January 14, 2017
"Punishment and Moral Risk"
The title of this post is the title of this intriguing new paper authored by Adam Kolber now available via SSRN. Here is the abstract:
For every interesting moral question, we should have at least some doubt that we know the right answer. Legal theorists ignore this moral uncertainty at their peril. To take one important example, for retributivists to inflict punishment, they must believe not only that a defendant is guilty but that all other prerequisites for deserved punishment are satisfied as well. They must believe offenders have free will, even though philosophers have debated the topic for centuries. They must believe offenders can be punished proportionally, even though no one has convincingly determined how to assess proportionality. And they must believe it appropriate to make offenders suffer as a response to the suffering they caused, even though some find this view barbaric.
These retributivist commitments, along with several others, are clearly controversial. One would be hard-pressed to believe a single one — let alone the conjunction — with the 95% or 99% confidence frequently attributed to the beyond-a-reasonable doubt standard used to assess guilt. Reasonable retributivists, I argue, face too much uncertainty to justify punishment under the standard of proof they would likely set for themselves. Consequentialists, by contrast, are less vulnerable to this challenge. They can accept greater risk when punishing because they face countervailing risk by failing to adequately punish.
More generally, I argue that we hold not just beliefs but “portfolios of beliefs” that can exacerbate or hedge moral risks. These portfolios sometimes do a better job of explaining our moral and legal views than existing theories, and I show how “epistemic hybrid” theories that combine retributivism and consequentialism can avoid the inconsistencies facing current hybrid theories. We are not necessarily retributivists or consequentialists but, say, 60%-retributivists or 90%-consequentialists. Portfolios of beliefs can also help us understand other areas of law and morality, such as the perplexities of threshold deontology and the puzzles of tort law. Indeed, portfolios of beliefs may not only explain our beliefs but also offer normatively appealing alternatives to our existing theories that fail to take moral risk into account.
January 13, 2017
Supreme Court grants cert on four new criminal cases and a dozen others
After a seemingly long quiet period of avoiding taking on too many new cases, the Supreme Court this afternoon issued this order list which grants cert on 16(!) new cases. I believe these four cases from the list are the only criminal ones, with links to case pages and descriptions via SCOTUSblog:
WEAVER, KENTEL M. V. MASSACHUSETTS: Whether a defendant asserting ineffective assistance that results in a structural error must, in addition to demonstrating deficient performance, show that he was prejudiced by counsel's ineffectiveness, as held by four circuits and five state courts of last resort; or whether prejudice is presumed in such cases, as held by four other circuits and two state high courts.
MASLENJAK, DIVNA V. UNITED STATES: Whether the U.S. Court of Appeals for the 6th Circuit erred by holding, in direct conflict with the U.S. Courts of Appeals for the 1st, 4th, 7th and 9th Circuits, that a naturalized American citizen can be stripped of her citizenship in a criminal proceeding based on an immaterial false statement.
McWILLIAMS, JAMES E. V. DUNN, COMM'R, AL DOC, ET AL.: Whether, when this court held in Ake v. Oklahoma that an indigent defendant is entitled to meaningful expert assistance for the “evaluation, preparation, and presentation of the defense,” it clearly established that the expert should be independent of the prosecution.
DAVILA, ERICK D. V. DAVIS, DIR., TX DCJ : Whether the rule established in Martinez v. Ryan and Trevino v. Thaler, that ineffective state habeas counsel can be seen as cause to overcome the procedural default of a substantial ineffective assistance of trial counsel claim, also applies to procedurally defaulted, but substantial, ineffective assistance of appellate counsel claims.
Most of these cases look intricate, and maybe Maslenjak could even be viewed as a kind of sentencing case. But, on first look, I see no brewing blockbusters.
UPDATE: Over at Crime & Consequences here, Kent Scheidegger shares some initial reactions to this quartet of new SCOTUS criminal cases.
Long-serving US Attorney expected to be named for key Deputy Attorney General position in Justice Department
As reported here by CNN, "President-elect Donald Trump is expected to nominate Baltimore US Attorney Rod Rosenstein for deputy attorney general, according to people close to the Trump transition." Here is more:
Rosenstein is the longest serving US attorney at the Justice Department, having won unanimous Senate confirmation to his current post in 2005 under the administration of President George W. Bush. He's well-regarded in the department and stayed on as the top federal prosecutor in Baltimore under the Obama administration. The then-Democratic-controlled Senate refused to confirm his 2007 nomination to the Fourth Circuit Court of Appeals.
