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March 17, 2017

"Good, Bad and Wrongful Juvenile Sex: Rethinking the Use of Statutory Rape Laws Against the Protected Class"

The title of this post is the title of this new article authored by Anna High that a helpful reader flagged for me. Here is the abstract:

This article considers the question of whether statutory rape laws can and should be used against members of the class they were designed to protect.  Many commentators have argued that meaningfully consensual sex among similarly situated and sufficiently mature teenagers should be beyond the scope of strict liability rape laws, but the question becomes more fraught in the context of the “contested outer limits” of adolescent sexuality — sexual contact among children and adolescents that offends social norms, leads to harmful outcomes or appears to be exploitative.  What are the implications of using statutory rape laws against minors to target “bad sex”?

I contend that even in relation to “bad sex,” there are serious policy and constitutional objections to the use of statutory rape laws against a member of the class they are designed to protect.  In jurisdictions without all-encompassing age-gap provisions, the response to sex among adolescents needs to be reformulated to ensure that the use of statutory rape laws against minors is confined to cases involving wrongful, as opposed to mere bad, sex, and is predicated on a clear and objective definition of exploitation, as opposed to mere fornication, as the punitive target.

March 17, 2017 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (13)

Capital debates in central Florida after new prosecutor says she will no longer bring capital charges

This lengthy local article, headlined "Gov. Scott appoints special prosecutor after Ayala says she won't pursue death penalty," reports on a set of interesting developments in the heart of Florida concerning the heart of prosecutorial discretion and application of the death penalty.  Here are the details:

Gov. Rick Scott on Thursday removed Orange-Osceola State Attorney Aramis Ayala from the case of accused cop killer Markeith Loyd after she announced that she would not pursue the death penalty in his or any other case during her tenure.

In an executive order, Scott gave the case to Lake County State Attorney Brad King. “Earlier today, I called on State Attorney Ayala to immediately recuse herself from this case,” Scott said in a statement.  “She informed me this afternoon that she refuses to do that. She has made it clear that she will not fight for justice, and that is why I am using my executive authority to immediately reassign the case.”  Scott cited a state law allowing Florida’s governor to appoint a different prosecutor if he finds a “good and sufficient reason” to take it away from the original prosecutor.

Ayala issued a statement late Thursday, implying that her office would abide by Scott’s order. “Upon receipt of any lawful order, my office will follow that order and fully cooperate to ensure the successful prosecution of Markeith Loyd,” she said.

Ayala created a firestorm of criticism Thursday morning when she announced she would not seek the death penalty against Loyd or anyone else. “I have determined that doing so is not in the best interest of the community or the best interest of justice,” she said.

During a Thursday afternoon press conference, law enforcement leaders and families of victims expressed disappointment in Ayala’s intentions. Orlando Deputy Police Chief Robert Anzueto stood in front of Clayton’s widower, Seth Clayton, and spoke on his behalf. “My closure will be when Markeith Loyd is six-feet under,” Clayton told Anzueto....

Ayala’s announcement was a surprise and a position she had not made public before, despite a five-month campaign for public office, during which she was repeatedly asked about her stance. It also ran counter to information her employees had provided the Orlando Sentinel as recently as Tuesday.

Reaction came swiftly from state and local law enforcement officials, who were sharply critical. Attorney General Pam Bondi called the announcement “dangerous” and “a neglect of duty.”

But Ayala’s decision was heralded by death penalty opponents. “Ending use of the death penalty in Orange County is a step toward restoring a measure of trust and integrity in our criminal justice system,” said Adora Obi Nweze, president Florida State Conference NAACP. Orlando pastor Gabriel Salguero said, “By naming a broken program, Ms. Ayala creates hope in the community for working together to find better alternatives." Salguero leads the Calvario City Church and is president of the National Latino Evangelical Coalition....

Law enforcement officials, meanwhile, expressed their anger with the decision. Demings said he supported Scott’s decision to take the case away from Ayala. “To put it bluntly, the law enforcement officers of Central Florida are outraged,” Demings said....

State attorneys have wide discretion in who to charge with a crime, what charge to file and what penalty to seek. State law does not require them to seek the death penalty.  Ayala, 42, has been state attorney for Orange and Osceola counties since Jan. 3.  She upset incumbent Jeff Ashton in a primary election in August with the help of $1.4 million in donations from a political action committee with ties to billionaire George Soros, a liberal activist.

Ashton said Thursday that when Ayala worked for him, she did not oppose the death penalty. He called her newly-declared position “ridiculous.”...  When he was her boss, she was assigned the capital murder case of David Lewis Payne, who’s accused of abducting his ex-girlfriend, putting her in the trunk of her car then killing her in 2015. “She came to me. She was really excited because she got her first death penalty case,” he said of Ayala.

During her news conference, Ayala cited several reasons she will not pursue the death penalty.  Studies have shown, she said, that it provides no public safety benefits, that it is not a deterrent and that it winds up costing the state more than cases in which a defendant is sentenced to life in prison. It also gives victims’ families false hope, she said.

“Some victims will support and some will surely oppose my decision, but I have learned that death penalty traps many victims’ families in decades long cycle of uncertainty,” she said. “ … I cannot in good faith look a victim’s family in the face and promise that a death sentence handed down in our courts will ever result in execution.”...

Former State Attorney Lawson Lamar, who served six terms prior to Ashton, and before that was Orange County Sheriff, had this reaction to Ayala’s announcement: “I, frankly, was flabbergasted. … When you don’t have a death penalty, bad things happen.” He predicted it would mean more homicides in Orange and Osceola counties. Murders, rapists and criminals whose crimes carry a life sentence now have an incentive to kill witnesses, knowing that they face no greater penalty, he said.

“I’ve been telling people, ‘Give Aramis a chance. … She’s smart. She’s well spoken.’ I think this is a big mistake. I hope the backlash from it causes her to reconsider, because in life, as an elected official, you’re supposed to protect, defend and represent the people.”

March 17, 2017 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (7)

Taking a critical perspective on the work of former US Attorney for SDNY Preet Bharara

David Patton, executive director of the Federal Defenders of New York, penned this notable commentary for the Daily News concerning the work of fired SDNY US Attorney Preet Bharara.  The piece is headlined "An honest assessment of Preet Bharara's record: Harsh prosecutions put more African-Americans and Hispanics behind bars," and here are excerpts:

Last week the U.S. attorney for the Southern District of New York, Preet Bharara, was fired by President Trump, and the news media rushed to characterize his seven-year tenure.  Was he the "sheriff of Wall Street" for his insider trading prosecutions, a "showy pragmatist" for his affinity for television cameras, or the drainer of political swamps for his political corruption cases?  At least in part, he was surely all of those things.

