April 15, 2017
Utah judge under fire for calling former bishop "good man" in course of his rape sentencing
As reported in this local article, "complaints are mounting against a Utah County judge who earlier this week praised a former Mormon bishop before sending him to prison for sexually abusing two women." Here are the details:
Fourth District Judge Thomas Low on Wednesday became emotional as he handed down a prison sentence to Keith Robert Vallejo, whom a jury convicted of 10 counts of second-degree felony forcible sexual abuse and one of count of object rape, a first-degree felony. "The court has no doubt that Mr. Vallejo is an extraordinary, good man. But great men," the judge said Wednesday before taking a long pause, "sometimes do bad things."
Two women testified at the trial that Vallejo had inappropriately touched them during separate stays at his Provo home in 2013 and 2014.
Julia Kirby — who was 19 when Vallejo, her brother-in-law, abused her — told The Tribune after the sentencing that she was shocked by the judge's words to her abuser. Now, she plans to file a judicial complaint against him. And she's not the only one.
Restore Our Humanity, a Utah civil rights group that has launched an initiative to help sexual assault victims, will also file a complaint against Low. Director Mark Lawrence said Saturday that Low's comments showed "absolute disregard" for Kirby, who was sitting in the courtroom that day. "He completely disregarded her," Lawrence said. "He did something that we see happening over and over from position in authority dealing with these kind of cases: Making the perpetrator into the victim, showing sympathy and praise for the perpetrator and trying to make him into the victim. It's completely inappropriate."
Lawrence said he expects to file the complaint after reviewing transcripts of Low's comments this next week. He said the goal of the complaint is not to disbar Low, but to have him sanctioned and perhaps go through training to better understand sexual assault victims. "There are some people who would think that we're making a big issue out of this," Lawrence said. "But this isn't a simple misdemeanor or victimless crime. Sexual assault cannot be taken lightly, and everyone must stand up for these victims and survivors."
Criticism of Low initially began in March, after The Tribune published a story about Low's decision to allow Vallejo to remain free on bail pending sentencing and return home to his wife and eight children — even after the jury handed down the guilty verdicts at the February trial. Kirby said last month that she felt the decision indicated that Low did not believe that she and the other woman had been abused. Low reversed that decision during a March 30 hearing, and Vallejo had been at the Utah County jail until his Wednesday sentencing.
Jennifer Yim, the executive director of the Utah Judicial Performance Evaluation Commission, told the Associated Press that the commission has received roughly 40 emails, six voicemails and some Facebook messages about Low's handling of this case since late March.
Ryan McBride, the prosecutor on the case, said Low's comments were inappropriate and said it may have come in response to more than 50 character letters about Vallejo, most of them detailing the good things he has done. The defendant's brother spoke at the hearing and compared Vallejo to Jesus in making the argument that he was wrongly convicted, McBride noted. "I don't think it's wrong to acknowledge the good things that someone has done in their lives," the prosecutor told The Associated Press. "But I think whenever you do that in a case like this, you've also got to say, 'But it doesn't excuse what you've done.' "
Low on Wednesday sentenced Vallejo to concurrent sentences of one-to-15 years in prison for each of the second-degree felonies, and a five-years-to-life term for the object rape charge.
The title of this post is the title of this new paper authored by Melissa Hamilton available via SSRN. Here is the abstract:
This Article is concerned with disparities in penalty outcomes. More specifically, the study investigates upward departures in the federal guidelines-based sentencing system. No other research to date has explored upward departures in detail, despite their unique consequences to individuals and their effects on the system. Upward departures obviously lead to lengthier sentences and symbolically represent a dispute with the guidelines advice. Upward departures are discretionary to district judges and thus may lead to disparities in sentencing and exacerbate the problem of mass incarceration in this country.
The Article contextualizes the legal, policy, and practical reasons that render upward departures uniquely important decisions. Two theoretical perspectives suggest why judges may assess that an individual deserves an upward departure (the focal concerns perspective) and why upward departures may be more prevalent in some courts (courtroom communities’ perspective).
The study capitalizes on a more sophisticated methodology than utilized in most criminal justice empirical research. The study presents a multilevel mixed model to test the effects of a host of legal and extralegal explanatory factors on the issuance of upward departures at the case level (called fixed effects) and whether those same factors are significant at the group level — i.e., district courts — to determine the extent of variation across districts (called random effects). The results indicate that many of the legal and extralegal factors are relevant in individual cases (i.e., individual disparities) and indicate significant variations across district courts exist (i.e., regional disparities).
April 14, 2017
Is Arkansas really going to carry out seven (uneventful?) executions over the next two weeks?
The question in the title of this post is a slight variation on a question a student posed to me yesterday, and I really did not have a confident prediction. But these two new pieces discussing Arkansas's plans highlight that others are feeling somewhat more confident about what lies ahead in the Natural State:
From the Arkansas News, "Arkansas governor confident executions will go smoothly"
Gov. Asa Hutchinson on Thursday said he is confident the state Department of Correction can successfully carry out seven executions over an 11-day span starting Monday and defended his decision to set the unprecedented schedule.
In a news conference at the Governor’s Mansion, Hutchinson also expressed confidence in the ability of the sedative midazolam to render the inmates unconscious and said he retains the option to halt any of the executions but does not expect to do so.
The governor told reporters he paid a visit Wednesday to the Department of Correction’s execution chamber in Lincoln County and was satisfied the staff can carry out the plan successfully. Arkansas last executed an inmate in 2005. “I’m not going to go into which staff is doing what at the Department of Correction, but as I was there yesterday, they are experienced, they work on it, they practice it, they don’t take it lightly,” he said. “They know what they’re doing.”