Trump has allowed his Cabinet nominees to play a major role in helping fill top positions in their agencies, a strategy past administrations haven't always followed. Sessions, a former US attorney in Alabama, helped choose Rosenstein, transition officials say, in part because of his deep ties to the Justice Department. Despite initial objections by Democrats, Sessions is expected to easily win confirmation.
The deputy attorney general leads day-to-day management of the 111,000 employees of the Justice Department. Sessions has plans to make violent crime reduction a major part of his focus. In Baltimore, Rosenstein has pursued strategies to use federal agencies including the Drug Enforcement Administration and the Bureau of Alcohol Tobacco Firearms and Explosives to help local authorities tackle high crime rates.
It is my understanding that the Deputy AG typically has even more hands-on impact on criminal justice policies and practices than does the AG, and thus folks especially interested or concerned about future DOJ sentencing reform efforts ought to be taking a close look at Rosenstein. This profile of Rosenstein from 2011 in the Washington Post paints a favorable picture, and his history working in the last two Democratic Administration's lead me to be optimistic that Rosenstein may be the perfect persons to help shepherd bipartisan sentencing reforms efforts through Congress.
New ACLU report details unique harms of solitary confinement for prisoners with physical disabilities
The American Civil Liberties Union has released this big report to spotlight particular problems for a particular prison population subject to solitary confinement. The ACLU report is titled "Caged In: Solitary Confinement's Devastating Harm on Prisoner's With Physical Disabilities," and here is how the report is summarized at this webpage:
This report provides a first-ever national ACLU account of the suffering prisoners with physical disabilities experience in solitary confinement. It spotlights the dangers for blind people, Deaf people, people who are unable to walk without assistance, and people with other physical disabilities who are being held in small cells for 22 hours a day or longer, for days, months, and even years. Solitary confinement is a punishing environment that endangers the well-being of people with physical disabilities and often violates the Americans with Disabilities Act. The report’s revelations about the particular harms of solitary on people with physical disabilities shows the urgent need for far better accounting of the problems they face and the development of solutions to those problems.
January 12, 2017
"Mistakes and Justice — Using the Pardon Power to Remedy a Mistake of Law"
The title of this post is the title of this notable new article by Paul Larkin now available via SSRN. Here is the abstract:
American criminal law has never recognized a mistake-of-law defense. The principal rationale for rejecting it has been that the community knows what the criminal law prohibits. That may have been a reasonable rule when there were only a handful of crimes, and each one also violated the contemporary moral code, but that rule makes no sense today, given the use of the criminal law to enforce thousands of sometimes technical, arcane administrative regulations. Clemency, however, may be a perfect vehicle for the implementation of a mistake- or ignorance-of-the-law defense.
Throughout Anglo-American legal history, kings, presidents, and governors have used their pardon power as a vehicle to remedy injustices in the criminal justice system. The conviction of a person for conduct that no reasonable person would have thought to be a crime certainly qualifies as a miscarriage of justice. Presidents and governors should consider using their clemency authority to pardon legitimate cases of mistake or ignorance, which might particularly arise in connection with strict criminal liability or regulatory crimes.
New report spotlights five Florida counties often condemning to death murderers have mental impairments
A few weeks ago, as noted in this prior post, Harvard Law School's Fair Punishment Project (FPP) released a report detailing and lamenting the composition of Oregon's death row under the title "Oregon’s Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments." Today, FPP has this new report bringing a similar analysis and criticism to a portion of a different state. This new report is titled "Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments in Five Florida Counties," and here are excerpts from the introduction:
The Florida Supreme Court recently held that the state’s capital punishment statute is unconstitutional. Approximately 380 people sentenced to death under the now-invalidated sentencing scheme remain on the death row. While litigation is still pending over whether the decision applies to all Florida death sentences, the Court has clarified that the approximately 150 people who were convicted after the Ring v. Arizona decision in 2002 must have their sentences reconsidered. Roughly one-third of these individuals convicted since 2002 come from just five of Florida’s 67 counties: Duval, Miami-Dade, Hillsborough, Orange, and Pinellas.
