« February 26, 2017 - March 4, 2017 | Main | March 12, 2017 - March 18, 2017 »

March 10, 2017

"Why Prison?: An Economic Critique"

The title of this post is the title of this provocative new paper authored by Peter Salib now available via SSRN. Here is the abstract:

This Article argues that we should not imprison people who commit crimes.  This is true despite the fact that essentially all legal scholars, attorneys, judges, and laypeople see prison as the sine qua non of a criminal justice system.  Without prison, most would argue, we could not punish past crimes, deter future crimes, or keep dangerous criminals safely separate from the rest of society. Scholars of law and economics have generally held the same view, treating prison as an indispensable tool for minimizing social harm. But the prevailing view is wrong.

Employing the tools of economic analysis, this Article demonstrates that prison imposes enormous but well-hidden societal losses.  It is therefore a deeply inefficient device for serving the utilitarian aims of the criminal law system — namely, optimally deterring bad social actors while minimizing total social costs.  The Article goes on to engage in a thought experiment, asking whether an alternative system of criminal punishment could serve those goals more efficiently.  It concludes that there exist economically superior alternatives to prison available right now.  The alternatives are practicable.  They plausibly comport with our current legal rules and more general moral principles. They could theoretically be implemented tomorrow, and, if we wished, we could bid farewell forever to our sprawling, socially-suboptimal system of imprisonment.

This paragraph from the paper's conclusion partially summarizes the main prison alternative that the paper promotes:

Rather than being locked away to rot, bad actors could be employed productively in the workforce. The gains of that employment could be transferred to victims and governments, while simultaneously serving as a deterrent cost.  And to the extent that monetary transfers cannot achieve optimal deterrence, humankind is capable of inventing alternative nonmonetary sanctions to fill the gap.  Such alternative nonmonetary sanctions might rightly be criticized from a non-welfarist moral perspective.  But these criticisms often to apply with equal force to the current system. Where they do not, the question becomes when and whether efficiency should be sacrificed to other normative concerns.  That question is outside the ambit of this paper.  The alternative system can also be criticized on practicability grounds.  But upon close investigation, such criticisms lose much of their force.

March 10, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (10)

More interesting new Quick Facts on fraud sentencing from the US Sentencing Commission

I noted in this post earlier this week that the US Sentencing Commission had released the first of a new series of Quick Facts covering federal fraud sentencing with a focus on health care fraud cases. (As the USSC explains, "Quick Facts" are publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")  I have now just noticed that the USSC released a number of other fraud-focused Quick Facts this week, and here are links to them:

Hard-core federal sentencing fans might make a parlor game of trying to guess which type of fraud has the most and which has the least sentences imposed within the calculated guideline ranges.

March 10, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (4)

Collateral Consequences Resource Center provides updated 50-state accounting of judicial sealing and expungement laws

As detailed via this new post at the Collateral Consequences Resource Center, titled "Restrictions on access to criminal records: A national survey," the folks at CCRC have recently revised and brought up to date the 50-state chart comparing laws on judicial sealing and expungement." Here is more background about this important work for the CCRC posting:

This chart provides an overview of the national landscape of laws authorizing courts to restrict public access to criminal records. The chart summaries are illustrated by color-coded maps, and explained in greater detail in the state “profiles” of relief mechanisms that have been part of the Restoration of Rights Resource since that project began in 2004. We hope this research will provide a useful tool for civil and criminal practitioners, policy advocates, and government officials....

A criminal record severely restricts access to many opportunities and benefits that can be indispensable to leading a law-abiding life.  Unwarranted discrimination based on criminal record was recognized as an urgent public policy problem by President Obama when he established the National Clean Slate Clearinghouse.  In the past decade, as the collateral consequences of conviction have increased in severity, state legislatures across the country have been actively exploring ways to set reasonable limits on the use of criminal records for noncriminal justice purposes, consistent with public safety.  One of the most popular measures involves restricting public access to criminal records through measures most frequently described as “expungement” or “sealing.”  Our recent report on “second chance” legislation identified 27 states that just since 2013 have given their courts at least some authority to limit access to records.

At the same time, however, judicial authority to close the record of concluded criminal cases remains quite limited, with only a dozen states authorizing their courts to restrict public access to a substantial number of felony convictions.  The fact that nine of these 12 states have had broad sealing schemes in place for many years underscores how difficult it is to make much legislative progress in a risk-averse environment where criminal background checking has become big business.

March 10, 2017 in Collateral consequences, Reentry and community supervision | Permalink | Comments (0)

March 9, 2017

"Shaming the Constitution: The Detrimental Results of Sexual Violent Predator Legislation"

2378_regThe title of this post is the title of this notable new book authored by Michael Perlin and Heather Ellis Cucolo which provides a fitting follow-up to prior posts in this space this week concerning problems with sex offender recidivism data and expanding use of crime registries. Via the publisher's website, here is a summary of the book's coverage:

Convicted sexually violent predators are more vilified, more subject to media misrepresentation, and more likely to be denied basic human rights than any other population. Shaming the Constitution authors Michael Perlin and Heather Cucolo question the intentions of sex offender laws, offering new approaches to this most complex (and controversial) area of law and social policy.

The authors assert that sex offender laws and policies are unconstitutional and counter-productive. The legislation largely fails to add to public safety-even ruining lives for what are, in some cases, trivial infractions. Shaming the Constitution draws on law, behavioral sciences, and other disciplines to show that many of the "solutions" to penalizing sexually violent predators are "wrong," as they create the most repressive and useless laws.

In addition to tracing the history of sex offender laws, the authors address the case of Jesse Timmendequas, whose crime begat "Megan's Law;" the media's role in creating a "moral panic;" recidivism statistics and treatments, as well as international human rights laws. Ultimately, they call attention to the flaws in the system so we can find solutions that contribute to public safety in ways that do not mock Constitutional principles.

March 9, 2017 in Collateral consequences, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (21)

US Sentencing Commission releases another big recidivism report on federal offenders

The United States Sentencing Commission is continuing to publish important new data report about the recidivism rates and patterns of federal offenders.  This latest 44-page report is titled "The Past Predicts the Future: Criminal History and Recidivism of Federal Offenders."  This page on the USSC's website provides this summary and highlights:

The Past Predicts the Future: Criminal History and Recidivism of Federal Offenders examines a group of 25,431 federal offenders who were released from prison or placed on probation in calendar year 2005.  Information about the components of Chapter Four of the Guidelines Manual — including total criminal history score, criminal history category, and point assignments for types of past convictions — and their association with recidivism are contained in this report. The findings included in this report build on those in the Commission’s 2016 Recidivism Overview report.

Report Highlights

  • Consistent with its previous work in this area, the Commission found that recidivism rates are closely correlated with total criminal history points and resulting Criminal History Category classification, as offenders with lower criminal history scores have lower recidivism rates than offenders with higher criminal history scores.

  • The Commission found substantial differences in recidivism rates among Criminal History Category I offenders (which includes offenders with a criminal history score of zero or one point).  Less than one-third (30.2%) of Criminal History Category I offenders with zero points were rearrested while nearly half (46.9%) of offenders with one point were rearrested.

  • The Commission also found differences in recidivism rates among offenders with zero criminal history points. Offenders with zero points and no prior contact with the criminal justice system have a lower recidivism rate (25.7%) than offenders with zero points but some prior contact with the criminal justice system (37.4%).

  • Offenders who have less serious prior convictions (assigned one point) have a lower recidivism rate (53.4%) than offenders who have prior convictions assigned two or three points (71.3% for offenders with at least one two-point offense and 70.5% for offenders with at least one three-point offense).