The plan has drawn international attention and has been criticized by groups and individuals who have called it an “assembly line” and a “train wreck.”
From the Washington Post, "Arkansas plans to execute 7 men in 11 days. They’re likely to botch one."
On April 17, Arkansas is scheduled to execute seven men over a period of 11 days. If carried out, that will be the most executions performed in such a short time since the modern death-penalty era began in 1976.
The reason: Arkansas’ supply of the controversial drug it is using for executions, midazolam, is set to expire April 30. Midazolam is medically used as an anti-anxiety sedative, not an anesthetic. Experts have concerns about the drug’s ability to render a person fully unconscious, heightening the risk of an unconstitutionally cruel punishment. The lawyers defending the men scheduled for death are arguing that the short time will limit their ability to provide effective counsel and that the execution team will be so stressed that they will probably make mistakes.
UPDATE: There have been consequential legal developments in Arkansas since I authored this post roughly 24 hours ago. This local article provides the highlights in its opening paragraphs:
A federal judge issued an injunction early Saturday to halt the executions of several condemned Arkansas inmates, creating another barrier to the state's plan to put them to death over an 11-day period starting Monday.
The Arkansas Attorney General's office called the decision "unfortunate" and filed a notice of appeal with the 8th U.S. Circuit Court of Appeals.
The ruling came a day after the Arkansas Supreme Court first issued an emergency stay blocking Bruce Ward's execution. That order didn't affect the other 6 condemned men, but Pulaski County Circuit Judge Wendell Griffen ruled a short time later that a separate complaint filed by a medical supplier was cause to issue a temporary restraining order blocking all the executions. The state Attorney General, though, on Saturday asked the state Supreme Court to reverse Griffen and to remove him from the case.
U.S. District Judge Kristine Baker's ruling, issued shortly after 6 a.m., applies to all of the scheduled executions. Click here to read the full order 📄.
Baker wrote that "there is a significant possibility that plaintiffs will succeed on the merits of their Eighth Amendment challenge to Arkansas’s lethal injection protocol."
Over-burdened New Orleans public defenders talk of challenges to 60 Minutes
As previewed here, this Sunday night's broadcast of 60 Minutes will have a notable segment on the New Orleans justice system with notable commentary from attorneys who have work in the New Orleans Public Defenders Office. Here is how the segment is previewed:
New Orleans public defenders tell Anderson Cooper that innocent people have gone to jail because they've lacked the resources and time to defend them properly
Past and current attorneys of the New Orleans Public Defenders Office tell Anderson Cooper they believe innocent clients have gone to jail because they lacked the time and resources to defend them properly. The system is so overburdened that in 2016 New Orleans Chief Public Defender Derwyn Bunton began ordering his staff to refuse to take on clients facing the most serious felonies. Cooper’s report on the New Orleans justice system will be broadcast on 60 Minutes Sunday, April 16 at 7 p.m. ET/PT.
All nine of the attorneys agreed when asked by Cooper if they believed an innocent client went to jail because they didn’t have enough time to spend on their case. When 52 attorneys are responsible for 20,000 criminal cases a year, as in New Orleans, they do their best says Bunton. But often, indigent defendants will not get the quality defense they are entitled to. “You can’t provide the kind of representation that the Constitution, our code of ethics and professional standards would have you provide,” says Bunton. Asked if it’s not better to have a busy lawyer than no lawyer, Bunton does not hesitate, “No. A lawyer poorly resourced can cause irreparable harm to a client.”
Cooper follows one case of a man arrested in New Orleans who sat in jail for more than a year before an attorney presented evidence to the court showing he did not even match the suspect’s description. He also speaks to the man’s original public defender who got so fed up with not having the time to provide quality defense, she quit.
At the time, Lindsay Samuel represented nearly a hundred clients facing a life in prison. She felt she was “Always coming up short. The first thousand clients you feel terrible. The second thousand clients, you feel awful,” she recalls. “Every day my clients are going away for a decade and I just move along to the next client,” says Samuel.
Bunton shows Cooper a warehouse full of the nearly half million cases handled by his office in the past decade. He says 90 to 95 percent of the defendants in those cases pled guilty, many because they lacked confidence in an overburdened public defender being able to provide them with an adequate defense. The justice system in New Orleans has become a criminal processing system says Bunton, “A conveyor belt that starts when you are arrested and then there’s hands that touch you on your way to prison,” he tells Cooper. “It’s not about figuring out...your innocence...and that’s what we are fighting to change,” says Bunton.
April 13, 2017
"Three Reasons Why Virginia May Execute an Innocent Man"
The title of this post is the headline of this notable new commentary authored by LawProf Cara Drinan. Here are excerpts:
In 2006, a jury convicted Ivan Teleguz of hiring someone to kill Stephanie Sipe, his ex-girlfriend and the mother of his child. Now, more than a decade later, Virginia is scheduled to execute Teleguz on April 25, 2017, and there is substantial evidence suggesting that Teleguz is innocent.
How is that possible in the United States – the land of the free, where a poor person is entitled to legal counsel and a criminal defendant has numerous chances to be heard in court? Actually, it happens with some ease, and in part, it happens because of conscious choices we have made about our legal system. There are at least three reasons for this counter-intuitive reality.
