April 1, 2017
"Civilizing Criminal Settlements"
The title of this post is the title of this interesting new article authored by Russell Gold, Carissa Byrne Hessick and F. Andrew Hessick now available via SSRN. Here is the abstract:
Most cases in the American legal system — civil and criminal — are resolved by settlement. Although settlements are the norm in both systems, the two systems facilitate settlements in very different ways. The criminal system promotes settlements by empowering prosecutors to make the price of going to trial and risking conviction intolerably high for defendants. This leverage enables prosecutors to force defendants to enter into plea bargains under terms largely dictated by the prosecutor. By contrast, instead of providing one party with disparate leverage, the civil system facilitates settlement through procedure. Some civil procedures directly encourage settlement, such as rules requiring alternative dispute resolution. Other procedures, such as summary judgment, promote settlement indirectly by requiring information exchanges, providing opportunities for neutral arbiters to express their views of the case, and focusing the parties’ attention on the material issues simultaneously. Consequently, the civil system seeks to push only the “right” cases to settle and produces more informed, fair settlements.
This Article argues that the criminal justice system should more closely resemble the civil system in the way that it encourages settlements. It identifies several procedures that should be imported into the criminal system to make settlements less the product of coercion and more the result of informed, voluntary bargaining between the parties. In particular, it contends that the criminal system should heighten pleading standards, take seriously motions to dismiss, adopt more liberal discovery, create motions for summary judgment, and allow judicial involvement in plea negotiation. Adopting these procedures would tend not only to produce more informed and more fair plea bargains, but also to reduce the prosecutor’s leverage in plea negotiations. The Article also suggests preventing prosecutors from exercising their remaining leverage to demand that defendants waive these procedures by adopting some form of fee-shifting, also borrowed from civil practice.
"Conservatives Are Leading the Way as States Enact Criminal Justice Reform"
The title of this post is the headline of this extended Slate commentary (which is not an April Fool's Day joke). The piece is authored by LawProf Brandon Garrett, and it carries this subheadline: "Can their enthusiasm stop Donald Trump from pushing his backward 'tough on crime' agenda?". Here are excerpts:
The United States incarcerates its citizens at a higher rate than any other country in the world, but over the past few years, there’s finally been some progress. Rates of incarceration have finally begun to decline, mostly due to sweeping changes made in progressive states like California, New Jersey, and New York. According to Pew Charitable Trusts, adult incarceration has declined 13 percent since its peak in 2007, from 1 in 100 to 1 in 115. Of course, this progress is threatened by Donald Trump and his administration: The president has not only promised to reinstate a long-outdated approach to criminal justice, he’s also made Jeff Sessions, who holds similarly antiquated views, his attorney general. The two of them are preparing a task force to study violent crime — despite the fact that it’s already at historic lows — and are aiming to focus resources on drug cartels and drug use. They seem determined to return the federal government to the tough-on-crime era of the 1980s and 1990s, the height of the war on drugs.
But criminal justice reform is still marching forward—and the momentum is largely coming from conservatives, working in their state governments. The conservative case for reform is obvious: Spending billions of dollars on prison expansion and lengthy sentences is outdated and ineffective. And the state level is where reform will be the most effective — the majority of people are incarcerated in state systems. Reducing that number helps states balance their budgets, said Lenore Anderson, president of Alliance for Safety and Justice, a criminal justice reform organization that centers on crime victims. “Continued budget problems mean that regardless of who’s in the White House, [criminal justice] is going to continue to be a ripe issue for reform.”...
Texas is one of several red states, along with Georgia, Kentucky, Mississippi, Oklahoma, and South Carolina, that has adopted a range of progressive initiatives in the past decade. Texas’ reputation as a gung-ho death penalty state may make its reform efforts a surprise, but in the past decade, fiscal conservatives joined forces with civil libertarians and reduced the state’s incarceration rate by 14 percent. Part of that was thanks to forensic science and eyewitness identifications reforms that ended up putting fewer people behind bars. And rather than spend a half-billion dollars on building three new prisons, Texas instead invested in rehabilitation and re-entry, which has allowed it to close three prisons and saved billions. Crime has fallen to the lowest levels seen in Texas since 1968.
More than 30 other states have passed justice reinvestment legislation similar to Texas’. These laws divert low-level offenders from prison, use evidence-based risk methods to determine who really needs to be behind bars, reduce penalties for crimes, and aim to make it easier to get work after leaving prison. The cost savings from these reforms is then invested in rehabilitation and mental health and drug treatment, reducing crime even further....