But none of the tags do much to describe the actual work of his office and the overwhelming number of prosecutions it brings that have nothing to do with Wall Street or Albany.  Federal criminal cases rarely involve the rich or powerful.  Consistent with the rest of the country, 80% of federal defendants in the Southern District of New York are too poor to hire a lawyer.  Seventy percent are African-American or Hispanic.  The most commonly prosecuted offense type, by far, is drugs.

Last year, 45% of all federal criminal prosecutions in the Southern District were for drugs.  Two other leading offense types are firearms and immigration. The firearms cases are mostly gun possession cases transferred from state prosecutions in the Bronx.  They arise when NYPD officers search a car, apartment or person and claim they find a gun. Those arrested are plucked out of state court and brought to federal court for the express purpose of imposing lengthier sentences.  The immigration cases, so-called "illegal re-entry" cases, are prosecutions of people who were previously deported from the United States and came back.  Depending on their criminal history they typically face anywhere from two to seven years in prison before being removed from the United States again.

Bharara surely deserves credit for his efforts to clean up the financial industry and the political system.  But federal prosecutors should be judged primarily on how wisely, or not, they use the awesome power of their office to impose the many years of imprisonment on the thousands of people they choose to prosecute.  

And choose to prosecute they do. Unlike state and local prosecutors who largely react to police investigations and arrests, federal prosecutors have enormous discretion to decide who and what to prosecute.  Their jurisdictions are wide-ranging and overlapping, and many of the people they charge would otherwise be prosecuted in state court under less punitive laws.

Judging Bharara by those standards, his tenure was decidedly mixed.  His office greatly increased the prosecution of poor people of color using sprawling conspiracy and racketeering statutes to charge many low level drug dealers and addicts together with bigger players in the same indictments.  Some of the people charged were already serving time in state prisons for the same conduct.  Many others were caught up in "sting" operations in which the criminal conduct was initiated by agents and informants.

He also continued the programs begun by his predecessors in the Bush administration of prosecuting people for street crimes that were once considered the exclusive province of state courts.  Once again, those charges are brought almost entirely against poor people of color from the Bronx.  And across the board in drug and immigration cases, his office too often sought unnecessarily severe sentences....

When we evaluate the performance of top prosecutors, we should pay attention to whether they advance the goals of maintaining public safety while also reducing unnecessary and unequal terms of punishment.  And we should spend a lot less time concerned about how they handle the small sliver of cases that make the headlines.

March 17, 2017 in Criminal justice in the Obama Administration, Federal Sentencing Guidelines, Offense Characteristics, Who Sentences? | Permalink | Comments (3)

Eleventh Circuit panel declares Alabama murderer incompetent to be executed

A panel of the Eleventh Circuit on Wednesday reached the rare conclusion that an Alabama death row prisoner was not competent to be executed.  The majority opinion authored by Judge Martin in Madison v. Commissioner, No. 16-12279 (11th Cir. March 15, 2017) (available here), gets started this way:  

Thirty years ago, the Supreme Court held that the Eighth Amendment prohibits the execution of a person who is incompetent.  Ford v. Wainwright, 477 U.S. 399, 409–10, 106 S. Ct. 2595, 2602 (1986).  The Court has since clarified that a person cannot be executed if he lacks a “rational understanding” of the reason for his execution. Panetti v. Quarterman, 551 U.S. 930, 954–60, 127 S. Ct. 2842, 2859–62 (2007).  This standard requires the prisoner to be able to rationally understand the connection between the crime he committed and the punishment he is to receive.  See Ferguson v. Sec’y, Florida Dep’t of Corr., 716 F.3d 1315, 1336 (11th Cir. 2013).  The Supreme Court told us that if the prisoner does not understand this connection, “the punishment can serve no proper purpose” and cannot be carried out. Panetti, 551 U.S. at 960, 127 S. Ct. at 2862.

This habeas petitioner, Vernon Madison, is a 66-year-old man on death row for the murder of a police officer over three decades ago.  In recent years, Mr. Madison has suffered strokes resulting in significant cognitive and physical decline.  His lawyers argue here that he is mentally incompetent to be executed under Ford and Panetti.  Finding that Mr. Madison had made a substantial threshold showing of incompetency, an Alabama trial court held a competency hearing.  At the hearing, Mr. Madison presented unrebutted testimony from Dr. John Goff that his strokes caused major vascular disorder (also known as vascular dementia) and related memory impairments and that, as a result, he has no memory of committing the murder — the very act that is the reason for his execution.  To the contrary, Mr. Madison does not believe he ever killed anyone. Dr. Goff testified that due to his memory impairments, Mr. Madison does not have a rational understanding of why the state is seeking to execute him.  The State presented expert testimony from Dr. Karl Kirkland. Dr. Kirkland testified that Mr. Madison was able to accurately discuss his legal appeals and legal theories with his attorneys and — on pretty much this basis alone — concluded that Mr. Madison has “a rational understanding of [his] sentence.”  Accepting the testimony of Dr. Kirkland, the Alabama trial court decided that Mr. Madison is competent to be executed.  Mr. Madison argues that the trial court’s decision relied on an unreasonable determination of the facts and involved an unreasonable application of the law. We agree.

In so holding, we are mindful of the great deference due to state court decisions on federal habeas review, particularly when the state court is applying a general standard like the one in Panetti.  See Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 786 (2011) (“The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” (quotation omitted)).  But “even a general standard may be applied in an unreasonable manner.” Panetti, 551 U.S. at 953, 127 S. Ct. at 2858. Panetti may set out a general standard for competency, but the focus of the inquiry is clear. Panetti doesn’t ask whether the prisoner can talk about the history of his case or legal theories with his attorneys.  Instead, Panetti requires courts to look at whether the prisoner is able to rationally understand the connection between the crime he committed and the punishment he is to receive. See Panetti, 551 U.S. at 960, 127 S. Ct. at 2862.  One of the experts testified that due to a mental disorder, Mr. Madison was not able to make this connection.  The other expert never addressed this question at all. This record is therefore wholly insufficient to support the trial court’s decision.  We conclude that the state court’s decision that Mr. Madison is competent to be executed rested on an unreasonable determination of the facts and involved an unreasonable application of Panetti. We therefore reverse the District Court’s denial of habeas relief.