This report examines the 48 invalidated death sentences from these five Florida counties. We examined legal pleadings and opinions, trial testimony, and media reports, and consulted with several legal experts in Florida who are familiar with the individuals on death row.
Our research revealed that 63 percent of these individuals exhibit signs of serious mental illness or intellectual impairment, endured devastatingly severe childhood trauma, or were not old enough to legally purchase alcohol at the time the offense occurred. The pervasiveness of these crippling impairments among Florida’s death row population is significant when evaluating whether the death penalty was the appropriate sentence. Although all murders are gruesome and deserving of serious sanction, the Constitution limits the death penalty to the most heinous murders. Even then, the Constitution and established Supreme Court doctrine have limited application of the death penalty to adults who exhibits mental and emotional functioning that is equal to or exceeds that of the typically developed adult. So, for example, the U.S. Supreme Court has held that, regardless of the severity of the crime, the death penalty cannot be imposed upon a juvenile or an intellectually disabled person, both classes of individuals who suffer from impaired mental and emotional capacity relative to typically developed adults. To do otherwise would be so disproportionate as to violate his or her “inherent dignity as a human being.”
New Jersey Supreme Court addresses Miller's application to all serious juve sentencings
As reported in this local article, the top court in the Garden State "ruled unanimously Wednesday to overhaul the way New Jersey judges sentence juveniles convicted in violent crimes that could keep them in prison until they are elderly or dead." Here is more from the press report on the opinion:
The state's highest court ruled 7-0 that judges must consider a number of factors -- including age, family environment, and peer pressure -- before issuing lengthy sentences to youths in serious cases. Peter Verniero, a former state Supreme Court justice and state attorney general, said this is "one of the most significant sentencing decisions" the court has made in "many years."
And in a rare move, the court also urged the New Jersey Legislature to revise the state's current law on juvenile sentencing to "avoid a potential constitutional challenge in the future," according to the decision, written by Chief Justice Stuart Rabner.
The decision is the result of appeals filed by a pair of men who were convicted separately of violent crimes years ago in Essex County when they were 17 and were sentenced to decades in prison. Ricky Zuber was convicted for his role in two gang rapes in 1981 and was sentenced to 110 years in prison. He would not have been eligible for parole for 55 years -- a time when he would be 72. James Comer was convicted of four armed robberies in 2000, including one where an accomplice shot and killed a victim. He would have become eligible for parole when he was 85 -- after having served 68 years.
Rabner wrote that judges in both cases did not take "age or related circumstances" into account when issuing the sentences. But, Rabner said, the U.S. Supreme Court has since "sent a clear message" that "children are different" from adults and that "youth and its attendant characteristics" must be considered when sentencing a juvenile to life in prison without parole.
"Because of their young age at the time of their crimes, both defendants can expect to spend more than a half century in jail before they may be released -- longer than the time served by some adults convicted of first-degree murder," Rabner wrote.
Rabner cited how in a 2012 decision called Miller v. Alabama, the U.S. Supreme Court ruled that judges presiding over cases involving juveniles facing life sentences without parole must consider a number of factors before sentencing. Those include immaturity; family and home environment; family and peer pressures; an"inability to deal with police officers or prosecutors" or their own attorney; and "the possibility of rehabilitation."
But New Jersey's Supreme Court went further, saying those standards must be applied not only to sentences of life without parole but also to youths who face lengthy sentences. The court also cited a the Eighth Amendment of the U.S. Constitution, which protects defendants from "cruel and unusual punishment."
"Youth matters under the constitution," Rabner wrote.
The full opinion is available at this link, and it covers a lot of important post-Graham and post-Miller ground concerning juvenile sentencing.
January 12, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)
January 11, 2017
Texas completes first execution of 2017
As reported in this new AP piece, "Texas has executed death row inmate Christopher Wilkins, who was convicted of killing two men after one of them mocked him for falling for a phony drug deal." Here is more:
The lethal injection of the 48-year-old Wilkins Wednesday is the nation’s first execution this year. Twenty were carried out in the U.S. last year, the lowest number since the 1980s. Wilkins explained to jurors at his capital murder trial in 2008 how and why he killed his friends in Fort Worth three years earlier, saying he didn’t care if they sentenced him to death.
The Supreme Court declined to block Wilkins’ execution about three hours before the scheduled lethal injection. Wilkins’ attorneys had argued to the Supreme Court that he had poor legal help at his trial and during earlier appeals and that the courts improperly refused to authorize money for a more thorough investigation of those claims to support other appeals and a clemency petition.