But even with all this progress, a 10 percent to 20 percent drop in people going in won’t change the fact that our prisons are still vastly overstuffed — incarceration has risen 500 percent since the 1970s. Currently, more than half of the state prisoners in the country are serving time for violent crimes. Reducing prison populations to a manageable size must also include a closer look at how we legally define, prosecute, and punish violent crimes....
With Trump in charge, it’s possible that [some] will feel more empowered to push back against the progress that was starting to seem inevitable. The states that go back to this approach will likely see higher incarceration rates, and the costs — both human and fiscal — will fall on the public. But most lawmakers (not to mention the public) seem to have learned that these “tough” approaches failed in every way. We wasted billions to become the world’s leading incarceration nation. Such policies are simply an expensive and self-defeating type of posturing by politicians who value their own self-image over the well-being of the constituents. We already know what type of leader Trump is — let’s hope the state resistance is enough to fight him.
Though I support the sentiments of much of this commentary, I am disappointed that it fails to directly confront the tangible increase in violent crime over the last few years and the various ways in which this increase provides critical fodder for those eager to resist a move away from past "tough and tougher" approaches to crime and punishment. I surmise that AG Sessions and many of those around him sincerely believe crime remains low today only because of the laws, policies and practices of the "tough-on-crime era of the 1980s and 1990s," and these folks can and do now readily suggest that recent reforms to these laws, policies and practices may account in large part for recent crime increases. Past crime declines and now recent crime increases will likely lead these folks to persistently resist even the suggestion that a commitment to tough-and-tougher approaches is "self-defeating" in any way. In turn, they will contend that academics and other reformers are far too eager to put the interests of criminals ahead of victims.
March 31, 2017
New report spotlights concerns with disabilities and bad lawyering for eight Arkansas condemned scheduled for execution next month
In this post last year, I noted the initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). And, as regular readers now know, FPP is now regularly producing notable reports and research on the administration of various sentencing systems in various parts of the nation. The latest timely report from FPP is titled "Prisoners on Arkansas’s Execution List Defined By Mental Illness, Intellectual Disability, and Bad Lawyering," and here is how it gets started:
Since the Supreme Court reinstituted the death penalty in 1976, Arkansas has executed just 27 people. It has not sent an inmate to the death chamber since 2005. But beginning on April 17, Arkansas intends to execute an unprecedented eight men in just ten days.
This report examines the cases of those condemned men, and what we found is devastating. At least five of the eight cases involve a person who appears to suffer from a serious mental illness or intellectual impairment. One of these men was twenty at the time of the crime, suffered a serious head injury, and has a 70 IQ score. Another man suffers from paranoid schizophrenia and believes that he is on a mission from God. He sees both his deceased father and reincarnated dogs around the prison. A sixth condemned inmate endured shocking sexual and physical abuse–he was burned, beaten, stabbed, and raped, and his mother pimped him out to various adults throughout his preteen and teen years. In the two remaining cases, there is no evidence to suggest that the attorneys ever conducted even a minimally adequate mitigation investigation to determine if their clients had any illnesses or disabilities.
Across the eight cases, the quality of lawyering that we detected falls short of any reasonable standard of effectiveness–one lawyer was drunk in court, while another struggled with mental illness. Several of the lawyers missed deadlines, failed to visit their clients, and continued on a case despite the appearance of a conflict of interest. Taken together, these cases present a foundational challenge to the legitimacy and integrity of the death penalty in Arkansas. The Governor should declare a moratorium on executions so these legal deficiencies can be given a closer look, or else the Courts must intervene to stop these executions in order to preserve public confidence in the rule of law.
Perspectives on some changing prosecutorial perspectives
This New York Times article, headlined "Lock ’Em Up? Prosecutors Who Say ‘Not So Fast’ Face a Backlash," discusses the debate over a new local Florida prosecutor's announcement that she will not pursue capital cases together with the broader dynamic that more local prosecutors are running and winning on a criminal justice reform platform. (The companion piece briefly profiles "5 Prosecutors With a Fresh Approach.") Here are excerpts:
In Tampa, the top prosecutor says too many children are charged as adults. In Houston, the district attorney will no longer press charges in low-level marijuana cases. And in Chicago, prosecutors will no longer oppose the release of many nonviolent offenders who cannot afford to post bond. Two more newly elected prosecutors, in Denver and Orlando, have vowed not to seek the death penalty, even for the most egregious killers.