1. Prosecutors, Not Judges or Juries, Resolve Most Criminal Cases in America ...
Teleguz’s case demonstrates this phenomenon well. There was no physical evidence connecting him to the murder of Ms. Sipe; the prosecution’s case was based on the testimony of three witnesses. Since his trial, two of those witnesses have recanted their testimony and have admitted that they lied when they implicated Teleguz in exchange for favorable treatment from the government. The Commonwealth repeatedly told the third witness, Ms. Sipe’s actual killer, that he would face the death penalty unless he “cooperated” with them by agreeing to testify against Teleguz in Ms. Sipe’s murder and sticking to that story. Not surprisingly, he did just that and he is serving out a life sentence while Teleguz faces imminent death.
2. The Myth of the Right to Counsel ...
Teleguz suffered at the hands of a broken system. Counsel in death penalty cases are held to a heightened standard of performance, and as part of that standard, they are expected to conduct extensive, careful investigation to prepare for the sentencing phase of the trial. Teleguz’s trial counsel was far from diligent, and as a result, the jury heard evidence that Teleguz was involved in another arranged murder. This evidence persuaded the jury to vote for the death penalty. Here’s the wrinkle: not only was Teleguz not involved in such a crime, the crime never happened. Years after his trial, that fact came to light, and the government has now acknowledged that the alleged prior murder did not happen. But the jury verdict stands.
3. Not So Appealing Appeals Process ...
Surely, the multi-layered appellate process would ferret out an error of this magnitude and provide a remedy? Not necessarily. In 1996, Congress passed the Antiterrorism and Effective Death Penalty Act (“AEDPA”) and in the process “gutted the federal writ of habeas corpus, which a federal court can use to order the release of someone wrongly imprisoned.” Today, the American appellate process is an intricate web of procedural rules, and, in fact, "we have purposefully designed our system of appellate review to examine almost everything but factual guilt or innocence."
That might be defensible if we could be confident in the accuracy of our criminal justice system, but we can’t be. Since 1989, there have been more than 2,000 exonerations in the United States. In 2015 alone, 58 people were exonerated of homicide convictions. Like many of those individuals, Teleguz has consistently maintained his innocence. Today there is new evidence to support that claim that no court has fully examined.
In the next few days, Governor Terry McAuliffe can’t do much about prosecutorial overreach, problems with indigent defense, and the complex appellate process. But he can recognize that, because of these systemic failures, there is substantial doubt about Teleguz’s guilt. Governor McAuliffe should grant clemency and stop Teleguz’s execution.
This recent AP article, headlined "Conservatives urge Virginia governor to spare inmate's life," highlights that it is not only a law professor urging Gov McAuliffe to act in this capital case.
UPDATE: A commentor has usefully noted that the Fourth Circuit opinion in this case, which is available here, provides a different perspective on this case and Teleguz's claims of innocence.
"Four Decades and Counting: The Continued Failure of the War on Drugs"
The title of this post is the title of this new Policy Analysis from the Cato Institute authored by Christopher Coyne and Abigail Hall. Here is the 28-page document's Executive Summary:
Private individuals and policymakers often utilize prohibition as a means of controlling the sale, manufacture, and consumption of particular goods. While the Eighteenth Amendment, which was passed and subsequently repealed in the early 20th century, is often regarded as the first major prohibition in the United States, it certainly was not the last. The War on Drugs, begun under President Richard Nixon, continues to utilize policies of prohibition to achieve a variety of objectives.
Proponents of drug prohibition claim that such policies reduce drug-related crime, decrease drug-related disease and overdose, and are an effective means of disrupting and dismantling organized criminal enterprises.
We analyze the theoretical underpinnings of these claims, using tools and insights from economics, and explore the economics of prohibition and the veracity of proponent claims by analyzing data on overdose deaths, crime, and cartels. Moreover, we offer additional insights through an analysis of U.S. international drug policy utilizing data from U.S. drug policy in Afghanistan. While others have examined the effect of prohibition on domestic outcomes, few have asked how these programs impact foreign policy outcomes.
We conclude that prohibition is not only ineffective, but counterproductive, at achieving the goals of policymakers both domestically and abroad. Given the insights from economics and the available data, we find that the domestic War on Drugs has contributed to an increase in drug overdoses and fostered and sustained the creation of powerful drug cartels. Internationally, we find that prohibition not only fails in its own right, but also actively undermines the goals of the Global War on Terror.
Florida judge imposes 100 years in prison for child porn possession for first offender claiming innocence
This local article about a state sentencing in Florida, headlined "Man, 37, sentenced to 100 years for child porn conviction," reports on a remarkably severe sentence handed down yesterday. Here are the details:
A 36-year-old St. Johns County man is looking at spending the rest of his life behind bars after Circuit Court Judge Howard Maltz sentenced him to 100 years in prison Wednesday morning. The sentencing came nearly two months after a jury found Jesse Graham Berben guilty on 20 counts of possession of child pornography at the end of a two-day February trial.
Berben, who maintained his innocence even through his sentencing hearing Wednesday, was arrested by St. Johns County Sheriff’s Office detectives in April 2015 after authorities obtained a search warrant for his Washington Street apartment — where he was living with his father at the time — and finding files containing the pornography on his computer.
His arrest report indicates that Berben denied knowing anything about the files or how they ended up on his computer. While he admitted to having a peer-to-peer file-sharing program that he used to download music, he denied using his computer to keep or download child pornography and said that if such files were found that it must have been compromised in some way.