March 9, 2017 in Data on sentencing, Detailed sentencing data, National and State Crime Data | Permalink | Comments (3)

"The Effectiveness of Certificates of Relief as Collateral Consequence Relief Mechanisms: An Experimental Study"

The title of this post is the title of this paper recently posted to SSRN authored by Peter Leasure and Tia Stevens Andersen. Here is the abstract:

Obtaining employment is difficult for ex-offenders due to the stigma of having a criminal record.  In recognition of this difficulty, some state legislatures have created certificates of relief (also known as certificates of recovery), which lift occupational licensing restrictions, limit employer liability for negligent hiring claims, and aim to ensure that employment decisions about certificate holders are made on a case-by-case basis.

The current study, which examines Ohio’s program for certificates of relief, presents the results of the first empirical test of the effectiveness of such certificates.  This test indicates that having a certificate of relief increases the likelihood of receiving an interview invitation or job offer more than threefold.  Importantly, certificate holders and their counterparts with clean criminal backgrounds were nearly equally likely to receive an interview invitation or job offer.  These promising preliminary results suggest certificates of relief may be an effective avenue for lessening the stigma of a criminal record for ex-offenders seeking employment.

March 9, 2017 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision | Permalink | Comments (1)

Group of Senators revive idea of a National Criminal Justice Commission

Long time readers may recall that, way back in 2009, then-Senator Jim Webb introduced legislation to create a National Criminal Justice Commission.  As reported here by The Crime Report, what was old is now new again, and might this time have a chance to become a reality:

A bipartisan group of more than 20 U.S. senators is making another attempt to establish the first national commission in 50 years to study the criminal justice system and make recommendations on improving it.  Smaller groups of senators have pursued the idea in recent years, but it has failed to amass enough support to pass.

One of the lead sponsors, Sen. Gary Peters (D-MI), said, “Our criminal justice system is built on the pillars of fairness and equality, but too many Americans see growing challenges in our justice system ranging from overburdened courts and unsustainable incarceration costs to strained relationships between law enforcement and the communities they serve.”

Joined by Sens. John Cornyn (R-TX) and Lindsey Graham (R-SC) as primary sponsors, the bill would establish a 14-member, bipartisan National Criminal Justice Commission that would conduct an 18-month, comprehensive review of the national criminal justice system. It would then issue recommendations for “changes in oversight, policies, practices, and laws to reduce crime, increase public safety and promote confidence in the criminal justice system.”

The panel would be composed of appointees of President Trump and congressional leaders of both parties, including experts on law enforcement, criminal justice, victims’ rights, civil liberties, and social services....

Under an order from President Trump, Attorney General Jeff Sessions recently set up a Task Force on Crime Reduction and Public Safety, but that panel is being run by heads of federal law enforcement agencies and does not include officials and advocates outside the Justice Department.

The senators’ proposal reflects a longstanding priority of the International Association of Chiefs of Police, and is also backed by the Fraternal Order of Police, which supported Trump’s election. Officials of a range of other organizations immediately backed the idea, including the Leadership Conference on Civil and Human Rights, the NAACP, the National Urban League, National Sheriffs’ Association, International CURE (Citizens United for the Rehabilitation of Errants), and the Major County Sheriffs of America.

It has already attracted support from an ideological mix of senators, ranging from Republicans Marco Rubio of Florida and Orrin Hatch of Utah on the right to Democrats Bill Nelson of Florida, Kirsten Gillibrand of New York, and Kamala Harris of California on the left.

March 9, 2017 in National and State Crime Data, Who Sentences? | Permalink | Comments (2)

March 8, 2017

AG Sesssions issue memo directing US Attorneys focus on "drivers of violent crime" ... and indicating change to Holder's charging memos forthcoming

As reported via this official DOJ Press release, "Attorney General Jeff Sessions today directed federal prosecutors nationwide to engage in a focused effort to investigate, prosecute and deter the most violent offenders." Here is more from the release:

This builds on the announcement last week of the creation of the U.S. Department of Justice Task Force on Crime Reduction and Public Safety, which is central to the Attorney General’s commitment to combatting illegal immigration and violent crime, such as drug trafficking, gang violence and gun crimes, and to restoring public safety to all of the nation’s communities.

“Turning back our nation’s recent rise in violent crime is a top priority for the Department of Justice, and it requires decisive action from our federal prosecutors,” said Attorney General Sessions. “I’m urging each of them to continue working closely with their counterparts at all levels, and to use every tool we have to put violent offenders behind bars and keep our citizens safe.”

In a memo to federal prosecutors in the department’s 94 United States Attorney’s Offices, the Attorney General made clear that prosecuting violent criminals is a high priority and prosecutors should work closely with their federal, state, local and tribal law enforcement partners to target the most violent offenders in each district. Working together, law enforcement at every level should determine which venue – federal or state – would best get those identified immediately off our streets and punished appropriately for their crimes.

The memo states when federal prosecution is determined appropriate, federal prosecutors should ensure the individuals driving violent crime in their district are prosecuted using the tools at their disposal, which may include firearms offenses, including possession and straw purchasing offenses; possession of a firearm during and in relation to a violent crime or drug trafficking offense; Hobbs Act robbery; carjacking; violent crime in aid of racketeering; Racketeering Influenced and Corrupt Organizations Act; and drug offenses under the Controlled Substances Act, among others.

The memo is available at this link, and hard-core federal sentencing fans might be most intrigued by a line that appears at the end of the memo which states that "an updated memorandum for charging in all criminal cases will be forthcoming."  That line suggests to me that pretty soon we will be seeing a formal new "Sessions Memo" that seeks to remove some of the "play in the joints" that former AG Eric Holder introduced through prior charging memorandum issued back in 2010 and 2013.

March 8, 2017 in Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (10)

Texas executes paid hit-man ... after Justice Breyer dissents from SCOTUS refusing to consider extended solitary death row stay

As this AP article reports, a "paid hit man was executed Tuesday night in Texas for gunning down a San Antonio woman in a life insurance scheme nearly a quarter-century ago." Here are a few more details about this latest execution:

Rolando Ruiz was given a lethal injection for fatally shooting Theresa Rodriguez, 29, outside her home in 1992 as she was getting out of a car with her husband and brother-in-law, who both orchestrated her murder. Ruiz was paid $2,000 to carry out the killing. Ruiz, strapped to the Texas death chamber gurney, looked directly at two sisters of his victim and their husbands and apologized profusely....

As the lethal dose of pentobarbital was administered, he took several deep breaths, then began snoring quietly. All movement stopped within about 30 seconds. Ruiz, 44, was pronounced dead 29 minutes later at 11:06 p.m. His execution was the third this year in Texas and the fifth nationally.

“It’s not going to bring her back, so it really doesn’t mean very much,” Susie Sanchez, whose daughter was killed in the contract murder, said Monday. Her daughters, who were among the witnesses Tuesday night, declined to comment afterward.

The execution was delayed for nearly five hours until the U.S. Supreme Court rejected three appeals attorneys had filed for Ruiz to try to stop the punishment. His lawyers argued to the high court that lower courts improperly rejected an earlier appeal that focused on whether Ruiz earlier had deficient legal help. They also contended Ruiz’s execution would be unconstitutionally cruel because he’s been on death row since 1995, had multiple execution dates and two reprieves. Attorney Lee Kovarsky blamed the long time between a San Antonio jury’s verdict and the punishment on the state’s failure to provide Ruiz with competent lawyers earlier in his appeals.

Justice Stephen Breyer said he would have stopped the execution to further examine the question of prolonged death row confinement.