They are part of a new vanguard that has jettisoned the traditional lock-’em-up approach, instead winning over voters by embracing alternatives to harsh punishment. But in their eagerness to enact changes, some are facing a backlash from law enforcement groups and more conservative politicians.
In Texas, Lt. Gov. Dan Patrick, a Republican, warned that failing to punish drug crimes would make Houston akin to a “sanctuary city” for illegal enterprise. In Chicago, a suburban police chief warned that a move to classify more shoplifting cases as misdemeanors was “a slippery slope.”
But nowhere has there been more vitriol than in Florida, where a battle over the death penalty shows just how volatile an issue capital punishment remains, especially when the death of a police officer is involved....
The new breed of prosecutors was helped into office by voters skeptical of wrongful convictions, mass incarceration and evidence of racial bias in law enforcement. As candidates, many received help from the liberal billionaire George Soros, who spent millions on campaigns in states including Arizona, Mississippi and Missouri. Of the 15 candidates supported by his political action committees (including one for sheriff), 12 were victors.
But some change-minded prosecutors won without Soros money, showing that attitudes across the country are changing regardless of outsize political contributions, said David A. Sklansky, a professor at Stanford Law School who closely follows the issue. “It’s now possible in at least some places for district attorneys to campaign successfully and win office on a platform that’s not just harsher, harsher, more, more punishment,” he said. “That was unheard-of 10 years ago.”
Bob Ferguson, the attorney general of Washington State, said, “I think our public’s view of our criminal justice system has evolved.” Speaking out against the death penalty, he added, “is not the third rail people think it is.”
March 30, 2017
White House adviser Jared Kushner and Senate Judiciary Chair Charles Grassley meet on federal criminal justice reform
This new AP article reports that "Senate Judiciary Committee Chairman Chuck Grassley met with White House adviser Jared Kushner about criminal justice reform Thursday, giving supporters a small sign of encouragement that the issue could be revived under President Donald Trump." Here is more context (but not much of substance) about the meeting:
[A reform] bill died in the Senate last year over conservative opposition, and its future has seemed unclear under Trump. Attorney General Jeff Sessions, then a senator from Alabama, was a fierce opponent. Former President Barack Obama was an enthusiastic backer of the effort, and supporters were skeptical that Trump would be as well, since he had dubbed himself "law-and-order candidate" and talked about a country in crisis, with terrorism in big cities and attacks on police.
Grassley, R-Iowa, confirmed the meeting with Kushner, Trump's adviser and son-in-law, which was first reported by BuzzFeed News, but would not comment on its substance. The White House did not have immediate comment. On whether the bill could be revived, Grassley said, "We're trying to reach some accommodation, if there needs to be any adjustment to the bill we had last year."
An unusual coalition — including the American Civil Liberties Union and the conservative Koch Industries — says the system is broken and supports changes. Grassley and Texas Sen. John Cornyn, the No. 2 Republican in the Senate, and Illinois Sen. Dick Durbin, the No. 2 Senate Democrat, were sponsors of the bill. House Speaker Paul Ryan, R-Wis., has also been a strong supporter of the effort.
Advocates were encouraged by the meeting. Holly Harris of the Justice Action Network said she is hopeful that lawmakers in Congress are paying attention to several successful state efforts to make similar changes. And given the bipartisan support, she said, it's legislation that has a real chance of passing. "Congress needs to prove it can accomplish something, and this is the perfect issue," she said.
I am disinclined to call this one meeting a sign that federal statutory sentencing reform is in the works again, but it is an encouraging developments nonetheless for those eager to see Congress do some more reform work in this space.
Arkansas trial judge finds it "more than shameful" that state Supreme Court ruling required dismissal of condemned inmates suit over lethal injection
As reported in this local article, headlined "Suit over Arkansas execution drug gets dismissal; Griffen: Justices stole men’s rights," a trial judge in Arkansas is none-too-pleased he felt compelled to dismiss a challenge to lethal injection brought by state prisoners in the wake of a state Supreme Court ruling on the matter. Here are the basics of a notable ruling in a state seemingly poised now to conduct eight executions in the coming weeks:
The Arkansas Supreme Court's decision to lift a ban on the death penalty stole the rights of the nine convicted killers who filed suit to challenge the state's execution procedures, and it forces all state courts to continue that theft, Pulaski County Circuit Judge Wendell Griffen said in a ruling Tuesday.
"It amounts to theft of the rights guaranteed by the Constitution of this state and the Constitution of the United States to a trial," the judge wrote.