A dissent authored by Judge Jordan gets started this way:

After reviewing the record, I believe that Vernon Madison is currently incompetent.  I therefore do not think that Alabama can, consistent with the Constitution, execute him at this time for his murder of a police officer three decades ago. See generally Panetti v. Quarterman, 551 U.S. 930, 958 (2007) (explaining that a state cannot put to death a prisoner who “cannot reach a rational understanding of the reason for the execution”). But Congress has chosen to generally prohibit federal courts from adjudicating constitutional claims anew on habeas review, so Mr. Madison’s competency (or lack thereof) is not our initial call to make. Under the restrictive standards we are required to apply, see 28 U.S.C. § 2254(d), and given the way we interpreted Panetti in Ferguson v. Secretary, 716 F.3d 1315 (11th Cir. 2013), I do not think Mr. Madison can obtain habeas relief.

March 17, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

March 16, 2017

New Sentencing Project report on "Immigration and Public Safety"

Via email, I got word that the Sentencing Project has released this new report discussing research about the impact of immigration on public safety. Here is the report's executive summary:

Foreign-born residents of the United States commit crime less often than native-born citizens.  Policies that further restrict immigration are therefore not effective crime-control strategies.  These facts — supported by over 100 years of research — have been misrepresented both historically and in recent political debates.

Starting from his first day as a candidate, President Donald Trump has made demonstrably false claims associating immigrants with criminality.  As president, he has sought to justify restrictive immigration policies, such as increasing detentions and deportations and building a southern border wall, as public safety measures.  He has also linked immigrants with crime through an Executive Order directing the Attorney General to establish a task force to assist in “developing strategies to reduce crime, including, in particular, illegal immigration, drug trafficking, and violent crime,” and by directing the Department of Homeland Security to create an office to assist and publicize victims of crimes committed by immigrants.

By surveying key research on immigration and crime, this report seeks to enable the public and policymakers to engage in a more meaningful policy debate rooted in facts. Immigrants’ impact on public safety is a well-examined field of study.

A rigorous body of research supports the following conclusions about the recent impact of immigrants in the United States:

1. Immigrants commit crimes at lower rates than native-born citizens.

2. Higher levels of immigration in recent decades may have contributed to the historic drop in crime rates.

3. Police chiefs believe that intensifying immigration law enforcement undermines public safety.

4. Immigrants are under-represented in U.S. prisons.

March 16, 2017 in National and State Crime Data, Offender Characteristics | Permalink | Comments (7)

"Technological Incarceration and the End of the Prison Crisis"

The title of this post is the title of this notable new article now available via SSRN authored by Mirko Bagaric, Dan Hunter and Gabrielle Wolf.  Here is the abstract:

The United States imprisons more of its people than any nation on Earth, and by a considerable margin.  Criminals attract little empathy and have no political capital.  Consequently, it is not surprising that, over the past forty years, there have been no concerted or unified efforts to stem the rapid increase in incarceration levels in the United States. Nevertheless, there has recently been a growing realization that even the world’s biggest economy cannot readily sustain the $80 billion annual cost of imprisoning more than two million of its citizens.  No principled, wide-ranging solution has yet been advanced, however.  To resolve the crisis, this Article proposes a major revolution to the prison sector that would see technology, for the first time, pervasively incorporated into the punishment of criminals and result in the closure of nearly all prisons in the United States.

The alternative to prison that we propose involves the fusion of three technological systems.  First, offenders would be required to wear electronic ankle bracelets that monitor their location and ensure they do not move outside of the geographical areas to which they would be confined.  Second, prisoners would be compelled to wear sensors so that unlawful or suspicious activity could be monitored remotely and by computers.  Third, conducted energy devices would be used remotely to immobilize prisoners who attempt to escape their areas of confinement or commit other crimes.

The integrated systems described in this Article could lead to the closure of more than ninety-five percent of prisons in the United States.  We demonstrate that the technological and surveillance devices can achieve all of the appropriate objectives of imprisonment, including both the imposition of proportionate punishment and also community protection.

In our proposal, only offenders who have committed capital offenses or their equivalents, or who attempt to escape from technological custody would remain in conventional bricks-and-mortar prisons.  As a result, our proposal would convert prisons from a major societal industry to a curious societal anomaly.  If these reforms are implemented, the United States would spend a fraction of the amount currently expended on conventional prisons on a normatively superior mechanism for dealing with society’s criminals.

March 16, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Technocorrections | Permalink | Comments (2)

Focused look at midazolam as the latest (but not greatest) execution protocol drug

Earlier this week, the New York Times had this extended article about a recent development in modern execution protocols. The piece is headline "When a Common Sedative Becomes an Execution Drug," and here are excerpts:

[D]ecades after the drug, known as midazolam, entered the market, a product more often used during colonoscopies and cardiac catheterizations has become central to executions around the country and the debate that surrounds capital punishment in the United States....

The most recent controversy is the extraordinary plan in Arkansas to execute eight inmates in 10 days next month. The state is racing the calendar: Its midazolam supply will expire at the end of April, and given the resistance of manufacturers to having the drug used in executions, Arkansas would most likely face major hurdles if it tried to restock.

In Arkansas, where no prisoner has been put to death since November 2005, midazolam is planned as the first of three drugs in the state’s lethal injections. The drug is intended to render a prisoner unconscious and keep him from experiencing pain later in the execution, when other drugs are administered to stop the breathing and heart.

Supporters of midazolam’s use, which the United States Supreme Court upheld in a case from Oklahoma less than two years ago, say it is a safe and effective substitute for execution drugs that have become difficult to purchase. Death penalty critics, citing executions that they say were botched, argue that midazolam puts prisoners at risk of an unconstitutionally painful punishment because the condemned may be insufficiently numbed to the agony caused by the execution drugs.

A major legal test is in Ohio, where a federal appeals court heard arguments last week about the drug’s future there. “The states will be watching the legal proceedings out of Ohio, but also the on-the-ground experiences out of Arkansas, Virginia and elsewhere,” said Megan McCracken, who specializes in lethal injection litigation at the law school of the University of California, Berkeley. “Time and time again when you see executions with midazolam, you see, at best, surprises and, at worst, very bad executions.”

States have resisted such critiques, and during arguments last week before a federal appeals court in Cincinnati, Eric Murphy, the Ohio state solicitor, said midazolam’s use in a three-drug protocol “does not create a substantial risk of pain that is sure or very likely to occur.”...

[T]he drug’s critics have found limited solace in the courts, including the Supreme Court, which last month declined to hear cases from Alabama and Arkansas, both of which include midazolam in their lethal injection protocols. Those moves amounted to reinforcement of a ruling in 2015, when Justice Samuel A. Alito Jr., writing for a divided court, noted that the court had found “that the Constitution does not require the avoidance of all risk of pain.” He continued: “After all, while most humans wish to die a painless death, many do not have that good fortune. Holding that the Eighth Amendment demands the elimination of essentially all risk of pain would effectively outlaw the death penalty altogether.”