Notably, as revealed here, Justice Breyer's solo dissent from the denial of a stay by SCOTUS was fairly substantive. Here is how it starts and ends:

Petitioner Rolando Ruiz has been on death row for 22 years, most of which he has spent in permanent solitary confinement. Mr. Ruiz argues that his execution “violates the Eighth Amendment” because it “follow[s] lengthy [death row] incarceration in traumatic conditions,” principally his “permanent solitary confinement.” Petition 25. I believe his claim is a strong one, and we should consider it....

Here the “human toll" that accompanies extended solitary confinement is exacerbated by the fact that execution is in the offing.  Moreover, Mr. Ruiz has developed symptoms long associated with solitary confinement, namely severe anxiety and depression, suicidal thoughts, hallucinations, disorientation, memory loss, and sleep difficulty.  Further, the lower courts have recognized that Mr. Ruiz has been diligent in pursuing his claims, finding the 22-year delay attributable to the State or the lower courts.  Ruiz v. Quarterman, 504 F. 3d 523, 530 (CA5 2007) (quoting Ruiz v. Dretke, 2005 WL 2620193, *2 (WD Tex., Oct. 13, 2005)). Nor are Mr. Ruiz’s 20 years of solitary confinement attributable to any special penological problem or need. They arise simply from the fact that he is a prisoner awaiting execution. App. E to Petition 16.

If extended solitary confinement alone raises serious constitutional questions, then 20 years of solitary confinement, all the while under threat of execution, must raise similar questions, and to a rare degree, and with particular intensity.  That is why I would grant a stay of execution, allowing the Court to examine the record more fully.

March 8, 2017 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (16)

"Public Crime Registries Rarely Work, So Why Do They Continue to Grow?"

The question in the title of this post is the headline of this new Pacific Standard commentary authored by Emmanuel Felton. Here are excerpts: 

[T]he idea of making information about offenders public has proven immensely popular. A 2005 Gallup poll showed that virtually all Americans  —  94 percent  — supported public sex offender registries and about two-thirds of those surveyed said they weren’t even somewhat concerned about how the public nature of registries affected those forced to sign up. With the Internet providing states with a cheap and easy way to get information into the hands of citizens, lawmakers soon found registries to be a relatively inexpensive solution to complex problems, says Amanda Agan, a Rutgers University professor who studies the economics of crime.

“These policies were well intentioned and they sounded like they might work. And on top of that they are relatively low cost,” Agan says. “But now we have all of this evidence that they just don’t work, but the problem is it’s very difficult to start pulling back. There would be a public outcry.”

The Murderer and Violent Offender Against Youth Registry started off as a fix for a legislature-made problem. In the mid-1990s, at the height of the tough-on-crime movement, Illinois added a host of offenses against children to their sex offender rolls, including first-degree murder, kidnapping, and child abduction, regardless of whether the crime involved a sex offense. Responding to concerns that it was unfair to include those offenders  —  take, for example, the case of a 13-year-old girl who stabbed her older brother with a kitchen knife after a fight over a shower cap  —  on the sex crime list, the state created this new violent offender registry. That created a registry for people convicted of a set of violent crimes against children. That list was later expanded to include murderers like Armstrong, whose crimes didn’t involve children, when, in 2011, state lawmakers passed Andrea’s Law, named for a college student strangled to death by her ex-boyfriend.

While Illinois lawmakers may be the most zealous employers of public registries  —  the state also maintains an online list of those convicted of making methamphetamine  —  the state is far from alone. Oklahoma also has a violent crime registry similar to Illinois’ and Kansas has a meth registry like Illinois’. Indiana, Kansas, and Montana still have combined sex and violent offender registries. Florida, on the other hand, makes folks convicted of three violent felonies sign up for a public registry. Tennessee also had a meth registry, before expanding it into a much more encompassing drug offender registry. And among the more original uses, Tennessee also has an animal abuser registry and Utah recently launched a registry for people convicted of certain white-collar crimes.

While there isn’t much research about the effectiveness of newer crime registries like those for murderers, there has been a lot of research into sex offender registries. Jill Levenson, a professor of social work at Barry University, says that research has been conclusive: those registries simply haven’t reduced sex crimes. She says that’s because they obscure the real threat to children, being abused by someone close to them, and greatly overemphasize the incredibly rare occurrences of children being abducted by people they don’t know.

“Stranger abductions of children happen just 115 times a year in this country,” says Levenson, who studies the effectiveness of policies that aim to reduce sexual violence. “While there’s no question that that’s 115 too many, there are 80 million children in this country. The problem with sex offender registries is they obscure the real threat — over 90 percent of children who are sexually abused are abused by people they know.”

St. Louis University Law School professor Molly Wilson says the concept of cognitive availability helps explain why threats like stranger danger remain so prominent in the making of our criminal codes. Cognitive availability describes a logical fallacy where decision-makers tend to overemphasize the importance of examples that quickly come to mind. That leads people to overestimate threats with really salacious details, Wilson says. “When you ask someone to estimate how serious a threat is, they search their minds,” says Wilson, who also holds a doctorate degree in psychology. “What they come to first is what is cognitively available, and that’s these really vivid examples that from an empirical standpoint are pretty rare. The human mind is designed to think of the sensory cases that imprint details — an image of the bicycle that a girl was riding sticking out of the bushes.”

Cognitive availability is a particularly compelling explanation for why many registries quickly expanded to murderers despite the fact that just 1 percent of murderers kill again. Similarly, just 6 percent of people convicted of rape or sexual assault repeated in the five-year follow-up period covered by a recent Bureau of Justice Statistics report. That’s compared to a 13 percent same-crime recidivism rate for robbers and a 34 percent rate for those convicted of assault. Despite repeated attempts by researchers to link lower sex offender recidivism rates with the passage of registration laws, there’s been no conclusive evidence supporting that hypothesis. In fact, there is some evidence that these laws actually increase recidivism as they effectively act as anti-re-entry programs.

Arthur Lurigio, a clinical psychologist and a professor of criminal justice and psychology at Loyola University Chicago, says the rise of registries underscores a central failure of America’s criminal justice system: “ We are failing to recognize the possibility of human change.”...

Wayne Logan — whose 2009 book, Knowledge as Power: Criminal Registration and Community Notification Laws in America, charts the rise of crime registries over 75 years — says there has been some relaxing of registration rules for sex offenders in recent years. He points to California’s public registry, which no longer includes those caught soliciting prostitutes and so-called Romeo and Juliet offenses—those are the cases where there’s consensual sex between teenagers, one of whom is a minor. “You see some unwinding,” says Logan, a professor of law at Florida State University. “But the overall trend is expansion. It’s a very flexible technology, it can work for arsonists or meth makers or white-collar criminals. It’s social control on the cheap.”

March 8, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (3)

March 7, 2017

Detailing how common a very long wait on death row has become

Slate has this notable short piece on the long wait many condemned have before execution.  The piece is headlined "40 Years Awaiting Execution: For many death row inmates, the long process leading to capital punishment is itself cruel — but not unusual."  Here are excerpts:

In 1979, Arthur Lee Giles, then 19 years old, was sentenced to death in Blount County, Alabama.  Nearly 40 years later, he is still waiting to be executed.  His glacial march to execution exposes a conundrum at the heart of America’s death penalty. Condemned prisoners often spend decades on death row before being executed — if the execution ever happens at all — a fact that undermines any retributive value capital punishment might provide.