The ruling issued Tuesday by Griffen, a former Court of Appeals judge known for his outspokenness, formally ends 21 months of state-court litigation over the legality of the state's execution protocols. Griffen's dismissal of the inmates' Circuit Court lawsuit comes as eight of those inmates face lethal injection next month in four two-per-day execution sessions.
The prisoners have filed two federal lawsuits this week attempting to halt the process. On Tuesday, they sued to stop the ongoing clemency hearings, arguing that the state is moving forward with their executions so quickly that their clemency petitions are not getting the consideration required by law. A federal lawsuit that they filed Monday disputes that the anesthetic midazolam will give them the painless death they are entitled to under constitutional protections that bar the infliction of cruel and unusual punishment.
The inmates had disputed the effectiveness of midazolam at preventing suffering as part of their 2015 state-court lawsuit before Griffen. But they were not allowed to present their evidence in court because the Supreme Court ignored "decades" of case law to dismiss their entire lawsuit even before all of the issues the inmates had raised had been decided, Griffen wrote in Tuesday's order and memorandum.
"To think that the highest court in Arkansas would compel every other court in Arkansas to steal the last right condemned persons have to challenge the constitutionality of their execution illustrates the travesty of justice, and the damnable unfairness, this court is powerless to prevent," Griffen wrote.
State lawyers asked Griffen on March 16 to dismiss the killers' lawsuit based on the Supreme Court's June 2016 findings, a 4-3 decision written by Justice Courtney Goodson that reinstated the death penalty after a 10-year hiatus. Arkansas has not carried out an execution since 2005 because of litigation by inmates who have disputed the legality of changes the Legislature has made to the state's execution procedures over the past several years.
On March 17, the inmates' attorneys asked Griffen to rule in their favor on issues in the lawsuit that they stated the Supreme Court holding did not address. But the judge wrote that the Supreme Court decision required him to dismiss the lawsuit.
His 10-page ruling also states that the high court ignored decades of case law to deliberately deny the inmates their rights, and it suggests that the justices violated the oath all attorneys take to uphold the law to reach their conclusions. "It is an affront to, and dereliction of, the very oath every lawyer and judge swore before being admitted by the Supreme Court of this state. As such, it is more than troubling and more than shameful," Griffen wrote.
March 29, 2017
Notable review of recent ups and downs in federal prosecutions
In this new posting over at the Pew Research Center, John Gramlich has assembled interesting data on federal modern criminal justice realities under the headline "Federal criminal prosecutions fall to lowest level in nearly two decades." Here are highlights:
After peaking in 2011, the number of federal criminal prosecutions has declined for five consecutive years and is now at its lowest level in nearly two decades, according to a Pew Research Center analysis of new data from the federal court system. The decline comes as Attorney General Jeff Sessions has indicated that the Justice Department will reverse the trend and ramp up criminal prosecutions in the years ahead.
Federal prosecutors filed criminal charges against 77,152 defendants in fiscal year 2016, according to the Administrative Office of the U.S. Courts. That’s a decline of 25% since fiscal 2011, when 102,617 defendants were charged, and marks the lowest yearly total since 1997. The data count all defendants charged in U.S. district courts with felonies and serious misdemeanors, as well as some defendants charged with petty offenses. They exclude defendants whose cases were handled by magistrate judges.
Prosecutions for drug, immigration and property offenses – the three most common categories of crime charged by the federal government – all have declined over the past five years. The Justice Department filed drug charges against 24,638 defendants in 2016, down 23% from 2011. It filed immigration charges against 20,762 defendants, down 26%. And it charged 10,712 people with property offenses such as fraud and embezzlement, a 39% decline.
However, prosecutions for other, less frequently charged crime types have increased slightly. For example, prosecutors charged 8,576 defendants with gun crimes in 2016, a 3% increase over 2011 (and a 9% single-year increase over 2015). And they charged 2,897 people with violent crimes such as murder, robbery and assault, a 4% increase from five years earlier.
Several factors may play a role in the decline in federal prosecutions in recent years. One notable shift came in 2013, when then-Attorney General Eric Holder directed federal prosecutors to ensure that each case they bring “serves a substantial federal interest.” In a speech announcing the policy change, Holder said prosecutors “cannot – and should not – bring every case or charge every defendant who stands accused of violating federal law.”
Sessions, who took office as attorney general in February, has indicated that the Justice Department will take a different approach under his leadership. In particular, he has pushed to increase prosecutions for drug- and gun-related offenses as part of a broader plan to reduce violent crime, which rose nationally in 2015 and in the first half of 2016, according to the FBI. (Despite these increases, violent crime remains far below the levels recorded in the 1990s.)...