Indeed, some supporters of the death penalty, including people who have witnessed executions that included midazolam, have defended lethal injections and any pain they might cause violent offenders. Proponents also acknowledge that midazolam is far from a drug of choice for executions, but they blame abolitionists for effectively leaving states with limited choices. “No state would use it if they could get the barbiturates,” said Kent S. Scheidegger, the legal director of the Criminal Justice Legal Foundation. “The opponents have created the situation where states are forced to use a drug that is not the optimum.”

March 16, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (10)

March 15, 2017

AG Sessions talks again about "the challenge of violent crime and drugs" and about support for law enforcement

Jeff-sessions-attorney-general-630x354The Department of Justice now has posted here an extended speech delivered by Attorney General Jeff Sessions today in Richmond, Virginia (which just happens to be where I am headed tomorrow for a faculty workshop).  Those who have been following what AG Sessions has been saying in recent months (and really throughout his whole career) will likely not find anything all that new or surprising in this latest speech.  Nevertheless, I still found the entire speech and especially the following passages worth flagging in this space.  And I have highlight two particular sentences in the discussion of drugs that I have not previously seen and that could and perhaps should capture a lot of attention:

First, we should keep in mind some context. Overall, crime rates in our country remain near historic lows. Murder rates are half of what they were in 1980.  The rate of violent crime has fallen by almost half from its peak....  In the past four decades, we have won great victories against crime in America. This happened under leadership from both political parties, and thanks above all to the work of prosecutors and good police using data-driven methods and professional training.  Hundreds of thousands of Americans are alive today as a result.

But in the last two years, we’ve seen warning signs that this progress is now at risk.  The latest FBI data tell us that from 2014 to 2015, the violent crime rate in the U.S. increased by more than 3 percent — the largest one-year increase since 1991. The murder rate increased 10 percent — the largest increase since 1968.  And all of this is taking place amid an unprecedented epidemic of heroin and opioid abuse....

My fear is that this surge in violent crime is not a “blip,” but the start of a dangerous new trend.  I worry that we risk losing the hard-won gains that have made America a safer and more prosperous place.  While we can hope for the best, we can’t afford to be complacent.  When crime rates move in the wrong direction, they can move quickly....

Last month the President gave us clear direction, issuing three executive orders that direct the federal government to reduce crime and restore public safety. This task will be a top priority of the Department of Justice during my time as Attorney General. I’d like to talk briefly about how we’re tackling this challenge.

First, we’re making sure the federal government focuses our resources and efforts on this surge in violent crime.  Two weeks ago, I announced the formation of a Department of Justice Task Force on Crime Reduction and Public Safety. It includes crime reduction experts from throughout the Department of Justice, including the heads of the FBI, the ATF, the DEA and the U.S. Marshals Service.  The task force will evaluate everything we are doing at the federal level.

Second: We need to use every lawful tool we have to get the most violent offenders off our streets. In recent years, we have seen a significant shift in the priority given to prosecuting firearms offenders at the federal level.  This trend will end.  This Department of Justice will systematically prosecute criminals who use guns in committing crimes....

Third: To turn back this rising tide of violent crime, we need to confront the heroin and opioid crisis in our nation — and dismantle the transnational cartels that bring drugs and violence into our neighborhoods.

Our nation is in the throes of a heroin and opioid epidemic.  Overdose deaths more than tripled between 2010 and 2014.  According to the CDC, about 140 Americans on average now die from a drug overdose each day.  That means every three weeks, we are losing as many American lives to drug overdoses as we lost in the 9/11 attacks.  Illegal drugs are flooding across our southern border and into cities across our country, bringing violence, addiction, and misery.  We have also seen an increase in the trafficking of new, low-cost heroin by Mexican drug cartels working with local street gangs.  As the market for this heroin expands, gangs fight for territory and new customers and neighborhoods are caught in the crossfire.

There are three main ways to fight the scourge of drugs: criminal enforcement, treatment and prevention.  Criminal enforcement is essential to stop both the transnational cartels that ship drugs into our country, and the thugs and gangs who use violence and extortion to move their product.  One of the President’s executive orders directed the Justice Department to dismantle these organizations and gangs — and we will do just that.

Treatment programs are also vital. But treatment often comes too late to save people from addiction or death.  So we need to focus on the third way we can fight drug use: preventing people from ever taking drugs in the first place.

I realize this may be an unfashionable belief in a time of growing tolerance of drug use.  But too many lives are at stake to worry about being fashionable.  I reject the idea that America will be a better place if marijuana is sold in every corner store.  And I am astonished to hear people suggest that we can solve our heroin crisis by legalizing marijuana — so people can trade one life-wrecking dependency for another that’s only slightly less awful. Our nation needs to say clearly once again that using drugs will destroy your life.

In the ’80s and ’90s, we saw how campaigns stressing prevention brought down drug use and addiction.  We can do this again. Educating people and telling them the terrible truth about drugs and addiction will result in better choices. We can reduce the use of drugs, save lives and turn back the surge in crime that inevitably follows in the wake of increased drug abuse.

Finally: The federal government alone cannot meet the challenge of violent crime and drugs — so we need to protect and support our brave men and women in law enforcement. About 85 percent of all law enforcement officers in our nation are not federal, but state and local. These are the men and women on the front lines — the ones doing most of the tough and often dangerous work that keeps our neighborhoods safe....

The new challenge of violent crime in our nation is real — and the task that lies before us is clear. We need to resist the temptation to ignore or downplay this crisis. Instead, we must tackle it head-on, to ensure justice and safety for all Americans. We will enforce our laws and put bad men behind bars. We will fight the scourge of drug abuse. And we will support the brave men and women of law enforcement, as they work day and night to protect us. Together, let us act to meet this challenge, so that our children will not look back and say that we let slip from our grasp all we had done to make America a safer place.

I find it quite interesting and significant that AG Sessions, in the first sentence highlighted above, has highlighted the severity of the current US drug problem in term of the number of deaths caused by the worst and deadliest terrorist attack in US history.  The decision to frame the problem in these terms reveals just how seriously the Attorney General sees the problem, and I am in some sense inclined to respect and applaud this framing in part because I fear a lot of people who have not been directly touched by the modern opioid epidemic do not fully appreciate how many lives are being lost to it.