Berben’s attorney, Tom Cushman, said after the sentencing that his client had maintained his innocence to him from the day that they first met, and that Berben had been offered a plea agreement from the state that would have netted him a prison sentence of about 5 years, “but he refused to plead because he said he was not guilty and he wasn’t going to plead guilty to something he didn’t do and become a registered sex offender with it.”
The sentence he ultimately received was more than four-times the “lowest permissible” sentence Maltz could have handed down based on sentencing guidelines submitted in court Wednesday (the maximum sentence was life in prison). It was also beyond even what Assistant State Attorney Mitch Bishop asked for while standing in for his colleague Chris Ferebee, who prosecuted the case.
Bishop, in his remarks before sentencing, said that the images — most of them movie files — found on Berben’s computer depicted children, some as young as 5-years-old, engaged in various sex acts. He pushed back on the notion, expressed by some, that merely possessing such images is not nearly as bad as carrying out the acts depicted.
“The problem with that is that viewing these images, possessing these images creates a market for someone else to produce them,” he said. “I don’t think that point should be overlooked.” Berben, he argued, not only downloaded the files but kept them in the file sharing program, making them available to others.
Bishop asked Maltz for a sentence that would include the rest of Berben’s “meaningful life,” arguing that someone who is “sexually gratified by” or even “sexually curious” by such images does not possess much “rehabilitative potential.”...
Cushman, citing his client’s 10 years of military service and lack of any criminal record, asked Maltz to consider something far less than Bishop asked for, and pointed out that the sentencing guidelines for the possession of child pornography made his client eligible for a punishment “possibly greater than if he’d actually committed the act.”...
Maltz, though, citing the images seen at the trial, called the case “quite troubling” and said he agreed with the state’s argument against any notion that possession of the images is a victimless crime. “I see little difference in culpability between those who actually sexually abuse and exploit children, and those who encourage and promote the conduct by downloading and sharing videos of such, which I think warrants a significant sentence,” he said.
Maltz sentenced Berben to five years in prison for each of the 20 counts, to be served consecutively. Cushman said Berben plans to appeal the sentence.
I am pretty sure that Florida lacks any general parole provisions, so the defendant in this case is certain to die in prison if his convictions or sentence is not modified on appeal. Notably, a somewhat similar case from Florida a few years ago, the Vilca case discussed here where an LWOP sentence was imposed for child porn possession, had convictions reversed based on a discovery violation as noted here. Also, in a similar case from South Dakota, the Bruce case discussed here, the South Dakota Supreme Court found a 100-year prison sentence for child porn possession constitutionally excessive.
It will be interesting to see if this case might get the level of attention that some others involving extreme prison terms sometimes do. And it will be interesting to see how the Florida courts engage with these matters on appeal.
April 12, 2017
Effective coverage of the considerable challenges of sentencing reform in Louisiana
Over the last month, The Advocate has done a fine job covering debates over sentencing reforms in Louisiana, and the most recent of the article (listed last below) prompted me to collect come of this reporting in this space:
Might Dylann Roof have claimed ineffective assistance of counsel if he didn't get sentenced to death?
Most murderers who get sentenced to death at some point claim their lawyers were constitutionally ineffective. But this new local article, headlined "Dylann Roof calls his lawyers 'sneakiest people I ever met,' says mental health defense was 'a lie'," suggests one high-profile condemned mass murderer might have claimed his lawyer was ineffective if he wasn't sentenced to death. The full article is fascinating, and here is how it gets started:
Calling his attorneys "the sneakiest group of people I have ever met,” Dylann Roof reached out to federal prosecutors on the eve of his hate crimes trial in an effort to scuttle a planned mental health defense aimed at sparing him the death penalty.
Roof blistered his legal team in a three-page jailhouse letter, accusing them of tricking him into undergoing tests to challenge his competency to stand trial for killing nine black worshippers at Charleston's Emanuel AME Church in June 2015. Roof told prosecutors he wanted no part of this strategy, which he labeled "a lie."
"Because I have no real defense, my lawyers have been forced to grasp at straws and present a pathetic, fraudulent excuse for a defense in my name," he wrote in early November. "They have regularly told me in an aggressive manner that I have no say in my own defense, that my input doesn't matter, and that there is nothing I can do about it."
Roof's letter was among more than 70 filings that U.S. District Court Judge Richard Gergel unsealed Tuesday – one day after the 23-year-old white supremacist pleaded guilty to nine counts of murder in state court. Though Roof’s federal trial ended in January with a death sentence, Gergel had been reluctant to release records about his mental status while the state case was pending.
The newly unsealed documents show procedural disagreements over how Roof’s mental health would be evaluated and growing discord between the killer and his top-flight legal team of capital defense specialists. Roof railed at their “slick” tactics, and they in turn expressed frustration with a “delusional” client who seemed preoccupied with fantasies that white supremacists would break him out of prison and make him governor of South Carolina, the documents show.
In the handwritten November letter to “Prosecution,” Roof alleged that his legal team had told him he was being tested to determine if a thyroid condition had affected his brain when they were really compiling evidence to challenge his competency. He said he wanted the people trying to convict him to know that “what my lawyers plan to say in my defense is a lie and will be said without my consent or permission.”
“My lawyers have purposely kept me in the dark about my defense until the last minute in order to prevent me from being able to do anything about it, which is why I have been forced to write to you,” he stated. “Throughout my case they have used scare tactics, threats, manipulation, and outright lies to further their own, not my, agenda.” He warned prosecutors not to let his legal team “fool you or the court like they’ve fooled me.”