Since 2001, the Justice Department’s prosecution priorities have changed. Immigration offenses, for instance, comprised just 15% of all prosecutions in 2001; by 2016, they accounted for 27%. During the same period, drug crimes fell from 38% to 32% of all prosecutions, while property crimes declined from 20% to 14%.
Such revisions by the Justice Department are not unusual. In 2013, for example, after two states legalized the recreational use of marijuana, the department announced new charging priorities for offenses involving the drug, which remains illegal under federal law. Federal marijuana prosecutions fell to 5,158 in 2016, down 39% from five years earlier.
March 28, 2017
"Statistical (and Racial) Discrimination, 'Banning the Box', and Crime Rates"
The title of this post is the title of this notable new paper authored by Murat Mungan now available via SSRN. Here is the abstract:
This article presents law enforcement models where employers engage in statistical discrimination, and the visibility of criminal records can be adjusted through policies (such as ban the box campaigns). I show that statistical discrimination leads to an increase in crime rates under plausible conditions. This suggests that societies in which membership to disadvantaged groups is salient (e.g. through greater racial or religious heterogeneity) are, ceteris paribus, likely to have higher crime rates. Attempting to fix the negative impacts of statistical discrimination through policies that reduce the visibility of criminal records increases crime rates further. Moreover, such policies cause a greater negative effect for law abiding members of the disadvantaged group than members of the statistically favored group.
Ruling 5-3, SCOTUS rejects Texas effort to limit definition of intellectual disability for death penalty application
The Supreme Court this morning handed down an opinion in Moore v. Texas, No. 15-797 (S. Ct. March 28, 2017) (available here), in favor of a capital defendant. Because I am on the road, I will not be able to provide context for this ruling until later today. Short story seems to be that the more liberal Justices were not impressed by the more conservative standard Texas courts have used to apply the Atkins and Hall precedents concerning Eighth Amendment limits on executing the intellectually disabled.
UPDATE: Now with a few minutes at a desktop, I can quote Justice Ginsburg's opinion for the Court:
Bobby James Moore fatally shot a store clerk during a botched robbery. He was convicted of capital murder and sentenced to death. Moore challenged his death sentence on the ground that he was intellectually disabled and therefore exempt from execution. A state habeas court made detailed factfindings and determined that, under this Court’s decisions in Atkins v. Virginia, 536 U.S. 304 (2002), and Hall v. Florida, 572 U.S. ___ (2014), Moore qualified as intellectually disabled. For that reason, the court concluded, Moore’s death sentence violated the Eighth Amendment’s proscription of “cruel and unusual punishments.” The habeas court therefore recommended that Moore be granted relief.
The Texas Court of Criminal Appeals (CCA) declined to adopt the judgment recommended by the state habeas court. In the CCA’s view, the habeas court erroneously employed intellectual-disability guides currently used in the medical community rather than the 1992 guides adopted by the CCA in Ex parte Briseno, 135 S.W.3d 1 (2004). See Ex parte Moore, 470 S.W.3d 481, 486–487 (2015). The appeals court further determined that the evidentiary factors announced in Briseno “weigh[ed] heavily” against upsetting Moore’s death sentence. 470 S.W.3d at 526.
We vacate the CCA’s judgment. As we instructed in Hall, adjudications of intellectual disability should be “informed by the views of medical experts.” 572 U.S., at ___ (slip op., at 19); see id., at ___ (slip op., at 7). That instruction cannot sensibly be read to give courts leave to diminish the force of the medical community’s consensus. Moreover, the several factors Briseno set out as indicators of intellectual disability are an invention of the CCA untied to any acknowledged source. Not aligned with the medical community’s information, and drawing no strength from our precedent, the Briseno factors “creat[e] an unacceptable risk that persons with intellectual disability will be executed,” 572 U.S., at ___ (slip op., at 1). Accordingly, they may not be used, as the CCA used them, to restrict qualification of an individual as intellectually disabled.
Federal prosecutors seeking 3-year prison terms for "Bridgegate" defendants
I have covered in a few prior posts the convictions and coming sentencing of Gov Chris Christie staffers who are now felons thanks to federal prosecutions in the wake of the so-called Briedgegate scandal. This local article, headlined "Bridgegate: Feds seek 'meaningful' jail term for former Christie allies," reports on final filings as sentencing approaches:
Calling their crimes a "stunningly brazen and vindictive abuse of power," federal prosecutors urged a federal judge to sentence both Bill Baroni and Bridget Kelly, convicted last year in the Bridgegate scandal, to a "meaningful term of imprisonment."