In their unsuccessful appeal to the high court, Wilkins’ attorneys contended he had poor legal help at trial and during earlier appeals and that the courts improperly refused to authorize money for a more thorough investigation of his claims. State attorneys said courts have rejected similar appeals and that defense lawyers are simply employing delaying tactics.
Wilkins was released from prison in 2005 after serving time for a federal gun possession conviction. He drove a stolen truck to Fort Worth, where he befriended Willie Freeman, 40, and Mike Silva, 33. Court records show Freeman and his drug supplier, who wasn’t identified, duped Wilkins into paying $20 for a piece of gravel that he thought was a rock of crack cocaine. Wilkins said he shot Freeman on Oct. 28, 2005, after Freeman laughed about the scam, then he shot Silva because he was there. Wilkins’ fingerprints were found in Silva’s wrecked SUV and a pentagram matching one of Wilkins’ numerous tattoos had been carved into the hood.
Wilkins also testified that the day before the shootings, he shot and killed another man, Gilbert Vallejo, 47, outside a Fort Worth bar in a dispute over a pay phone, and about a week later used a stolen car to try to run down two people because he believed one of them had taken his sunglasses. “I know they are bad decisions,” Wilkins told jurors of his actions. “I make them anyway.”...
Twenty convicted killers were executed in the U.S. last year, the lowest number since the early 1980s. That tally includes seven executions in Texas — the fewest in the state since 1996. Wilkins is among nine Texas inmates already scheduled to die in the early months of 2017.
"Is Qualified Immunity Unlawful?"
The title of this post is the title of this provocative new article authored by William Baude and now available via SSRN. Here is the abstract:
The doctrine of qualified immunity operates as an unwritten defense to civil rights lawsuits brought under 42 U.S.C. § 1983. It prevents plaintiffs from recovering damages for violations of their constitutional rights unless the government official violated “clearly established law,” usually requiring a specific precedent on point. This article argues that the doctrine is unlawful and inconsistent with conventional principles of statutory interpretation.
Members of the Supreme Court have offered three different justifications for imposing such an unwritten defense on the text of Section 1983. One is that it derives from a common law “good faith” defense; another is that it compensates for an earlier putative mistake in broadening the statute; the third is that it provides “fair warning” to government officials, akin to the rule of lenity.
But on closer examination, each of these justifications falls apart, for a mix of historical, conceptual, and doctrinal reasons. There was no such defense; there was no such mistake; lenity ought not apply. And even if these things were otherwise, the doctrine of qualified immunity would not be the best response.
The unlawfulness of qualified immunity is of particular importance now. Despite the shoddy foundations, the Supreme Court has been reinforcing the doctrine of immunity in both formal and informal ways. In particular, the Court has given qualified immunity a privileged place on its agenda reserved for few other legal doctrines besides habeas deference. Rather than doubling down, the Court ought to be beating a retreat.
Though technically not a sentencing article, any conceptual and/or doctrinal strike against qualified immunity seems likely also to be a blow against the absolute immunity that right now protects from litigation scrutiny the sentencing decisions made by prosecutors and judges.
Great political and practical "state of reform" reviews via Jacobin
The magazine Jacobin has recently run two effective pieces by two effective writers about the politics and practicalities of modern sentencing reform efforts. Here are links to the lengthy pieces, both of which I recommend in full, with their introductions:
Many are mourning the death of comprehensive criminal justice reform at the federal level in the wake of the election of Donald Trump, who unabashedly campaigned as the law-and-order candidate. They fear we may be at the beginning of the end of the “smart-on-crime” era, in which historic adversaries across the political spectrum joined forces to reverse the punitive policies and politics that have turned the United States into the world’s leading warden.
Some have sought solace in the belief that Trump’s victory will have a limited impact because most people are apprehended, tried, and sentenced subject to state and local statutes and authorities, not federal ones, and that 90 percent of the more than 2 million people incarcerated today in the United States are serving their time in state prisons and county jails, not federal penitentiaries. They view Trump as a political meteorite that may have blown up the elite bipartisan reform coalition in Washington as it blazed through an uncharted political universe but left promising reform coalitions at the state and local levels largely intact.