Ironically, though, the kind of wise intensity I see reflected in the first sentence highlighted above is undercut but what strikes me as a misguided intensity reflected in the second sentence highlighted above.  Because tens of thousands of individuals are dying for opioid overdoses and nobody dies from a marijuana overdoes, it make a whole lot of sense to me that a whole lot of people would see a whole lot of value in encouraging people to trade an opioid dependency for a marijuana dependency.  (And this simple analysis, of course, leaves out the statistically reality that the vast majority of people who use marijuana do not become dependent on it.) 

March 15, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Gun policy and sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (20)

Noting how prisons serve as a kind of public works program in rural areas

This recent Business Insider commentary authored by John Eason provides an important reminder of some economic realities integral to the modern American prison system. The piece is headlined "The prison business is booming in rural America and there's no end in sight," and here are excerpts:

While much has been written about mass incarceration, less is known about the prison building boom and the role it plays in slowing reform of the criminal justice system.  As I explain in my book, "Big House on the Prairie," the number of prisons in the US swelled between 1970 and 2000, from 511 to nearly 1,663.  Prisons constructed during that time cover nearly 600 square miles, an area roughly half the size of Rhode Island. More than 80 percent of these facilities are operated by states, approximately 10 percent are federal facilities and the rest are private.

The prison boom is a massive public works program that has taken place virtually unnoticed because roughly 70 percent of prisons were built in rural communities. Most of this prison building has occurred in conservative southern states like Florida, Georgia, Oklahoma and Texas.  Much of how we think about prison building is clouded by the legacy of racism and economic exploitation endemic to the US criminal justice system. Many feel that prison building is the end product of racist policies and practices, but my research turned up a more complicated relationship.

People of color have undoubtedly suffered from the expansion of prisons, where they are disproportionately locked up, but they have also benefited. Blacks and Latinos are overrepresented among the nation’s 450,000 correctional officers.  Prisons are also more likely to be built in towns with higher black and Latino populations. Many may be surprised to learn that residents of these often distressed rural communities view local prisons in a positive light....

Because rural communities have grown increasingly dependent on prisons, they will not be easily convinced to give them up.  My research shows that for many struggling rural communities plagued by problems most associate with urban neighborhoods — poverty, crime, residential segregation, de-industrialization and failing schools — prisons offer a means of survival. Prisons provide a short-term boost to the local economy by increasing median family income and home value while reducing unemployment and poverty....

It doesn’t look like the footprint of prisons will be shrinking any time soon. Given our current political climate, it’s more likely we will see more prisons built. Weaning rural communities off the prison economy will mean considering alternative investment strategies like green industries. If we do not provide creative alternatives to depressed rural communities, we stand little chance in reducing their over-reliance on prisons.

March 15, 2017 in Prisons and prisoners, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

March 14, 2017

Split en banc Eleventh Circuit writes at length restricting habeas authority in ACCA case

The Eleventh Circuit has a massive new en banc opinion about federal habeas law in McCarthan v. Director of Goodwill Industries-Suncoast, Inc., No. 12-14989 (11th Cir. March 14, 2017) (available here). The start of the majority opinion in McCarthan, which was authored by Judge Willaim Pryor, should provide enough context for interested readers to figure out why this McCarthan decision engendered a bunch of concurring and dissenting opinions. Here is the start of a whole set of opinions that together runs nearly 200 pages:

This appeal requires us to decide whether a change in caselaw entitles a federal prisoner to an additional round of collateral review of his sentence.  Congress gives a federal prisoner like Dan McCarthan one opportunity to move to vacate his sentence unless that remedy is “inadequate or ineffective to test the legality of his detention.” 28 U.S.C. § 2255(e).  When McCarthan pleaded guilty to being a felon in possession of a firearm, 18 U.S.C. § 922(g), he understood that the district court would enhance his sentence under the Armed Career Criminal Act, id. § 924(e).  He did not appeal that sentence.  When McCarthan later moved to vacate his sentence, he again said nothing about the enhancement. After foregoing those opportunities to complain about the enhancement of his sentence, McCarthan petitioned for a writ of habeas corpus.  McCarthan argues that his earlier motion to vacate was inadequate to test his objection to his sentence enhancement because our caselaw about the Armed Career Criminal Act has changed. But because the motion to vacate gave McCarthan an opportunity to challenge his sentence enhancement, his remedy was not inadequate or ineffective to test the legality of his sentence, regardless of any later change in caselaw.

For eighteen years, our Court has maintained that a change in caselaw may trigger an additional round of collateral review, see Wofford v. Scott, 177 F.3d 1236 (11th Cir. 1999), but our precedents have ignored the text of the statute. As we struggled to apply our precedents, we employed a five-factor test and granted relief only twice.  See Mackey v. Warden, FCC Coleman-Medium, 739 F.3d 657 (11th Cir. 2014); Bryant v. Warden, FCC Coleman-Medium, 738 F.3d 1253 (11th Cir. 2013).  Because our precedents have failed to adhere to the text of section 2255(e), have not incurred significant reliance interests, and have proved unworkable, today we overrule them.  We join the Tenth Circuit in applying the law as Congress wrote it, see Prost v. Anderson, 636 F.3d 578 (10th Cir. 2011) (Gorsuch, J.), and hold that a change in caselaw does not make a motion to vacate a prisoner’s sentence “inadequate or ineffective to test the legality of his detention,” 28 U.S.C. § 2255(e).  We affirm the dismissal of McCarthan’s petition for a writ of habeas corpus.

March 14, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Prison Policy Initiative releases 2017 version of "Mass Incarceration: The Whole Pie"

Pie2017The Prison Policy Initiative has an updated version of its terrific incarceration "pie" graphic and report, which is available at this link (along with a larger version of the pie graphic reprinted here). Here is part of the report's introductory text and subsequent discussion:

Wait, does the United States have 1.3 million or more than 2 million people in prison? Are most people in state and federal prisons locked up for drug offenses? Frustrating questions like these abound because our systems of confinement are so fragmented and controlled by various entities. There is a lot of interesting and valuable research out there, but varying definitions make it hard — for both people new to criminal justice and for experienced policy wonks — to get the big picture.

This report offers some much needed clarity by piecing together this country’s disparate systems of confinement. The American criminal justice system holds more than 2.3 million people in 1,719 state prisons, 102 federal prisons, 901 juvenile correctional facilities, 3,163 local jails, and 76 Indian Country jails as well as in military prisons, immigration detention facilities, civil commitment centers, and prisons in the U.S. territories. And we go deeper to provide further detail on why people are locked up in all of those different types of facilities.