Prosecutors notified Roof's lawyers after receiving the letter, and lead defense attorney David Bruck agreed that Gergel, the trial judge, needed to see the missive, according to a chain of emails. After a closed-door meeting on Nov. 7, Roof's lawyers pleaded with the judge to delay planned jury selection in the case so Roof could undergo an extensive mental competency review. They repeatedly described Roof as delusional, and noted his "depression, extreme anxiety and autism spectrum disorder."
They stated that their tenuous working relationship with him had suffered "a severe rupture" when he "openly attempted to sabotage his own case" by reaching out to prosecutors. "(W)e are now faced with a client who would rather die than be labeled mentally ill or neuro-developmentally impaired, and who would rather communicate and ally himself with those who propose to execute him than us," his attorneys wrote.
The attorneys stated that Roof believed "the very white nationalists whom he considers his allies" would turn on him and persecute him for his "perceived infirmities" if he were to be labeled incompetent. They stated that Roof had "an irrational belief that being labeled mentally impaired will affect the defendant's standing with some hypothetical white nationalists whom the defendant has never met or communicated with — and cannot even name — but whom he believes may appoint him to a high government position some day."
They attached notes indicating that Roof had been so distracted by his delusional ideas that he was unable to respond to the basic needs of his defense. Among his odd notions was a fantasy that white supremacists would stage a prison break to rescue him from captivity, they said. "His single-minded focus on being rescued and made governor of South Carolina makes salient to him things that are irrational and he cannot rationally assist counsel as a result," they stated.
April 11, 2017
Looking at the latest data on private prison populations in the US
The Pew Research Center has this new "Fact Tank" post titled "U.S. private prison population has declined in recent years." The piece effectively reviews a lot of private prison data, and here are excerpts:
After a period of steady growth, the number of inmates held in private prisons in the United States has declined modestly in recent years and continues to represent a small share of the nation’s total prison population.
In 2015, the most recent year for which data are available, about 126,000 prisoners were held in privately operated facilities under the jurisdiction of 29 states and the federal Bureau of Prisons. That’s an 83% increase since 1999, the first year with comparable data, according to the Bureau of Justice Statistics (BJS). By comparison, the total U.S. prison population increased 12% during that span.
In more recent years, however, both the private and overall U.S. prison populations have declined at modest rates. The private prison population has shrunk by 8% since its peak in 2012, while the overall prison population has fallen by 5% since its peak in 2009. (The state private prison population peaked in 2012 with 96,774 prisoners, while the federal private prison population reached its peak a year later in 2013, with 41,159 prisoners.)...
Since 1999 — the first year BJS began collecting data on private prisons — inmates in privately run facilities have made up a small share of all U.S. prisoners. In 2015, just 8% of the nearly 1.53 million state and federal prisoners in the U.S. were in private facilities, up slightly from 5% in 1999.
State inmates make up the majority of the U.S. private prison population, as well as the overall U.S. prison population. In 2015, state prisoners made up 72% of the U.S. private prison population and 87% of the overall U.S. prison population.
In 2015, nearly three-quarters (73%) of all state prisoners in private facilities were held in the Sun Belt region of the U.S., including Texas, which has the largest private state prison population in the country. (Texas also has the second-largest state population overall.) The Lone Star State’s private prison population peaked at 20,041 in 2008, or 21% of all state inmates in privately run prisons at the time. By 2015, Texas’ private prison population had dropped to 14,293.
Florida had the second-largest private prison population (12,487) in 2015, while Georgia and Oklahoma had the third- and fourth-largest with 7,953 and 7,446, respectively. Arizona had the fifth-largest state private prison population (6,471) in 2015, a drop since the state’s peak of 8,971 in 2009.
The number and share of private prisoners under federal jurisdiction have grown since 1999. That year, 3,828 federal prisoners were being held in private prisons, comprising just 6% of the total private prison population. By 2015, the number of federal prisoners in private facilities had jumped to 34,934, accounting for 28% of the U.S. private prison population. At the same time, the share of prisoners in private facilities under state jurisdiction shrunk from 94% in 1999 to 72% in 2015.
In 2015, nearly 18% of all federal prisoners were being held in private prisons, a jump from 3% in 1999. By comparison, prisoners held in private prisons have made up less than 10% of the state prison population since 1999....
In February, Attorney General Jeff Sessions reversed a directive from the Obama administration to phase out work with private prisons at the federal level. The original Obama directive was motivated by a 2016 audit, which found that federal “contract” prisons had more safety and security incidents than comparable government-run prisons.
AG Sesssions issues memo to federal prosecutors that "mandates the prioritization of criminal immigration enforcement"
As reported in this press release from the US Justice Department, "Attorney General Jeff Sessions today spoke to Customs and Border Protection personnel at the United States-Mexico border in Nogales, Arizona," and in his remarks the AG "announced that he has issued [this] attached memo to United States Attorneys that mandates the prioritization of criminal immigration enforcement." Here is more from the press release and the speech it references:
The memo directs federal prosecutors to focus on particular offenses that, if aggressively charged and prosecuted, can help prevent and deter illegal immigration. Additionally, the Attorney General revealed that the Department of Justice will add 50 more immigration judges to the bench this year and 75 next year. He also highlighted the Department's plan to streamline its hiring of judges, reflecting the dire need to reduce the backlogs in our immigration courts....
[From the AG's speech:]
[T]oday, I am pleased to stand here with you and announce new guidance regarding our commitment to criminal immigration enforcement. As we speak, I am issuing a document to all federal prosecutors that mandates the prioritization of such enforcement.