But in a pre-sentence report filed Monday, the U.S. Attorney's office did not ask for the maximum term. Instead, they recommended a sentence for the two Bridgegate defendants to be "at the bottom or modestly below" the federal sentencing guidelines of between 37 to 46 months in prison.
Such a term, though, would still stand in stark sentence to the year of home confinement handed down earlier this month to David Samson, the former chairman of the Port Authority of New York and New Jersey, after he pleaded guilty to bribery in connection with the shakedown of United Airlines so he could get a more convenient flight to his country estate in South Carolina. Facing two years in jail, the former Port Authority chairman, David Samson, instead was sentenced to probation after attorneys, calling his actions a one-time lapse in judgment, asked the court to grant leniency for the ailing 77-year-old attorney, who was Christie's mentor.
Indirectly referencing the Samson ruling, the prosecutors said a sentence that could be perceived as a mere "slap on the wrist" would "send precisely the wrong message to the public, as well as to thousands and thousands of New Jersey public officials, elected and appointed."
Defense attorneys challenged the sentencing guidelines, which call for far longer prison terms than the typical corruption case, in large part because the Bridgegate convictions included charges of civil rights violations. "This sentencing is not about how much hyperbole the government can use in its sentencing brief," said Baroni's attorneys in a brief, also filed Monday. "Indeed, Bill accepts full responsibility for his actions and failure to act at a critically significant moment in his life. He will bear that cross forever, no matter (how) the court impose(s) sentence." But they asked the judge as well to "exercise the most leniency possible when tailoring a sentence based upon Bill's dedication to the altruistic service of others."
Both Baroni and Kelly are seeking a probationary sentences. "A non-custodial sentence including probation, home confinement and community service as punishment, is an appropriate sentence for Bridget Kelly," said her attorney, Michael Critchley.
Prosecutors said the defense challenges should be denied. "Defendants like Baroni and Kelly, who have had the opportunity to do good work and build relationships with influential people, are not entitled to a get-out-of-jail-free card, particularly for serious crimes," they wrote.
The two former members of Gov. Chris Christie's inner circle are scheduled to be sentenced on Wednesday....
"Baroni and Kelly took all of these actions for the pettiest of reasons: to punish a local mayor and send him a nasty political message because he did not endorse Gov. Christie for re-election," wrote assistant U.S. attorneys Vikas Khanna, Lee Cortes Jr. and David Feder in a 55-page brief. "Nothing about Baroni's and Kelly's actions or motivations in committing these crimes mitigates their conduct." At the same time, they cited the "complete lack of remorse for their wrongful conduct."
The self-admitted architect of the scheme, David Wildstein, a former political blogger and friend of the governor who landed a patronage job at the Port Authority, testified against Baroni and Kelly. He pleaded guilty and is awaiting sentencing.
Prior related posts:
- "Bridgegate" now a federal sentencing story after two former New Jersey officials convicted on all federal counts after lengthy jury deliberations
- Is the likely federal sentencing guideline range for "Bridgegate" defendants convicted last week at least 3 to 4 years in federal prison?
- You be the federal sentencing judge: how long a prison term for convicted "Bridgegate" defendants?
After Hurst brought down Delaware death penalty, state legislators seek to bring it back
As reported in this lengthy local article, "legislators from both parties say they will try to re-institute the death penalty in Delaware this year with a measure expected to be introduced next week." Here is more:
“Delaware has a long history of applying capital punishment cautiously, judiciously, and infrequently,” said State Sen. Dave Lawson. “These proposed changes would raise the imposition of such a sentence to a new level, removing what the court found objectionable and strengthening protections afforded defendants.”
The state Supreme Court last year ruled the capital punishment law unconstitutional because it allowed a judge, not a jury, to determine that "aggravating circumstances" made a crime heinous enough to deserve a death sentence. There are 22 of those aggravating factors, such as crime committed against a police officer, crimes in which hostages are taken or if the crimes that are "outrageously or wantonly vile, horrible or inhuman in that it involved torture or depravity of mind." The Court's 4-1 decision also faulted the law for allowing juries to find those aggravating circumstances without a unanimous vote, using a standard of proof that was too low.