Approximately 40 percent of the 2,739 people currently on death row have spent at least 20 years awaiting execution, and 1 in 3 of these prisoners are older than 50.  (This is according to data collected by the Fair Punishment Project and sourced from the NAACP’s Legal Defense Fund, the Federal Bureau of Prisons, and state corrections departments.)

According to a Los Angeles Times investigation, roughly two dozen men on California’s death row require walkers and wheelchairs, and one is living out his days in bed wearing diapers.  In North Carolina, nine death row prisoners have died of natural causes since 2006 — the same year the state last executed someone.  These delays suggest that executions must be sped up significantly.... 

With public support for executions at historic lows, death row delays seem likely to increase. Just 20 of the nearly 3,000 prisoners on death row nationwide were executed last year.

California is a prime example.  In 2014, a federal judge wrote that the state’s capital punishment system is actually a sentence of “life without parole with the remote possibility of death.”  The judge calculated that “just to carry out the sentences of the 748 inmates currently on Death Row, the State would have to conduct more than one execution a week for the next 14 years.”  That’s an unfathomable outcome in any state, much less in one that has not performed a single execution in more than a decade....

In an effort to combat these delays, California voters narrowly passed Proposition 66 in 2016, which promised to speed up executions by imposing more severe limitations on the death penalty appeals process. Yet Prop 66 has already faced significant constitutional challenges, and the California Supreme Court has stayed the initiative pending the outcome of a case filed by former state Attorney General John Van de Kamp and Ron Briggs, the two men who wrote the successful statewide proposition reinstating the death penalty in California 40 years ago.

March 7, 2017 in Data on sentencing, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

"Booker Disparity and Data-Driven Sentencing"

The title of this post is the title of this notable new article now available via SSRN authored by Joshua Divine. Here is the abstract:

Sentencing disparity among similar offenders has increased at a disconcerting rate over the last decade.  Some judges issue sentences twice as harsh as peer judges, meaning that a defendant’s sentence substantially depends on which judge is randomly assigned to a case.  The old mandatory sentencing guidelines repressed disparity but only by causing unwarranted uniformity.  The advisory guidelines swing the pendulum toward the opposite extreme, and this problem promises to grow worse as the lingering effect of the old regime continues to decrease.

This Article is the first to propose a system — data-driven appellate review — that curbs sentencing disparity without re-introducing unwarranted uniformity.  Congress should establish a rebuttable presumption that outlier sentences among similar offenders are unreasonable.  The U.S. Sentencing Commission collects data on over 70,000 criminal cases annually.  This data provides the tool for defining categories of similar offenders.  Culling outlier sentences through data-driven appellate review would increase judicial awareness of sentences issued by peer judges and would therefore curb the increase in inter-judge disparity without resorting to unwarranted uniformity.

March 7, 2017 in Booker and Fanfan Commentary, Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Reviewing the ugly backstory of SCOTUS dicta on sex offender recidivism

Today's New York Times has this intriguing new Sidebar article by SCOTUS reporter Adam Liptak under the headline "Did the Supreme Court Base a Ruling on a Myth?".  Here are excerpts:

Last week at the Supreme Court, a lawyer made what seemed like an unremarkable point about registered sex offenders. “This court has recognized that they have a high rate of recidivism and are very likely to do this again,” said the lawyer, Robert C. Montgomery, who was defending a North Carolina statute that bars sex offenders from using Facebook, Twitter and other social media services.

The Supreme Court has indeed said the risk that sex offenders will commit new crimes is “frightening and high.” That phrase, in a 2003 decision upholding Alaska’s sex offender registration law, has been exceptionally influential. It has appeared in more than 100 lower-court opinions, and it has helped justify laws that effectively banish registered sex offenders from many aspects of everyday life.

But there is vanishingly little evidence for the Supreme Court’s assertion that convicted sex offenders commit new offenses at very high rates. The story behind the notion, it turns out, starts with a throwaway line in a glossy magazine.

Justice Anthony M. Kennedy’s majority opinion in the 2003 case, Smith v. Doe, cited one of his own earlier opinions for support, and that opinion did include a startling statistic. “The rate of recidivism of untreated offenders has been estimated to be as high as 80 percent,” Justice Kennedy wrote in the earlier case, McKune v. Lile.

He cited what seemed to be a good source for the statistic: “A Practitioner’s Guide to Treating the Incarcerated Male Sex Offender,” published in 1988 by the Justice Department. The guide, a compendium of papers from outside experts, is 231 pages long, and it contains lots of statistics on sex offender recidivism rates. Many of them were in the single digits, some a little higher. Only one source claimed an 80 percent rate, and the guide itself said that number might be exaggerated.

The source of the 80 percent figure was a 1986 article in Psychology Today, a magazine written for a general audience. The article was about a counseling program run by the authors, and they made a statement that could be good for business. “Most untreated sex offenders released from prison go on to commit more offenses — indeed, as many as 80 percent do,” the article said, without evidence or elaboration.

That’s it. The basis for much of American jurisprudence and legislation about sex offenders was rooted in an offhand and unsupported statement in a mass-market magazine, not a peer-reviewed journal....

A 2014 Justice Department report found ... that sex offenders generally have low overall recidivism rates for crimes. But they are more likely to commit additional sex offenses than other criminals. In the three years after release from prison, 1.3 percent of people convicted of other kinds of crimes were arrested for sex offenses, compared to 5.3 percent of sex offenders. Those findings are broadly consistent with seven reports in various states, which found that people convicted of sex crimes committed new sex offenses at rates of 1.7 percent to 5.7 percent in time periods ranging from three to 10 years....

Lower courts generally accept what the Supreme Court says. That is true not only about the law but also about facts subject to independent verification.  Last year, though, the federal appeals court in Cincinnati gently suggested that the Supreme Court had taken a wrong turn in its 2003 decision in Smith v. Doe. Judge Alice M. Batchelder, writing for a unanimous three-judge panel, described “the significant doubt cast by recent empirical studies on the pronouncement in Smith that ‘the risk of recidivism posed by sex offenders is “frightening and high.’”  The appeals court struck down a particularly strict Michigan sex-offender law as a violation of the Constitution’s ex post facto clause, saying it retroactively imposed punishment on people who had committed offenses before the law was enacted.  

The state has asked the Supreme Court to consider the case, Does v. Snyder, No. 16-768. The first paragraph of its petition says that the risk of recidivism “remains ‘frightening and high.’”  The constitutional question in the case is interesting and substantial.  And hearing the case would allow the court to consider more fully its casual assertion that sex offenders are especially dangerous.

March 7, 2017 in Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (16)

March 6, 2017

"Rationing Criminal Justice"

The title of this post is the title of this notable new article now available via SSRN and authored by Richard Bierschbach and Stephanos Bibas.  Here is the abstract:

Of the many diagnoses of American criminal justice’s ills, few focus on externalities.  Yet American criminal justice systematically overpunishes in large part because few mechanisms exist to force consideration of the full social costs of criminal justice interventions.  Actors often lack good information or incentives to minimize the harms they impose. Part of the problem is structural: criminal justice is fragmented vertically among governments, horizontally among agencies, and individually among self-interested actors. Part is a matter of focus: doctrinally and pragmatically, actors overwhelmingly view each case as an isolated, short-term transaction to the exclusion of broader, long-term, and aggregate effects.

Treating punishment like other public-law problems of regulation suggests various regulatory tools as rough solutions, such as cost-benefit analysis, devolution, pricing, and caps.  As these tools highlight, scarcity often works not as a bug but as a design feature.  Criminal justice’s distinctive intangible values, politics, distributional concerns, and localism complicate the picture.  But more direct engagement with how best to ration criminal justice could help to end the correctional free lunch at the all-you-can-eat buffet and put the bloated American carceral state on the diet it needs.