Starting today, federal prosecutors are now required to consider for prosecution all of the following offenses:
The transportation or harboring of aliens. As you know too well, this is a booming business down here. No more. We are going to shut down and jail those who have been profiting off this lawlessness — people smuggling gang members across the border, helping convicted criminals re-enter this country and preying on those who don’t know how dangerous the journey can be.
Further, where an alien has unlawfully entered the country, which is a misdemeanor, that alien will now be charged with a felony if they unlawfully enter or attempt enter a second time and certain aggravating circumstances are present.
Also, aliens that illegally re-enter the country after prior removal will be referred for felony prosecution — and a priority will be given to such offenses, especially where indicators of gang affiliation, a risk to public safety or criminal history are present.
Fourth: where possible, prosecutors are directed to charge criminal aliens with document fraud and aggravated identity theft — the latter carrying a two-year mandatory minimum sentence.
Finally, and perhaps most importantly: I have directed that all 94 U.S. Attorneys Offices make the prosecution of assault on a federal law enforcement officer — that’s all of you — a top priority. If someone dares to assault one of our folks in the line of duty, they will do federal time for it.
To ensure that these priorities are implemented, starting today, each U.S. Attorney’s Office, whether on the border or interior, will designate an Assistant United States Attorney as the Border Security Coordinator for their District. It will be this experienced prosecutor’s job to coordinate the criminal immigration enforcement response for their respective offices.
For those that continue to seek improper and illegal entry into this country, be forewarned: This is a new era. This is the Trump era. The lawlessness, the abdication of the duty to enforce our immigration laws and the catch and release practices of old are over.
April 10, 2017
Amnesty International releases report on global death sentences and executions in 2016
Amnesty International has released this new report on the worldwide use of the death penalty in 2016. This AI webpage provides a kind of summary of some of the full report's most salient facts and figures. Here are some of those numbers:
At least 1,032 people were executed in 23 countries in 2016. In 2015 Amnesty International recorded 1,634 executions in 25 countries worldwide — a historical spike unmatched since 1989. Most executions took place in China, Iran, Saudi Arabia, Iraq and Pakistan — in that order.
China remained the world’s top executioner — but the true extent of the use of the death penalty in China is unknown as this data is considered a state secret; the global figure of at least 1,032 excludes the thousands of executions believed to have been carried out in China. Excluding China, 87% of all executions took place in just four countries — Iran, Saudi Arabia, Iraq and Pakistan.
For the first time since 2006, the USA was not one of the five biggest executioners, falling to seventh behind Egypt. The 20 executions in the USA was the lowest in the country since 1991.
During 2016, 23 countries, about one in eight of all countries worldwide, are known to have carried out executions. This number has decreased significantly from twenty years ago (40 countries carried out executions in 1997). Belarus, Botswana, Nigeria and authorities within the State of Palestine resumed executions in 2016; Chad, India, Jordan, Oman and United Arab Emirates — all countries that executed people in 2015 — did not report any executions last year.
141 countries worldwide, more than two-thirds, are abolitionist in law or practice.
In 2016, two countries — Benin and Nauru — abolished the death penalty in law for all crimes. In total, 104 countries have done so — a majority of the world’s states. Only 64 countries were fully abolitionist in 1997.
Commutations or pardons of death sentences were recorded in 28 countries in 2016. At least 60 people who had been sentenced to death were exonerated in 9 countries in 2016: Bangladesh (4), China (5), Ghana (1), Kuwait (5), Mauritania (1), Nigeria (32), Sudan (9), Taiwan (1) and Viet Nam (2).
Amnesty International recorded 3,117 death sentences in 55 countries in 2016, a significant increase on the total for 2015 (1,998 sentences in 61 countries). Significant increases were recorded in 12 countries, but for some, such as Thailand, the increase is due to the fact that the authorities provided Amnesty International with detailed information.
At least 18,848 people were on death row at the end of 2016. The following methods of execution were used across the world: beheading, hanging, lethal injection and shooting. Public executions were carried out in Iran (at least 33) and North Korea.
"Day Fines: Reviving the Idea and Reversing the (Costly) Punitive Trend"
The title of this post is the title of this new paper authored by Elena Kantorowicz-Reznichenko now available via SSRN. Here is the abstract:
Fines have numerous advantages as a criminal sanction. They impose minor costs on the society and compliance leads to an increase of the state revenue. Furthermore, fines have no criminogenic effect as prisons do. However, the potential of this sanction is not fully exploited due to income variation among offenders. Sanctions must impose an equal burden on offenders who commit similar crimes. Yet in practice, low fines are insufficiently punitive to deter and punish wealthy offenders. And high fines are unaffordable for low-income offenders. As a result, fines are imposed only for minor offenses.
On the contrary, day-fines allow imposing an equal relative burden of punishment, while assuring the offender is capable of complying with the pecuniary sanction. This is possible due to the special structure of day-fines, which separates the decision on the severity of the crime and the financial state of the offender. Such structure enables expanding the categories of offenses that can be dealt with pecuniary sanctions. Day-fines can offer a partial solution for the American prison-overcrowding problem.
Therefore, the aim of this article is twofold. First, to provide a comparative analysis of day-fines in Europe. This analysis includes an exhaustive depiction of all the day-fine models that are currently implemented in Europe. Second, this article examines for the first time some of the challenges in transplanting day-fines into the U.S. criminal justice system, i.e. the constitutional restriction on Excessive Fines and the suitability of this model of fines to the American ‘uniformity revolution in sentencing’.