Pie chart showing the number of people locked up on a given day in the United States by facility type and the underlying offense using the newest data available in March 2017.Pie chart showing the number of people locked up on a given day in the United States in jails, by convicted and not convicted status, and by the underlying offense, using the newest data available in March 2017. Graph showing the number of people in jails from 1983 to 2014 by whether they have been convicted or not. The number of convicted people stopped growing in 1999, but the number of unconvicted people continues to grow.Graph showing, for the years 2007 to 2015, the number of people ~~ 10.9 to 13.6 million ~~ a year who are admitted to jail per year and the number of people ~~ about 700,000 to 800,000 ~~ who are in jail on a given day.Graph showing the incarcerated populations in federal prisons, state prisons, and local jails from 1925 to 2015. The state prison and jail populations grew exponentially in the 1980s and 1990s, and began to decline slowly after 2008, while federal prison populations have always been smaller and show less change over time.

While this pie chart provides a comprehensive snapshot of our correctional system, the graphic does not capture the enormous churn in and out of our correctional facilities and the far larger universe of people whose lives are affected by the criminal justice system. Every year, 641,000 people walk out of prison gates, but people go to jail over 11 million times each year. Jail churn is particularly high because most people in jails have not been convicted. Some have just been arrested and will make bail in the next few hours or days, and others are too poor to make bail and must remain behind bars until their trial. Only a small number (187,000 on any given day) have been convicted, generally serving misdemeanors sentences under a year....

With a sense of the big picture, a common follow-up question might be: how many people are locked up for a drug offense? We know that almost half a million people are locked up because of a drug offense. The data confirms that nonviolent drug convictions are a defining characteristic of the federal prison system, but play only a supporting role at the state and local levels. While most people in state and local facilities are not locked up for drug offenses, most states’ continued practice of arresting people for drug possession destabilizes individual lives and communities. Drug arrests give residents of over-policed communities criminal records, which then reduce employment prospects and increase the likelihood of longer sentences for any future offenses.

All of the offense data presented comes with an important set of caveats. A person in prison for multiple offenses is reported only for the most serious offense so, for example, there are people in prison for “violent” offenses who might have also been convicted of a drug offense. Further, almost all convictions are the result of plea bargains, where people plead guilty to a lesser offense, perhaps of a different category or one that they may not have actually committed.

And many of these categories group together people convicted of a wide range of offenses. For example, “murder” is generally considered to be an extremely serious offense, but “murder” groups together the rare group of serial killers, with people who committed acts that are unlikely for reasons of circumstance or advanced age to ever happen again, with offenses that the average American may not consider to be murder at all. For example, the felony murder rule says that if someone dies during the commission of a felony, everyone involved can be as guilty of murder as the person who pulled the trigger. Driving a getaway car during a bank robbery where someone was accidentally killed is indeed a serious offense, but many may be surprised that this is considered murder.

March 14, 2017 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

Florida law now officially requires jury unanimity for death verdicts

Roughly fourteen months after the Supreme Court in Hurst found constitutional problems with the way Florida operationalized juries in its capital punishment scheme, and after some legislative and litigation fits and starts, the state's lawmakers have now reformed its system to require jury unanimity at sentencing.  This local article, headlined "Gov. Rick Scott signs new unanimous jury standard for death penalty into law," reports on the basics:

It now takes a unanimous jury to sentence someone to death in the state of Florida. Gov. Rick Scott on Monday night signed into law a new requirement that raises the jury standard for death penalty cases from 10-2.  The legal change was made necessary by a Florida Supreme Court ruling in October that found the state's sentencing laws unconstitutional.

The Legislature passed the new rules (SB 280) overwhelmingly last week.  The death penalty fix is the first major law passed and signed in the 2017 session.  Florida joins most other states in requiring unanimous juries....  "Our goal was that the death penalty cases proceed in an orderly manner under a law that was constitutional," Senate President Joe Negron, R-Stuart, said last week.

Scott's signature also allows prosecutors to move forward with cases in which they plan to seek the death penalty.  Uncertainty around the court's order in Hurst vs. Florida put a pause on new death sentences.

In passing the death penalty fix, the Legislature opted not to address the hundreds of existing death row inmates whose cases were decided under sentencing laws thrown out by the courts.  Rep. Chris Sprowls, R-Palm Harbor, a former prosecutor and the House Judiciary chairman, said he wanted to deal with this issue and left it up to the courts to handle existing death cases decided by a nonunanimous jury.  Some of those inmates have already been granted a new sentencing hearing.

Just three lawmakers voted against the death penalty fix: Two House Democrats, Joseph Geller of Aventura and Robert Asencio of Miami, who oppose the death penalty on moral grounds; and Republican Rep. Blaise Ingoglia of Spring Hill. His was a protest vote, Ingoglia said.  "With a unanimous jury, you need all 12," he said Friday.  "You can have one activist and one vote and prevent the death penalty from kicking in."

March 14, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

March 13, 2017

US Sentencing Commission releases 2016 Annual Report and Sourcebook of Federal Sentencing Statistics

Via email I received this cursory report on the publication of lots of federal sentencing data that is anything but cursory:

The United States Sentencing Commission’s 2016 Annual Report and 2016 Sourcebook of Federal Sentencing Statistics are now available online.

The Annual Report provides an overview of the Commission’s activities and accomplishments in fiscal year 2016.

The Sourcebook of Federal Sentencing Statistics presents tables, figures, and charts on selected district, circuit, and national sentencing data for fiscal year 2016. The Commission collected and analyzed data from approximately 315,000 court documents for nearly 68,000 federal criminal cases in the production of this year’s Sourcebook.

I am hoping to find time to churn over a lot of the data in these reports, but already from the start of the 2016 Annual Report these data items jumped out:

March 13, 2017 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (2)

A notable pitch (from a notable author) to look at criminal justice reform as a "women's issue"

The Hill today published this notable new commentary authored by Mia Love and Holly Harris under the headline "Criminal justice reform: A women’s issue." I recommend the piece in full, and here are excerpts:

The media has devoted a lot of ink and airtime to the sky-high incarceration rates here in the U.S., but sadly, that coverage often ignores a key demographic: women.  The female prison population has spiked in recent years, and since Wednesday marked International Women’s Day, we thought this would be a good time to shed more light on this disturbing trend.

Between 1980 and 2014, the number of women in prison grew by an alarming 700 percent — increasing at a rate 50 percent higher than men. Over the same period, the number of women in local jails has increased 14-fold. This impact falls disproportionately on African-American women, whose rate of imprisonment is double that of white women.