March 6, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (3)

Interesting new Quick Facts on federal health care fraud sentencing from the US Sentencing Commission

The US Sentencing Commission has released this notable new Quick Facts covering federal sentencing in health care fraud cases. (As the USSC explains, "Quick Facts" are publications that "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format.")  Here are a few of the intriguing data details from the the publication highlighting that within-guideline sentencing is actually the exception rather than the norm in these cases:

During the past three years, the rate of within range sentences for health care fraud offenders has decreased from 43.6% in fiscal year 2013 to 32.9% in fiscal year 2015.

In each of the past three years, approximately one-fifth to one-third of health care fraud offenders received a sentence below the applicable guideline range because the government sponsored the below range sentence....

In each of the past three years, approximately 34 percent of health care fraud offenders received a non-government sponsored below range sentence.

March 6, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (0)

Could and will SCOTUS Pena-Rodriguez decision create new ways attack death sentences (and even other jury sentencing outcomes)?

The question in the title of this post was the first idea that jumped into my sentencing-addled mind as I was (too) quickly reviewing the Supreme Court's Sixth Amendment work today in Pena-Rodriguez v. Colorado (basics here, full opinion here).  Critically, the Pena-Rodriguez decision concerns a jury's deliberation about guily, and the opinion keeps referencing a juror's "vote to convict." But, in some cases in some states, jurors also have a role in sentencing, and this is most common and most consequential in the context of capital cases. And there is lots of dicta in Pena-Rodriguez that surely could, and I would guess often will, be stressed by capital defendants trying to throw shade on a jury's capital sentencing decision-making. Consider, as just one example, these passages:

[R]acial bias, a familiar and recurring evil that, if left unaddressed, would risk systemic injury to the administration of justice.  This Court’s decisions demonstrate that racial bias implicates unique historical, constitutional, and institutional concerns. An effort to address the most grave and serious statements of racial bias is not an effort to perfect the jury but to ensure that our legal system remains capable of coming ever closer to the promise of equal treatment under the law that is so central to a functioning democracy....

A constitutional rule that racial bias in the justice system must be addressed — including, in some instances, after the verdict has been entered — is necessary to prevent a systemic loss of confidence in jury verdicts, a confidence that is a central premise of the Sixth Amendment trial right.

As those who follow debates over the death penalty know well, many who advocate abolition often assert that capital punishment's administration through often seemingly disparate jury verdicts reveals a certain kind of "racial bias [as] a familiar and recurring evil" that contributes to "a systemic loss of confidence in jury verdicts."  (Consider, for example, this page at the Death Penalty Information Center spotlighting racial patterns in death penalty administration.) In light of those views, as well as the obligation and zeal of defense attorneys to raise every non-frivolous argument to contest a death sentence, I have reason to think the capital defense bar could, should and will be making much of today's SCOTUS work in Pena-Rodriguez.

March 6, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (2)

Formalism (and floodgate/functionality fears?) prevail over functional analysis in Beckles

I was involved in preparing an amicus brief in the Beckles case decided by the Supreme Court this morning (basics here, full opinion here), and that brief argued (unsuccessfully) that the advisory federal sentencing guidelines should be subject to vagueness challenges.  The argument was, in its essence, a functional one highlighting the significant impact that guideline calculations still have on sentencing outcomes even though they are advisory.  Justice Sotomayor's separate opinion in Beckles, though concurring on narrow grounds, wholly embraced this functional argument to make the case that the guidelines should be subject to vagueness challenges.  Here are some passages from her extended decision that capture her functional perspective (with cites omitted, but key emphasis from original):

In most cases, it is the range set by the Guidelines, not the minimum or maximum term of imprisonment set by statute, that specifies the number of years a defendant will spend in prison. District courts impose a sentence within the Guidelines (or below the Guidelines based on a Government motion) over 80% of the time.  And when Guidelines ranges change — because the Guidelines themselves change, or because the court is informed of an error it made in applying them — sentences change, too. It is therefore no exaggeration to say that the Guidelines are, in a real sense, the basis for the sentence imposed by the district court....

As set out above, although the Guidelines do not bind a district court as a formal matter, as a functional matter they anchor both the district court’s discretion and the appellate review process....

Absent that Guideline, Beckles would have been sentenced to between 33 and 98 fewer months in prison. The District Court admitted as much, explaining that had the Guideline not applied, she “would not have imprisoned Beckles to 360 months” in prison. Years of Beckles’ life thus turned solely on whether the career-offender Guideline applied. There is no meaningful way in which the Guideline exerted less effect on Beckles’ sentence than did the statute setting his minimum and maximum terms of imprisonment; indeed, it was the Guidelines, not just the statute, that fixed Beckles’ sentence in every meaningful way. Nothing of substance, in other words, distinguishes the Guidelines from the kind of laws we held susceptible to vagueness challenges in Johnson; both law and Guideline alike operate to extend the time a person spends in prison. The Due Process Clause should apply equally to each.

Notably, as Justice Sotomayor highlights in various ways in her opinion, this kind of functional concern with the continued importance of advisory guideline calculations drove the majority opinions in prior recent cases like Peugh dealing with application of the Ex Post Facto clause and Molina-Martinez dealing with plain error review. But this time around, a more formalistic approach carried the day.

As my post title here suggests, I think the formalistic approach to application of the vagueness doctrine at sentencing prevail because a number of key Justices, particularly perhaps the Chief and Justice Kennedy, may have been especially concerned about what a "vagueness at sentencing" doctrine could end up looking like and how often it might arise. Notably, Justice Kennedy authored an intriguing little concurrence in Beckles that suggests he is concerned about arbitrary sentencing, but was here even more concerned about application of traditional vagueness doctrine to sentencing. Here is what Justice Kennedy had to say:

As sentencing laws and standards continue to evolve, cases may arise in which the formulation of a sentencing provision leads to a sentence, or a pattern of sentencing, challenged as so arbitrary that it implicates constitutional concerns. In that instance, a litigant might use the word vague in a general sense — that is to say, imprecise or unclear — in trying to establish that the sentencing decision was flawed. That something is vague as a general matter, however, does not necessarily mean that it is vague within the well-established legal meaning of that term. And it seems most unlikely that the definitional structure used to explain vagueness in the context of fair warning to a transgressor, or of preventing arbitrary enforcement, is, by automatic transference, applicable to the subject of sentencing where judicial discretion is involved as distinct from a statutory command. See Johnson v. United States, 576 U. S. ___ (2015).

The existing principles for defining vagueness cannot be transported uncritically to the realm of judicial discretion in sentencing. Some other explication of the constitutional limitations likely would be required.

Though I find intriguing the suggestion by Justice Kennedy that there could and sould be "some other explication of the constitutional limitations" on the realm of judicial discretion in sentencing, the ruling in Beckles may itself ensure that such an explication never gets developed in the context of the Due Process Clause.  (Whether Justice Kennedy and others might explicate such limits in non-capital sentencing as they have in capital sentencing through the Eighth Amendment might still be ripe with possibilities.)

March 6, 2017 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (3)

SCOTUS rules in Pena-Rodriguez that Sixth Amendment creates exception to jury impeachment rule when racial animus revealed

A split Supreme Court weighed in on the intersection of racial bias and jury decision-making via a notable Sixth Amendment ruling in Pena-Rodriguez v. Colorado, No. 15–606 (S. Ct. March 6, 2017) (available here). Here is how Justice Kennedy's opinion for the Court gets started and concludes:

The jury is a central foundation of our justice system and our democracy. Whatever its imperfections in a particular case, the jury is a necessary check on governmental power. The jury, over the centuries, has been an inspired, trusted, and effective instrument for resolving factual disputes and determining ultimate questions of guilt or innocence in criminal cases. Over the long course its judgments find acceptance in the community, an acceptance essential to respect for the rule of law. The jury is a tangible implementation of the principle that the law comes from the people.