AG Sessions opting not to renew National Commission on Forensic Science
As reported in this extended Washington Post piece, headlined "Sessions orders Justice Dept. to end forensic science commission, suspend review policy," the new Attorney General is taking a new approach to old debates over forensic science. Though the decision here is not quite a sentencing story, it provides another example of how the new head of DOJ is taking a much different approach to serving justice than did his immediate predecessors. I recommend the Post piece in full for those seeking full context here, and here is how the piece starts:
Attorney General Jeff Sessions will end a Justice Department partnership with independent scientists to raise forensic science standards and has suspended an expanded review of FBI testimony across several techniques that have come under question, saying a new strategy will be set by an in-house team of law enforcement advisers.
In a statement Monday, Sessions said he would not renew the National Commission on Forensic Science, a roughly 30-member advisory panel of scientists, judges, crime lab leaders, prosecutors and defense lawyers chartered by the Obama administration in 2013.
A path to meet needs of overburdened crime labs will be set by a yet-to-be named senior forensic adviser and an internal department crime task force, Sessions’s statement said.
The announcement came as the commission began its last, two-day meeting before its term ends April 23, and as some of its most far-reaching final recommendations remained hanging before the department.
April 9, 2017
Poll suggests Arkansans generally support state plans for multiple executions in coming weeks
This new local article, headlined "Poll: Arkansans’ support for death penalty unfazed by upcoming execution schedule," reports on a new local poll showing support for the notable execution plans in the works in the Natural State. Here are excerpts from part of the poll and some analysis provided in the article:
Arkansas voters remain firmly committed to the death penalty despite an upcoming quick execution schedule, advances made in DNA testing, and a national trend towards ending the practice. A new Talk Business & Politics-Hendrix College survey suggests more than 2-to-1 support for the death penalty versus life without parole....
Arkansans are also unfazed by the upcoming rapid execution schedule which involves seven executions over an 11-day period. At the time the poll was conducted, eight inmates were scheduled for execution in the 11-day time span....
As Arkansas’s move to carry out eight (and, following a federal court ruling in recent days, seven) executions via lethal injection moves toward reality at the end of the month, Arkansas is gaining increasing national and international attention as state officials race to beat the expiration deadline for a drug used in the state’s lethal injection formula.
We asked a series of questions about Arkansans’ opinions regarding the death penalty, generally, and this historic number of executions in particular. Arkansans’ unshakeable commitment to the death penalty is shown by the survey results. Most generally, Arkansans solidly support the application of the death penalty with over six in ten respondents favoring the death penalty while fewer than three in ten support life without parole for those convicted of capital offenses....
Finally, we focused on the extraordinary number of executions planned by the state of Arkansas at the end of the April. At the time of our survey, eight executions were planned. At the time of this writing, seven of those executions remain on track (the eighth has been delayed by federal District Judge Price Marshall because of a favorable clemency recommendation by the State Parole Board).
Just at one in four Arkansans are troubled by this aggressive stance while a strong majority of Arkansans either favor this move by the state to ensure the executions are carried out before the drug expiration (51%) or say it makes no difference (17%). While slight majorities of African-Americans and Democrats oppose the mass executions, the most noticeable variance across social groups is shown between men and women. A nearly 20 point gender gap (61% for men versus 42% for women) is shown on support for the late-April series of executions.
All told, this pattern of survey responses on the death penalty shows the breadth and depth of Arkansans support for death as an appropriate punishment in capital cases. While national survey research shows some erosion of support for the death penalty, all signs are that the death penalty will remain in favor in Arkansas for the foreseeable future.
Some prior related posts:
- Arkansas Gov signs proclamations that could lead to eight executions in less than two weeks in next month
- Arkansas trial judge finds it "more than shameful" that state Supreme Court ruling required dismissal of condemned inmates suit over lethal injection
- New report spotlights concerns with disabilities and bad lawyering for eight Arkansas condemned scheduled for execution next month
- Arkansas Parole Board recommends clemency for one of eight condemned scheduled for execution later this month
"Mass incarceration, public health, and widening inequality in the USA"
The title of this post is the title of this new Lancet article authored by Christopher Wildeman and Emily Wang. Here is the summary:
In this Series paper, we examine how mass incarceration shapes inequality in health. The USA is the world leader in incarceration, which disproportionately affects black populations. Nearly one in three black men will ever be imprisoned, and nearly half of black women currently have a family member or extended family member who is in prison. However, until recently the public health implications of mass incarceration were unclear. Most research in this area has focused on the health of current and former inmates, with findings suggesting that incarceration could produce some short-term improvements in physical health during imprisonment but has profoundly harmful effects on physical and mental health after release. The emerging literature on the family and community effects of mass incarceration points to negative health impacts on the female partners and children of incarcerated men, and raises concerns that excessive incarceration could harm entire communities and thus might partly underlie health disparities both in the USA and between the USA and other developed countries. Research into interventions, policies, and practices that could mitigate the harms of incarceration and the post-incarceration period is urgently needed, particularly studies using rigorous experimental or quasi-experimental designs.
