana Law, Policy and Reform

February 28, 2016 in Clemency and Pardons, Drug Offense Sentencing, Pot Prohibition Issues | Permalink | Comments (5)

Profiling a federal district judge eager to make the case for federal sentencing discretion

The Atlantic has this lengthy new article profiling a notable federal district judge and his notable disaffinity for rigid sentencing rules. The piece's full title highlights is themes: "One Judge Makes the Case for Judgment: John Coughenour says federal sentencing guidelines are overly punitive, coldly algorithmic measures that strip the courtroom of nuance. Without discretion, what’s the judiciary for?". Here is part of the start and middle of a piece that merits a full Sunday read:

Judge John Coughenour is a rebel. It’s not because — or not only because — he rides a Harley or spends his free time in prisons. It’s that the Reagan-appointed U.S. District Court judge has rebelled against federal sentencing guidelines ever since they were established in the mid-1980s.

But Coughenour had never earned national attention for his nonconformist ideas about sentencing and punishment — until, that is, al-Qaeda trainee Ahmed Ressam appeared in his courtroom in the spring of 2001. Over the course of the next 11 years, Coughenour would sit down to sentence Ressam to prison on three separate occasions, all for the same crime — two times to huge uproar and one time to clarify the sentence once and for all....

Coughenour was appointed during President Ronald Reagan’s first year in office, a few years before the federal sentencing guidelines were created.  The new system was meant to counteract the wild inconsistencies in the sentences handed down in different courts.  Instead of going simply by intuition, federal judges would now refer to a handbook that established a sentencing range.  And any discretion on the part of judges was intended to be restricted to the limits of that range.  But what some saw as a reasonable step toward greater justice, Coughenour saw as inhumane and robotic.  What’s the point of a judge if he is discouraged from offering his judgment?

Once on the fringe, Coughenour’s argument against sentencing guidelines is now gaining traction.  At the heart of the debate is an undecided question: Which is scarier — a world where a person’s actions are treated as part of a mathematical equation blind to context, or a world where political appointees decide people’s fates based on gut feelings?

Coughenour’s position is clear.  He believes that the standardization of sentences has resulted in less justice, not more, and that the way the nation sentences criminals today has created greater inequality, not less....

[T]wice a year for almost 20 years, Coughenour rode his Harley from Seattle to Sheridan to meet one on one with each of the men he had sentenced.  And then, he started visiting prisons all over the country with the same purpose.  To ensure candor, he insisted that the prisoners be unshackled and that the meetings be private.  A corrections officer stood outside just in case, but in two decades, Coughenour only had to call the officer in once.

During these meetings, the judge always asked the same questions: “How much time do you have left?  What are you doing to prepare yourself for getting out?  Are you dealing with anything you can’t handle?  Do you feel safe?” Sometimes, he’d compare notes about motorcycles — word traveled fast that the judge rode a Harley — and sometimes he’d just commiserate about prison food.  The next prisoner would be escorted in 15 minutes later, and the judge would start over again. Coughenour resists the implication that his visits — and the hundreds of hours he has spent asking hundreds of prisoners about their lives — have influenced his judicial philosophy.  But at the same time, Coughenour insists that the prisoners’ stories all carry a clear moral lesson: Too many people are in prison for too long.

February 28, 2016 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (4)