In the era of our Nation’s founding, the right to a jury trial already had existed and evolved for centuries, through and alongside the common law. The jury was considered a fundamental safeguard of individual liberty.  See The Federalist No. 83, p. 451 (B. Warner ed. 1818) (A. Hamilton).  The right to a jury trial in criminal cases was part of the Constitution as first drawn, and it was restated in the Sixth Amendment. Art. III, §2, cl. 3; Amdt. 6.  By operation of the Fourteenth Amendment, it is applicable to the States. Duncan v. Louisiana, 391 U. S. 145, 149–150 (1968).

Like all human institutions, the jury system has its flaws, yet experience shows that fair and impartial verdicts can be reached if the jury follows the court’s instructions and undertakes deliberations that are honest, candid, robust, and based on common sense.  A general rule has evolved to give substantial protection to verdict finality and to assure jurors that, once their verdict has been entered, it will not later be called into question based on the comments or conclusions they expressed during deliberations.  This principle, itself centuries old, is often referred to as the no-impeachment rule. The instant case presents the question whether there is an exception to the no-impeachment rule when, after the jury is discharged, a juror comes forward with compelling evidence that another juror made clear and explicit statements indicating that racial animus was a significant motivating factor in his or her vote to convict....

The Nation must continue to make strides to overcome race-based discrimination. The progress that has already been made underlies the Court’s insistence that blatant racial prejudice is antithetical to the functioning of the jury system and must be confronted in egregious cases like this one despite the general bar of the no-impeachment rule. It is the mark of a maturing legal system that it seeks to understand and to implement the lessons of history. The Court now seeks to strengthen the broader principle that society can and must move forward by achieving the thoughtful, rational dialogue at the foundation of both the jury system and the free society that sustains our Constitution.

The start of the dissenting opinion by Justice Thomas explains his concerns and the core concerns of the other dissenters (which are expressed via an opinion by Justice Alito joined by the Chief and Justice Thomas):

The Court today holds that the Sixth Amendment requires the States to provide a criminal defendant the opportunity to impeach a jury’s guilty verdict with juror testimony about a juror’s alleged racial bias, notwithstanding a state procedural rule forbidding such testimony. I agree with JUSTICE ALITO that the Court’s decision is incompatible with the text of the Amendment it purports to interpret and with our precedents. I write separately to explain that the Court’s holding also cannot be squared with the original understanding of the Sixth or Fourteenth Amendments.

March 6, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (33)

SCOTUS rules in Beckles that federal advisory guidelines are not subject to Due Process vagueness challenges

The Supreme Court this morning issued a big opinion concerning the operation of and challenges to the federal sentencing guidelines in Beckles v. United States, No. No. 15–8544 (S. Ct. March 6, 2017) (available here). Here is how the opinion authored by Justice Thomas gets started: 

At the time of petitioner’s sentencing, the advisory Sentencing Guidelines included a residual clause defining a “crime of violence” as an offense that “involves conduct that presents a serious potential risk of physical injury to another.” United States Sentencing Commission, Guidelines Manual §4B1.2(a)(2) (Nov. 2006) (USSG).   This Court held in Johnson v. United States, 576 U. S. ___ (2015), that the identically worded residual clause in the Armed Career Criminal Act of 1984 (ACCA), 18 U.S.C. §924(e)(2)(B), was unconstitutionally vague. Petitioner contends that the Guidelines’ residual clause is also void for vagueness.  Because we hold that the advisory Guidelines are not subject to vagueness challenges under the Due Process Clause, we reject petitioner’s argument.

After the oral argument tone in this case, I am not surprised to see this result. But I expect I may have more to say about the particulars of this Beckles ruling in the coming hours and days.  To begin, I think the sentiments in the closing section of the opinion of the Court best accounts for the Beckles outcome:

In addition to directing sentencing courts to consider the Guidelines, see §3553(a)(4)(A), Congress has directed them to consider a number of other factors in exercising their sentencing discretion, see §§3553(a)(1)–(3), (5)–(7). The Government concedes that “American judges have long made th[e] sorts of judgments” called for by the §3553(a) factors “in indeterminate-sentencing schemes, and this Court has never understood such discretionary determinations to raise vagueness concerns.” Brief for United States 42. Because the §3553 factors — like the Guidelines — do not mandate any specific sentences, but rather guide the exercise of a district court’s discretion within the applicable statutory range, our holding today casts no doubt on their validity.

Holding that the Guidelines are subject to vagueness challenges under the Due Process Clause, however, would cast serious doubt on their validity. Many of these other factors appear at least as unclear as §4B1.2(a)’s residual clause. For example, courts must assess “the need for the sentence imposed” to achieve certain goals — such as to “reflect the seriousness of the offense,” “promote respect for the law,” “provide just punishment for the offense,” “afford adequate deterrence to criminal conduct,” and “provide the defendant with needed educational or vocational training . . . in the most effective manner.” §3553(a)(2). If petitioner were correct that §4B1.2(a)’s residual clause were subject to a vagueness challenge, we would be hard pressed to find these factors sufficiently definite to provide adequate notice and prevent arbitrary enforcement.

The Government tries to have it both ways, arguing that the individualized sentencing required by the other §3553(a) factors is different in kind from that required by the Guidelines. “An inscrutably vague advisory guideline,” it contends, “injects arbitrariness into the sentencing process that is not found in the exercise of unguided discretion in a traditional sentencing system.” Reply Brief for United States 10–11. But it is far from obvious that the residual clause implicates the twin concerns of vagueness any more than the statutory command that sentencing courts impose a sentence tailored, for example, “to promote respect for the law.” §3553(a)(2)(A). And neither the Guidelines nor the other §3553 factors implicate those concerns more than the absence of any guidance at all, which the Government concedes is constitutional.

The Government also suggests that the Guidelines are not like the other §3553(a) factors “because they require a court to decide whether the facts of the case satisfy a legal standard in order to derive a specific numerical range.” Id., at 22. But that does not distinguish the other sentencing factors, which require courts to do the same thing. Section 3553(a) states that district courts “shall impose a sentence sufficient, but not greater than necessary, to comply with the purposes set forth in [§3553(a)(2)].” In fact, the Guidelines generally offer more concrete advice in imposing a particular sentence and make it easier to review whether a court has abused its substantial discretion. There is no sound reason to conclude that the Guidelines — but not §3553(a)’s other sentencing factors — are amenable to vagueness review.

March 6, 2017 in Federal Sentencing Guidelines, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (2)

No grants, but latest SCOTUS order list still has lots of intrigue for criminal justice fans (especially those concerned with risk-assessment sentencing)

The Supreme Court this morning released this order list, and it is extended because there is a summary per curiam GVR in a Nevada capital case (available here) and a trio of extended statements concerning the denial of cert (two of which were authored by Justice Thomas and one of which comes from Justice Sotomayor).  I would comment at length about these matters, but SCOTUS has provided bigger sentencing fish to fry by also deciding the Beckles vagueness case today (discussed here).

For hard-core sentencing fans, perhaps the most intriguing aspect of the order list is this item:

16-6387 LOOMIS, ERIC L. V. WISCONSIN

The Acting Solicitor General is invited to file a brief in this case expressing the views of the United States.  