The Lancet piece is behind a pay-wall; this Atlantic article provides a helpful account of its themes. Here is an excerpt from the Atlantic coverage:
For children and communities, the impacts of a parent’s incarceration are unequivocally bad, write study authors Christopher Wildeman of Cornell University and Emily Wang of Yale. Kids whose fathers go to jail are at increased risk of depression, anxiety, learning disabilities, and obesity, and they are more likely to do drugs later in life. Because criminal records dampen job opportunities, according to some studies people who live in neighborhoods with high levels of incarceration are more likely to experience asthma from dilapidated housing. These consequences are especially severe for children of color: Because black men are jailed disproportionately, a black child born in 1990 had a one-in-four chance of having their father imprisoned, Wildeman and Wong write.
When imprisoned fathers return home, “they have trouble finding employment,” says Kristin Turney, a sociologist at the University of California, Irvine, who has studied the health of inmates’ children but was not involved with the study. Part of the explanation is reduced income, she said, and “part of it is the relationship between the parents. Maintaining romantic partnerships while incarcerated is tricky, so it can lead to more [familial] conflict.”
But, paradoxically, going to prison can actually improve health — at least temporarily — for some inmates. Black male inmates, the authors write, have a lower mortality rate than similarly aged black men who aren’t in jail. The reason? The risk of death from violent accidents, overdoses on drugs or alcohol, and homicides is much lower in prison than it is in the neighborhoods where these men would be living otherwise. What’s more, before the Affordable Care Act was passed, many states made it all but impossible for low-income, childless men to obtain health care. Under the ACA, 32 states expanded Medicaid to cover all poor adults, but 19 have not. Because of that, Wildeman and Wang write, prison is the first time many incarcerated young men receive regular health care.
The drop in mortality “is just an indicator of how dangerous the environment for African-Americans is on the outside, rather than being a function of how good the medical care is that they’re receiving” in prison, Wildeman told me. (This health boost excludes the effect of solitary confinement, which has well-known, horrific consequences for mental health.)
Reviewing the "tough-and-tougher" sentencing perspectives of those now leading the Justice Department
The Washington Post has this extended new article reviewing a lot of the old tough-on-crime comments by AG Jeff Sessions and his new right-hand man, Steve Cook. The article is headlined "How Jeff Sessions wants to bring back the war on drugs," and here is how it gets started (with one important phrase emphasized at the end):
When the Obama administration launched a sweeping policy to reduce harsh prison sentences for nonviolent drug offenders, rave reviews came from across the political spectrum. Civil rights groups and the Koch brothers praised Obama for his efforts, saying he was making the criminal justice system more humane.
But there was one person who watched these developments with some horror. Steven H. Cook, a former street cop who became a federal prosecutor based in Knoxville, Tenn., saw nothing wrong with how the system worked — not the life sentences for drug charges, not the huge growth of the prison population. And he went everywhere — Bill O’Reilly’s show on Fox News, congressional hearings, public panels — to spread a different gospel. “The federal criminal justice system simply is not broken. In fact, it’s working exactly as designed,” Cook said at a criminal justice panel at The Washington Post last year.
The Obama administration largely ignored Cook, who was then president of the National Association of Assistant U.S. Attorneys. But he won’t be overlooked anymore. Attorney General Jeff Sessions has brought Cook into his inner circle at the Justice Department, appointing him to be one of his top lieutenants to help undo the criminal justice policies of Obama and former attorney general Eric H. Holder Jr. As Sessions has traveled to different cities to preach his tough-on-crime philosophy, Cook has been at his side.
Sessions has yet to announce specific policy changes, but Cook’s new perch speaks volumes about where the Justice Department is headed. Law enforcement officials say that Sessions and Cook are preparing a plan to prosecute more drug and gun cases and pursue mandatory minimum sentences. The two men are eager to bring back the national crime strategy of the 1980s and ’90s from the peak of the drug war, an approach that had fallen out of favor in recent years as minority communities grappled with the effects of mass incarceration.
Crime is near historic lows in the United States, but Sessions says that the spike in homicides in several cities, including Chicago, is a harbinger of a “dangerous new trend” in America that requires a tough response. “Our nation needs to say clearly once again that using drugs is bad,” Sessions said to law enforcement officials in a speech in Richmond last month. “It will destroy your life.”
Advocates of criminal justice reform argue that Sessions and Cook are going in the wrong direction — back to a strategy that tore apart families and sent low-level drug offenders, disproportionately minority citizens, to prison for long sentences. “They are throwing decades of improved techniques and technologies out the window in favor of a failed approach,” said Kevin Ring, president of Families Against Mandatory Minimums (FAMM).
But Cook, whose views are supported by other federal prosecutors, sees himself as a dedicated assistant U.S. attorney who for years has tried to protect neighborhoods ravaged by crime. He has called FAMM and organizations like it “anti-law enforcement groups.”
The records of Cook and Sessions show that while others have grown eager in recent years to rework the criminal justice system, they have repeatedly fought to keep its toughest edges, including winning a battle in Congress last year to defeat a reform bill. “If hard-line means that my focus is on protecting communities from violent felons and drug traffickers, then I’m guilty,” Cook said in a recent interview with The Post. “I don’t think that’s hard-line. I think that’s exactly what the American people expect of their Department of Justice.”
The phrase I have stressed above is the phrase that ultimately matters most for the foreseeable future of the federal criminal justice system. Though the Attorney General and others senior DOJ officials can and will define and shape the basic policies for federal charging and sentencing, it is local federal prosecutors around the nation who really determine how these policies get implemented and who, collectively, have the greatest impact on prosecutorial and punishment practices. And I surmise that a whole lot of federal prosecutors — not all, but many and perhaps most — embrace the "tough-on-crime" philosophy that AG Sessions espouses more than the "smart-on-crime" mantra that former AG Holder eventually espoused.