Those statistics are even more disheartening when you consider approximately 60 percent of women in prison are mothers. We need to take a serious look at what it means for those women — and the children they leave behind....

Women in the federal system are more likely to be incarcerated for a nonviolent offense.  Some 94 percent of women in federal prison are serving a sentence for nonviolent drug, property or public-order offenses, as well as 63 percent of women in state prisons.  Our system needs to do better addressing the root causes of these crimes and offering alternatives to incarceration for women who pose no grave threat to society.  We need to pursue policies that offer better access to community supervision programs and treatment instead of jail time for those with drug addictions....

While female incarceration declined 2 percentage points between 2014 and 2015, criminal-justice reform is still as critical as ever.  As the laboratories of democracy, red and blue states across our nation have enacted innovative reforms that have prioritized public safety while strengthening families, ultimately benefiting society as a whole.

We must pay more attention to the spike in female inmates and, more importantly, the emotional and financial costs of women in and out of prison.  As a society we are not only failing ourselves, we are failing our mothers, wives, and sisters.  For that reason — and so many others — we hope Congress moves comprehensive criminal-justice reform to the president’s desk in 2017.

Astute readers perhaps recall that Mia Love holds the notable distinction of being the first black Republican woman ever elected to Congress. As this post from 2014 after her election reveals, I had an inkling that Mia Love might be inclined to become an important voice in support of criminal justice reform.  This latest commentary suggests that inkling is proving accurate.

March 13, 2017 in Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9)

March 12, 2017

"Reassessing Prosecutorial Power Through the Lens of Mass Incarceration"

The title of this post is the title of this new and notable book review authored by Jeffrey Bellin. Here is the abstract:

Prosecutors have long been the Darth Vader of academic writing: mysterious, all-powerful and, for the most part, bad. This uber-prosecutor theme flows like the force through John Pfaff’s highly-anticipated new book, "Locked In: The True Causes of Mass Incarceration — and How to Achieve Real Reform."  The book concludes that police, legislators, and judges are not to blame for Mass Incarceration.  Instead, “the most powerful actors in the entire criminal justice system” (prosecutors) have used their “almost unfettered, unreviewable power to determine who gets sent to prison and for how long.”

Locked In’s data-driven thesis aligns neatly with the academic consensus.  If prosecutors are the most powerful actor in the criminal justice system, they must be responsible for its most noteworthy product — Mass Incarceration.  The only problem is that it probably isn’t right.  While Pfaff’s empirical findings have been embraced by the media, the legal academy, and even former President Obama, they are grounded in questionable data.  With these flaws exposed, the familiar villains of the Mass Incarceration story reemerge: judges and, above all, legislators.  This reemergence provides a very different focus for reforms designed to unwind Mass Incarceration.  It also says something profound about prosecutorial power.

Prosecutors possess substantial power to let people escape from an increasingly inflexible system. But decades of academic claims suggesting that prosecutors are equally powerful when acting in the opposite direction — to dictate sanctions — fold under scrutiny.  When it comes to imposing incarceration, prosecutorial power is largely contingent on the actions of other, more powerful criminal justice actors.

March 12, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Recommended reading, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Reviewing why a Justice Gorsuch "might be hard to pigeonhole on criminal justice issues"

We are now only a week from the start of confirmation hearings for Supreme Court nominee Neil Gorsuch, and this new extended AP article reviews Judge Gorsuch's record on the cases that I usually give the most attention.  The article is headlined "Gorsuch has ruled for police, and suspects, in crime cases," and here are excerpts:

Judge Neil Gorsuch wasn't convinced that a teenager who made burping sounds in a classroom should be arrested, handcuffed and taken to juvenile detention in a police car. Gorsuch said the 13-year-old student from Albuquerque, New Mexico, should have been able to sue the arresting officer for excessive force. His powerful dissent in the case last year offers a glimpse of how Gorsuch — a favorite among conservatives — might be hard to pigeonhole on criminal justice issues if he is confirmed to the Supreme Court....

During a decade on the federal appeals court in Denver, Gorsuch has raised concerns about intrusive government searches and seizures that he found to violate constitutional rights.  He generally has ruled against defendants appealing their convictions and those who claim they received unfair trials.  But he also has warned in writings and speeches about the danger of having too many criminal laws on the books.

"What happens to individual freedom and equality when the criminal law comes to cover so many facets of daily life that prosecutors can almost choose their targets with impunity?" he said in a 2013 speech.  That skepticism seems to align him with the late Justice Antonin Scalia, a strong believer in protecting people from overzealous police and prosecutors. Scalia at times sided with liberals in tossing out evidence that breached privacy rights and in strengthening the right to confront accusers in court.

Liberal groups are opposing Gorsuch's nomination, in part based on views that his overall record on criminal justice is too harsh.  "At a time when the abuses of our criminal justice system are becoming a national crisis, we cannot confirm a justice who does not understand the role of the Supreme Court to protect the most vulnerable among us," said a report from People for the American Way, a liberal advocacy group.

When Gorsuch has said there are too many criminal laws, he has often focused on business regulations, such as requirements that mattress sellers preserve mattress tags or that lobster importers use cardboard instead of plastic....

Some of his opinions have faulted police for seizing evidence in violation of the Fourth Amendment, which bars unreasonable searches.  In a case last year, Gorsuch parted from the two-judge majority in a ruling that said police had a right to walk onto a man's property to knock on the front door even though there were several "No Trespassing" signs in the yard.  Gorsuch mocked the majority's opinion, saying it gave government agents the right to "invade" a homeowner's property "whatever the homeowner may say or do about it."...

Paul Rothstein, a professor at Georgetown University Law Center, said Gorsuch appears to have a mixed record in criminal cases and "seems to call them as he sees them."  "I think his primary area of concern for the citizen is in the privacy of your home or your private belongings," Rothstein said. "He believes there is a private area and he's pretty strong about that."

Gorsuch has been less sympathetic to defendants in other rulings.  In a 2012 case, Gorsuch dissented from a majority opinion in which his colleagues sided with an Oklahoma man seeking to overturn his murder conviction due to an ineffective lawyer.  The lawyer had advised his client to reject a plea agreement that called for a 10-year sentence. Instead, the man went to trial, was convicted and sentenced to life in prison.

The majority said the lawyer's decision to reject the plea had "disastrous results" for his client.  But Gorsuch said the man's right to effective representation was not violated because he was later convicted in a fair trial.