As some may recall from some prior postings, Loomis concerns a due process challenge to the use of risk-assessment instruments at sentencing. It will be very interesting to see what the Trump Administration decides to say in this case and to see if SCOTUS ultimately takes up this timley and consequential issue. 

Prior related posts on Loomis case:

March 6, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

March 5, 2017

Continuing efforts to unwind felon disenfranchisement in some states

The Wall Street Journal has this notable new article headlined "States Ease Restrictions on Voting by Felons: Florida proposal to lift its lifetime ban would add to a nationwide trend." Here are excerpts:

Mr. Meade is among an estimated 6.1 million felons who have served their time and lost their right to vote, of whom about 1.7 million live in Florida. Virginia, Kentucky and Iowa are the only other states with lifetime voting bans, which can be lifted only through the clemency process. Other states impose waiting periods or require felons to complete parole or probation requirements.

Mr. Meade plans to be in the courtroom Monday when the Florida Supreme Court reviews a proposed constitutional amendment to allow felons, except for murderers and sex offenders, to vote after they finish their sentences, parole and probation. The court will decide whether the measure meets standards to go before voters, provided it gets enough signatures; Mr. Meade, as head of Floridians for a Fair Democracy, is leading the petition drive to put the amendment on the 2018 ballot.

“To be shut out of the democratic process is like a perpetual punishment and slap in the face saying you’re never going to be a citizen,” said Mr. Meade, a 49-year-old father of five. “I paid my debt to society and served my time. Now I should have the opportunity to have my voice heard.”

Since 1997, 23 states have made it easier for people with felony convictions to vote again, according to the Sentencing Project, which advocates an overhaul of crime laws. This year, Nebraska is considering a bill that would eliminate a two-year waiting period.

Critics of automatic restoration of voting rights argue that voting is a responsibility, not a right, and that felons should have to take steps to earn that right after leaving prison. President Donald Trump attacked Democratic Virginia Gov. Terry McAuliffe for using executive orders to restore voting rights to felons after release from prison. “He’s letting criminals cancel out the votes of law-abiding citizens,” Mr. Trump told a rally in Leesburg, Va., the day before his election.

The efforts in Florida and Virginia reflect a nationwide push by criminal-justice activists to alleviate what they call “collateral consequences” of incarceration. In many states, felons released from prison are barred from getting certain occupational licenses, public housing, food stamps and other government assistance. That makes it harder for ex-inmates to get back on their feet, some criminal-justice experts say....

In 2007, then-Gov. Charlie Crist of Florida, and his cabinet, relaxed the rules to make it easier for felons to vote after leaving prison. During the former Republican’s one term, more than 155,000 felons regained their voting rights. Mr. Crist is now a Democratic member of Congress.

Beginning in 2011, under current Gov. Rick Scott, with support from state Attorney General Pam Bondi, felons had to wait at least five law-abiding years before applying to a clemency board. Applications for clemency plunged after the board, which includes Mr. Scott and Ms. Bondi, implemented the new wait time. Since Mr. Scott’s election in 2010, 2,487 people with felony convictions have regained access to the polls....

In Kentucky and Iowa, efforts by Democratic governors to make it easier for felons to vote were reversed by their Republican successors.  Many Republicans see restoration of voting rights as a strategy by Democrats to add more African-Americans, who make up a disproportionate share of the prison population, to the voting rolls; Democrats see GOP opposition as tantamount to suppressing the black vote.

Rep. Carlos Curbelo (R., Fla.), one of the only GOP officials to sign the petition supporting the constitutional amendment, said the issue should transcend partisanship.  After the court decides whether it qualifies for the ballot, the amendment would need roughly 750,000 signatures; to take effect, it needs approval from 60% of voters. “If you can’t give people a way to get back on their feet and become fully active citizens once they’ve served their time, then it’s only a matter of time before they end up back behind bars,” Mr. Curbelo said.

March 5, 2017 in Collateral consequences | Permalink | Comments (5)

Five years after his SCOTUS victory, Evan Miller scheduled to be resentenced

This local article, headlined "Re-sentencing of Evan Miller ordered by US Supreme Court set for March 13," reports on the upcoming resentencing of a defendant's whose surname now represents a big part of modern "kids-are-different" Eighth Amendment jurisprudence.  Here are some of the particulars from the article, which prompts some questions for me:

A sentencing hearing has been scheduled for March 13 in Lawrence County for Evan Miller, whose original sentence on a capital murder conviction was overturned by the U.S. Supreme Court and led to sentencing laws being changed for juveniles nationwide.

The Supreme Court in 2012 ordered that Miller be re-sentenced because the state’s only sentencing option for a juvenile convicted of capital murder was life in prison without the chance of parole.  A state law adopted last year now gives a judge the option of sentencing a juvenile convicted of capital murder to life in prison with the chance of parole after serving at least 30 years in prison.

Miller, now 28, was convicted of capital murder in 2006 for the 2003 killing of Cole C. Cannon in Cannon’s home in a Five Points mobile home park. Miller, who was 14 when the beating death occurred, is an inmate at St. Clair Correctional Facility in Springville.

Cannon’s daughter, Cindy Cheatham, said she thinks next month’s sentence hearing before a jury will be the the last court proceeding for the Cannon family in the case. “Even though there is anticipation, it makes me sort of edgy and emotional,” Cheatham said. “I’m ready for it to be over.  But it will never really be over.”...

When Miller was sentenced in 2006, Circuit Court Judge Philip Reich, who is now retired, sentenced Miller to life in prison without the possibility of parole.  The only sentences allowed by state law at the time for capital murder were the death penalty or life in prison without parole.  Reich could not sentence Miller to death because the Supreme Court in 2005 declared the death penalty for defendants younger than age 18 to be unconstitutional.

The Equal Justice Initiative appealed Miller’s sentence to the Supreme Court, which voted 5-4 that the state must have another sentencing option available for juveniles in a capital case other than life without parole.  The court sent the case back to Lawrence County for re-sentencing.  The new state law that a juvenile can be eligible for parole after 30 years does not preclude a judge from sentencing a juvenile capital murder defendant to life in prison without parole.

My first question after reading this article concerned why it took nearly five years for Evan Miller to have a resentencing, but this local article from last year suggests that resentencing was delayed until the Alabama legislature created a "Miller fix" in its sentencing law.  That "fix" now gives an Alabama judge, as detailed above and more fully in this local article, in this kind of case the discretion to impose LWOP or life with a chance at parole after 30 years.

But when remains unclear to me is why Evan Miller is apparently scheduled to appear before a jury at resentencing.  I suspect this may be because technically he is being resentenced on a capital conviction, but some have suggested in this juve sentencing setting that the Supreme Court's work in  Miller and the follow-up case Montgomery, combined with the Apprendi line of cases, now requires a jury finding of "irreparable corruption" to permit  giving a juve an LWOP sentence.  I would be grateful to hear from anyone in the know about Alabama sentencing procedures about why this article talks about Miller's upcoming sentence hearing being "before a jury."

March 5, 2017 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

"Women in Prison: Should they be treated differently from men?"

The title of this post is the title of a lengthy new examination of the incarceration rates of women in recent years just published here by the CQ Researcher, which seeks to provide "in-depth reporting on issues in the news." The full report requires a subscription, but here is the preview via the CQ Researcher website:

The number of women in state and federal prisons has surged since 1978 by nearly 800 percent — twice the growth rate for men.  Mandatory sentences for drug offenses enacted during the 1980s and 1990s have hit women particularly hard, many experts say.  But some prosecutors and Republicans dispute the claim that the so-called war on drugs has disproportionately hurt women.  They say mandatory sentencing has reduced crime, helped break up drug rings and ended sentencing disparities.