On Monday, a bipartisan group of legislators unveiled the "Extreme Crimes Prevention Act," which would change the law to address those concerns, effectively reinstating the punishment. It would require that juries unanimously decide that the aggravating circumstances merited a death sentence, and requires proof of those circumstances "beyond a reasonable doubt." It also would require the judge and jury to weigh "mitigating factors," which would suggest the death penalty was unjust, against the "aggravating factors."...
In a news release, six legislators said they would co-sponsor the bill, including three Democrats and three Republicans. The release says the bill will be introduced in the House of Representatives next week. “It is impossible to quantify a crime not committed, but I believe the threat of capital punishment has altered criminal behavior and saved lives,” said State Rep. Steve Smyk, R-Milton, also a former police officer. “The reforms our bill will apply will restore an aspect of the Delaware Code that I believe deters crimes and protects the public.”
Brendan O'Neill, Delaware's chief public defender, immediately criticized the proposal. “History has proven us wrong every time we have passed a law authorizing state-sponsored execution of Delawareans," O'Neill said. "The current nationwide trend in criminal justice is to move away from the death penalty. Delaware should not once again put itself on the wrong side of history." O'Neill argued capital punishment is not proven to be a deterrent, has a history of racial disparities and has proven expensive to prosecute and defend....
Rep. Sean Lynn, D-Dover and one of the death penalty's most vocal opponents, said he thinks the bill could make headway, but hopes it will be defeated. "I think it passes the House based solely upon the vote count from the repeal effort last year," Lynn said. "The mystery is, the question is, what happens in the Senate."
March 27, 2017
Dynamic SCOTUS week for criminal law fans
I am on the road and thus going to be on-line and blogging only intermittently over the next few days. Perhaps for that reason, I am anticipating that the Supreme Court is going to be up to some interesting criminal work, given that this morning there will be an order list and Tuesday and Wednesday opinions may be released. In addition, a majority of cases up for oral argument this week involve criminal law issues. Via SCOTUSblog postings, here are links/previews for the criminal law cases the Justices will be hearing on Tuesday and Wednesday:
Lee v. United States, No. 16-327, to be argued March 28, 2017
Issue: Whether it is always irrational for a noncitizen defendant with longtime legal resident status and extended familial and business ties to the United States to reject a plea offer notwithstanding strong evidence of guilt when the plea would result in mandatory and permanent deportation.
Turner v. United States, No. 15-1503 to be argued March 29, 2017
Issue: Whether the petitioners' convictions must be set aside under Brady v. Maryland.
Honeycutt v. United States, No. 16-142 to be argued March 29, 2017
Issue: Whether 21 U.S.C. § 853(a)(1) mandates joint and several liability among co-conspirators for forfeiture of the reasonably foreseeable proceeds of a drug conspiracy.
March 26, 2017
"Recognizing Redemption: Old Criminal Records and Employment Outcomes"
The title of this post is the title of this new essay authored by Peter Leasure and Tia Stevens Andersen available via SSRN. Here is the abstract:
Upon completion of their sentences and when attempting to ‘reenter’ society, offenders face large barriers, often referred to as the ‘collateral consequences’ of conviction. One of the largest barriers, given the stigma of a criminal record, is finding employment. The problem primarily arises because of increases in the use of background checks by employers and the use of a criminal record to eliminate candidates. Such a practice is partly understandable for employers, as a recent conviction is one of the best predictors of future criminal activity.
However, recent evidence suggests that an offender’s risk of reoffending decreases over time and can eventually come “close enough” to that of one who has never offended, even becoming lower than that risk for a random person within the general population. However, no study has examined whether such knowledge has reached potential employers. Our study sought to determine whether knowledge such as this has reached potential employers and asked whether there are employment outcome differences for hypothetical applicants with older criminal records. Results indicate that those possessing older criminal records still face barriers when seeking employment. Based on these findings, we present policy considerations.
Notable perspectives on state and direction of modern criminal justice reform efforts
James Forman has this lengthy new commentary in the New York Times under the headlined "Justice Springs Eternal." I recommend the full piece to anyone and everyone seeking to take stock and reflect upon the current moment in the modern criminal justice reform movement. Here are some extended excerpts:
After almost 50 years of relentless prison-building in the United States, of aggressive policing and a war on drugs that goes after our most vulnerable citizens, the movement for a more merciful criminal justice system had begun to seem, if not unstoppable, at least plenty powerful.
In 2015, the number of American prisoners declined more than 2 percent, the largest decrease since 1978. By 2014, the incarceration rate for black men, while still stratospheric, had declined 23 percent from its peak in 2001. Even growing numbers of Republicans were acknowledging the moral and fiscal imperative of shrinking the prison state.