A few prior related posts on Judge Gorsuch:

March 12, 2017 in Who Sentences? | Permalink | Comments (3)

NY Times editorial makes pitch for raising the age

This New York Times editorial, headlined "Crime and the Adolescent Brain," makes the case for moving up the age for adult court treatment. Here are excerpts:

Over the last decade, seven states — Connecticut, Illinois, Louisiana, Massachusetts, Mississippi, New Hampshire and South Carolina — have passed laws that channel most young offenders into juvenile courts, where they can receive counseling and support, instead of into adult courts and adult prisons, which are not equipped to deal with adolescents.

This wise approach has bypassed New York, which is one of only two states — the other being North Carolina — that automatically try 16-year-olds as adults. While New York lawmakers fear that raising the age for adult courts would make them seem “soft on crime,” some state legislatures are now considering proposals to raise the age to 21.

Connecticut’s experience is instructive. In 2007, it raised the age of adult prosecution from 16 to 18 as part of a package of criminal justice reforms. It moved most nonviolent infractions — things like shoplifting, drug possession and disorderly conduct — out of the formal court system and invested in counseling and intervention programs that allowed teenagers to avoid criminal records.

A 2016 report by the Malcolm Wiener Center for Social Policy at the Harvard Kennedy School found that raising the age for adult prosecution produced sharp reductions in arrests, court caseloads and incarceration costs. Sixteen-year-olds who are tried as juveniles are less likely to be rearrested than those tried as adults. And arrests for people under 18 dropped by an astonishing 68 percent while the crime rate has continued to decline....

Encouraged by these results, Gov. Dannel Malloy of Connecticut has introduced a bill that would include 18- to 20-year-olds who commit all but the most serious crimes under a new category, “young adult” offenders.... Both Massachusetts and Illinois are also considering bills that would channel most 18-, 19- and 20-year-old offenders into the juvenile system.

Setting the age for adult criminal responsibility at 16, as New York does, is inhumane.  New York’s record on this is doubly shameful because state lawmakers in 1962 settled on 16 temporarily when they could not agree on a definition of adulthood.  The Legislature promised to revisit the issue, but inertia set in.  Generations of young offenders were damaged, some irreparably, by this decision.  Surely, it’s time to correct this mistake.

March 12, 2017 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)

You be the federal sentencing judge: how long a prison term for convicted "Bridgegate" defendants?

22266537-mmmainAs I have often said in this space, I find I find high-profile, white-collar sentencing cases to be among the most interesting and dynamic because they often require a judge (and others) to balance and calibrate competing punishment theories and goals.  Because most white-collar offenders are not violent and often had a successful/productive life before getting into trouble, the need for severe punishment to incapacitate or specifically deter an offender from committing future crimes is often diminished.  But because potential white-collar offenders are likely influenced by the deterrent impact emerging from the punishment of others like them, and also because white-collar offenders typically have had a relatively advantaged background, one can reasonably believe that crime control and just punishment concerns justify throwing the book at any and all serious white-collar offenders.  

Against that backdrop, I am eager to hear various perspective on the upcoming federal sentencing of the two defendants discussed in this local New Jersey article headlined "What's at stake this week when Bridgegate defendants are sentenced." Here are the basics:

On paper, they could face up to 20 years in prison. Bill Baroni and Bridget Anne Kelly, once members of Gov. Chris Christie's inner circle who were convicted in November of conspiracy and fraud in connection with the Bridgegate scandal, are due to return to court Wednesday morning for sentencing.

While neither is expected to serve anywhere near the 20-year statutory maximum term under federal sentencing guidelines, the unusual nature of the charges in the case, including civil rights violations for interfering with the ability to travel, could have both looking at nearly four years in prison, say legal experts.

Baroni, 44, the Port Authority's former deputy executive director, and Kelly, also 44, a one-time deputy chief of staff to Gov. Chris Christie, were charged with helping orchestrate the shutdown of several local toll lanes at the George Washington Bridge in 2013 in a scheme of political retribution targeting the mayor of Fort Lee over his refusal to endorse the governor for re-election. After a seven-week trial, the two were found guilty.

Prosecutors, however, not only charged the two with conspiracy and fraud, but with violating the civil rights of those stuck in the massive traffic jams they created--which left Fort Lee frozen in gridlock for days. Those civil rights violations are now driving what could be an unusually harsh sentence, according to legal experts.

"Civil rights violations have always been treated severely by federal courts since historically they were used by the federal government to prosecute crimes that states were either unwilling or unable to prosecute," noted Robert Mintz, former deputy chief of the Organized Crime Strike Force of the U.S. Attorney's Office in New Jersey and a criminal defense attorney at McCarter & English.

The U.S. Attorney's office would not disclose the proposed sentencing range in Bridgegate case and attorneys for both Baroni and Kelly also declined comment, but the federal sentencing guidelines suggest both face upwards of 46 months, in large part due to the civil rights violations. U.S. District Judge Susan Wigenton, who presided over the Bridgegate trial, has sole discretion to set punishment.

While crimes carry statutory maximum penalties, federal judges for the most part follow set guidelines that outline a uniform sentencing policy for those convicted in the federal courts, so that individuals convicted of similar crimes generally serve the same sentence no matter where they were tried. "The guidelines are advisory only. But a lot of judges follow them very rigidly," observed Alan Ellis, a former president of the National Association of Criminal Defense Lawyers and a San Francisco attorney who specializes in sentencing and post-conviction matters.

Yet sometimes judges agree to significant departures from those guidelines. At sentencing last Monday, David Samson, the former Port Authority of New York and New Jersey chairman, faced up to 24 months in prison for bribery in connection with a shakedown of United Airlines. Instead, he walked out of court with just a year of house arrest.... Samson's guilty plea earned him a downward adjustment from the sentencing guidelines for his "acceptance of responsibility." A negotiated plea deal with the U.S. Attorney's office further limited the maximum term he faced.

"These two people went to trial," said Ellis of Baroni and Kelly. Those who go to trial are said to "pay rent on the courtroom," because they receive no downward adjustment at sentencing if they are found guilty....

For Baroni and Kelly, who wrote the now-infamous "time for traffic problems" message that served as a smoking gun to prosecutors, the civil rights violations will represent the most serious violations to be addressed at sentencing. "In this case, the facts are so unique that it doesn't fit the typical pattern of these type of violations so it is hard to predict how the court will factor in that violation," said Mintz. "In the end, the sentence that these defendants receive will likely turn more on how the judge views the criminal conspiracy--whether the conduct was a calculated scheme that truly endangered the public or was merely a misguided act of political retribution that went horribly awry."

Whatever the sentence, defense attorneys have already said the plan to appeal the case.

Prior related post:

March 12, 2017 in Booker in district courts, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing | Permalink | Comments (19)