Reformers hope states' recent efforts to reduce prison populations and spend more on drug treatment will help women. But they say women still remain an afterthought in the penal system.  For example, reformers say courts and prisons rarely recognize women's responsibility as mothers or the factors underlying their participation in crime, such as domestic abuse.  The justice system, women's advocates say, needs to think creatively about how to help female prisoners.  Meanwhile, in the juvenile system, girls often receive harsher punishments than boys who commit similar offenses.

March 5, 2017 in Mandatory minimum sentencing statutes, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Deep dive into litigation over Chicago “Stash House Stings”

Because the President of the United States has often expressed concerning about crime in Chicago and has tweeted about sending in the feds, I hope the Prez and his advisers find time to check out this recent lengthy Chicago Tribune article about some of the work of the feds in this city in the recent past.  The article, headlined "ATF sting operation accused of using racial bias in finding targets, with majority being minorities," merits a full read, and here is an extended taste:

For four years, Mayfield had been struggling to turn his life around after more than a decade in prison. To escape the street life, he moved to Naperville with his fiancee's family and managed to find a full-time job at a suburban electronics facility that paid 12 bucks an hour. It was there that a co-worker lured him into the robbery after weeks of effort, promising a big score.

Now, inside the police vehicle, the sounds of flash-bang grenades still ringing in his ears, Mayfield started to piece it all together. There was no stash house, no cartel drugs or associates to rob. It was a crime dreamed up by federal authorities and carried out with the help of Mayfield's co-worker to reel him in when he was at his most vulnerable.

Eight years later, Mayfield, 48, and dozens of others are at the center of a brewing legal battle in Chicago's federal court over whether the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives' signature sting operation used racial bias in finding its many targets.

A team of lawyers led by the University of Chicago Law School is seeking to dismiss charges against more than 40 defendants in Chicago. The undercover probes, a staple of the ATF since the mid-1990s, have ensnared hundreds of defendants across the country. A recently unsealed study by a nationally renowned expert concluded that ATF showed a clear pattern of racial bias in picking its targets for the drug stings. The disparity between minority and white defendants was so large that there was "a zero percent likelihood" it happened by chance, the study found.

The vast majority of those swept up in the stings in Chicago were minorities, and a close examination of the criminal backgrounds of some of those targeted raises questions about whether they were truly the most dangerous gun offenders whom ATF was aiming to remove from the street.

Some had trouble even coming up with guns to do the job — including one crew that after months of preparation managed to find only one World War I-era pistol with a broken handle that could barely fire a round. Others had no history of carrying out high-risk armed robberies — a key provision in the ATF playbook designed to make sure targets were legitimate, defense lawyers argued in recent court filings....

Earlier this month, federal prosecutors filed a lengthy motion vehemently disputing that minorities were unfairly targeted in the stash house cases, saying the expert report filed by the defense was "riddled with false assumptions that were designed to manufacture a racial disparity where none exists." The dispute sets up what could be an unprecedented hearing at the Dirksen U.S. Courthouse in the coming months involving a panel of district judges hearing the multiple criminal cases at once.

"It's almost like a criminal class action," said Alison Siegler, director of the Federal Criminal Justice Clinic at the University of Chicago Law School, which represents most of the defendants in the dozen cases they are seeking to be dismissed. "Judges are seeing this as a coordinated litigation. It's a very unusual situation."...

According to the ATF, stash house stings are a key part of the agency's national effort to target people who "show a propensity of doing harm to the public through violent behavior." Launched in Miami during the cocaine-war days of the early 1990s, the stings have been honed over the years and are run by experienced agents who use a tightly controlled playbook.

They typically begin when an informant provides the ATF information about a potential target who has expressed interest in taking part in a robbery. The informant then introduces the target to an undercover agent who poses as a disgruntled courier for a drug cartel and offers an opportunity to steal large quantities of drugs from a stash house guarded by men with guns.

In a series of conversations captured on undercover wire, the target is told if he is interested he must assemble an armed team to commit the robbery. The target and his crew are arrested after they show up on the day of the supposed crime. "At the time of arrest, the home invasion defendants are poised, at any moment, to invade a stash house, steal kilograms of cocaine guarded by armed cartel members, and in the process, kill or be killed," prosecutors wrote in their recent court filing.

In order to avoid arguments of entrapment in court, the stings are supposed to target only established robbery groups. ATF criteria also require that at least two of the participants have violent backgrounds and that all must be criminally active at the time the investigation is launched. Not only were the operations a boon for the ATF but the resulting prosecutions also netted eye-popping sentences — sometimes up to life in prison — in part because defendants were criminally liable for the amount of imaginary drugs they believed they were stealing. It didn't matter that the robbery was fake or that no drugs actually existed....

The lengthy sentences were just one pattern that raised red flags for the criminal defense bar. In case after case, the ATF stings seemed to be targeting only minorities. In early 2013, a handful of private attorneys and assistant federal defenders, all veterans at the Dirksen U.S. Courthouse, were so troubled by a stash house case they were defending that they asked the U.S. attorney's office for a complete list of all the defendants in similar cases sorted by race. Prosecutors rebuffed this admittedly unorthodox request. "ATF does not maintain statistics on the nature in question at either the local or national level," Assistant U.S. Attorney Philip Fluhr wrote in response, court records show.

The defense lawyers then asked the judge overseeing the case to order prosecutors to turn over detailed information on how the stash house stings are run and the race of the defendants who had been charged so far. They included their own research showing more minorities were targeted. Prosecutors strenuously objected. But a few months later, U.S. District Chief Judge Ruben Castillo allowed the discovery to go forward. "History has shown a continuing difficult intersection between the issue of race and the enforcement of our nation's criminal laws," wrote Castillo, concluding that the defense team had "made a strong showing of potential bias."

Similar motions in other stash house cases soon followed, but the effort to prove racial bias was being made case-by-case with no coordination. Then in 2014, the University of Chicago's Federal Criminal Justice Clinic agreed to focus all its efforts on the 12 stash house cases and their 43 defendants. This allowed the defense attorneys to address the alleged racial bias in a coordinated effort, a critical undertaking given the government's massive resources, the attorneys said....

As the movement to fight the stash house cases gathered steam among defense attorneys, the judiciary also weighed in with some key decisions. In November 2014, the full 7th Circuit U.S. Court of Appeals granted Mayfield a new trial in a rare decision that concluded Potts had "targeted Mayfield at a moment of acute financial need and against a backdrop of prolonged difficulty finding permanent, family-supporting work."

In a 2012 dissenting opinion as the case was winding through the court, appellate Judge Richard Posner had put an even finer point on it, referring to the stings as a "disreputable tactic" that used government informants to target people at a vulnerable time in their lives. Meanwhile, another ruling in July 2015 by the appellate court in Chicago resulted in the government turning over more data on the stash house stings sought by the defense. The ruling allowed the defendants to move ahead with what is believed to be the most thorough analysis of the stings anywhere in the country....

The debate is now potentially headed for a court hearing involving all defendants. The outcome could set precedent for judges in other states. "Courts tend to give law enforcement a lot of leeway," said University of California-Irvine law professor Katharine Tinto, a criminal law expert who has written extensively about the stash house stings. "… The fact that an expert is saying a federal law enforcement agency is discriminating on the basis of race is something everybody should be watching."

March 5, 2017 in Drug Offense Sentencing, Gun policy and sentencing, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)