And then came President Trump, who caricatures black neighborhoods as killing fields in desperate need of more stop-and-frisk policing, and Attorney General Jeff Sessions, who shrugs off evidence of systemic police abuses in cities like Chicago and Ferguson, Mo., and says that marijuana is “only slightly less awful” than heroin. (In fact, nearly 13,000 Americans died from heroin overdoses in 2015, while zero died from marijuana overdoses.)
Such dangerous, ill-informed pronouncements naturally induce weariness and dread. Yet despite this bleak news from Washington, the movement to reduce the prison population and make our criminal justice system more humane is not in retreat. In fact, it is stronger than ever....
The most unexpected victories came in local races for prosecutor. For decades, district attorney candidates competed to prove they were tougher on crime than their opponents. That makes what happened last November so extraordinary: Prosecutors around the country campaigned on promises to charge fewer juveniles as adults, stop prosecuting low-level marijuana possession and seek the death penalty less often. And they did so in places with well-deserved reputations for rough justice, including Chicago, Houston and Tampa, Fla....
These state and local election results get less attention than Mr. Trump and Mr. Sessions, but they may have a bigger impact on incarceration rates. While mass incarceration is a national crisis, it was built locally. Ninety percent of American prisoners are in state, county and local jails, and around 85 percent of law enforcement officers are state and local, not federal.
Of course, the federal government exerts influence on law enforcement at all levels, both through rhetoric (the tone set in Washington filters down) and funding (Congress can encourage states to build more prisons by offering to foot part of the bill). But most crime policy is set by state and local officials: police officers, pretrial services officers, local prosecutors, defense lawyers, juries (in the rare cases that don’t end in a plea agreement), judges, state legislatures, corrections departments and state parole boards. During the tough-on-crime era that began in the 1970s, each of those entities became more punitive, and the cumulative impact of their policies and actions caused the number of people in prison or under criminal justice supervision to skyrocket.
Now, the reverse could also prove to be true. If multiple individuals across multiple systems were to become less punitive, the prison population would fall. This is why each state and local electoral victory — even those that don’t make news — is so significant. Mass incarceration will have to be dismantled the same way it was constructed: piecemeal, incrementally and, above all, locally.
The question is, what can be done to sustain such progress — especially at a time when crime is rising in some cities and the “law-and-order” mantra pioneered by Barry Goldwater and Richard Nixon in the 1960s has regained currency at the federal level? The answer lies with a new breed of activism that has emerged in response to mass incarceration. Reform groups and nonprofits are tackling issues and adopting strategies that an earlier generation of reformers did not....
[N]o aspect of our criminal justice system is as overworked and underfunded as public defender services. Of the more than $200 billion that states and local governments spend on criminal justice each year, less than 2 percent goes to public defense. Yet improving indigent defense gets scant attention in the conversation about how to fix our criminal justice system.
President Barack Obama “wrote a 55-page article about criminal justice reform and didn’t mention public defenders,” said Jonathan Rapping, the founder of Gideon’s Promise, an Atlanta-based group that is building a movement of public defenders to drive justice reform. “Eighty percent of the people charged with crimes in this country can’t afford a defense attorney,” Mr. Rapping added. “That means that 80 percent of the people in court depend on their public defender to be their voice, to tell their stories and to assert their humanity in a system that routinely denies it. Until we invest in public defenders, our system cannot and will not change.”
But what about the prosecutors whom public defenders and their clients face in court? This question points to one more critical item on the criminal justice reform agenda. We must continue to recruit progressive prosecutors to run in local elections, support those who do, and hold them accountable if they win. And let me go one step further: Law students and midcareer lawyers committed to criminal justice reform should consider signing up as assistant district attorneys in offices run by the new crop of progressive prosecutors.
This last suggestion, I confess, doesn’t come naturally to me. I’ve taught law school for almost 15 years, and during that time I’ve repeatedly counseled progressive students against working as prosecutors. I had lots of reasons, but the main one was straightforward: You might go in as a reformer, but the office will change you, not the other way around.
I still believe this is true for most prosecutors’ offices. But the recent election of prosecutors who criticize racial disparities and challenge wrongful convictions has caused me to change my mind. Prosecutors committed to reform need talented staff members who share that commitment, and our best legal talent should flock to their offices.
Mr. Sessions and Mr. Trump have the largest microphones and will get the most attention. But their agenda faces a rising countermovement across the country. If we stay local and continue to learn from past defeats and recent victories, the movement for a fairer criminal justice system can outlast them and prevail.