This conventional postmortem paradoxically overestimates Trump’s responsibility for imperiling criminal justice reform at the national level while underestimating his likely impact on state and local reform efforts.
Trump’s outsized personality and spectacular victory obscure the reality that the smart-on-crime approach had severe limitations and weaknesses that have been hiding in plain sight for years. The politics that gave birth to this strange bedfellows coalition engineered by Right on Crime — a group of brand-name conservatives and libertarians that included Newt Gingrich, Grover Norquist, and Charles and David Koch — helps explain both its limited accomplishments and the triumph of Trumpism.
A ray of sunshine recently poked through the otherwise gloomy holiday headlines: “US prison population falling as crime rates stay low.” The prison population has indeed fallen, and crime rates are still down. But while the crime that politicians exploited to create mass incarceration has plummeted, the number of prisoners locked up in the name of public safety has only budged.
Mass incarceration, in short, remains a durable monstrosity.
As of 2015, an estimated 2,173,800 Americans were behind bars — 1,526,800 in prison and 728,200 in jails — according to recently released data from the Bureau of Justice Statistics. That’s 16,400 fewer people in jail and 35,500 fewer prisoners than in 2014 — a 2.3 percent decline and, for prisoners, the largest single-year drop since 1978. The 2015 figure also marks the lowest overall prison population since 2005. Crime rates have plunged, falling “to levels not seen since the late 1960s.”
But even as the US becomes a much safer country, it still incarcerates its citizens at much higher rates than most any other on earth. To put things in perspective, our prison archipelago today confines a population similar in size to the city of Houston or the borough of Queens.
At the dawn of mass incarceration in 1980, the US’s already-quite-large prison population was estimated at 329,821. To return to that number, the governments would have to replicate the recent 35,500-prisoner reduction for roughly thirty-four years in a row. That’s a very long time to wait for the poor communities — particularly but not exclusively brown and black ones — that mass incarceration devastates.
The criminal justice reform movement has stopped losing. But it hasn’t really started to win.
January 11, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)
January 10, 2017
Charleston Church shooter Dylann Roof sentencing to death by federal jury
As reported in this local article, only "a few hours after he told a crowded courtroom 'I still feel like I had to do it,' a federal jury sentenced Dylann Roof to death for carrying out a cold, calculated massacre inside Charleston's Emanuel AME Church in a bid to spark a race war." Here is more about an unsurprising verdict:
The 12-member panel – three white jurors, nine black – deliberated for a little less than three hours before unanimously deciding that the 22-year-old white supremacist should die for his crimes rather than spend his life in prison without the possibility of parole.
It will be up to the presiding judge to formally impose that sentence, but he is bound by law to follow the jury’s decision. U.S. District Judge Richard Gergel has scheduled the formal sentencing hearing for 9:30 a.m. Wednesday.
Roof, who sat stone-faced and silent through most of his hate crimes trial, betrayed no emotion as the jury’s verdict was read. During his closing argument earlier in the day, he passed on the chance to argue for his life, saying “I’m not sure what good that will do anyway.”
After the jury announced its verdict, Roof stood and asked the judge if he would appoint him new lawyers to help him file a request for a new trial. Gergel told Roof a significant amount has been spent on the current legal team that Roof sidelined for the trial's penalty phase, a team led by noted capital defense lawyer David Bruck. The judge said he would be "strongly disinclined" to bring in new lawyers at this point, but he will listen to any motions Roof wants to make during Wednesday's proceedings.
Earlier in the day, Roof told the jury that prosecutors don't understand him or the meaning of hate in their quest to put him to death for the June 2015 church massacre. “Anyone, including the prosecution, who thinks I am filled with hate has no idea what real hate is,” Roof said, speaking to jurors from a podium about eight feet away from the jury box. “They don’t know anything about hate."
After Assistant U.S. Attorney Jay Richardson delivered a two-hour closing statement, Roof walked to the podium with a single sheet of yellow notebook paper. He appeared to read from it, pausing at times to glance down. His remarks lasted less than five minutes.
Interesting new report on impact of Prop 47 on drug arrests in California
Via email I received notice of this notable new research report, titled "Declinining Drug Enforcement After Proposition 47," coming from the Center on Juvenile and Criminal Justice and the Drug Policy Alliance. This executive summary provides the report's highlights:
In November 2014, California took a significant step toward reforming mass criminalization and over-incarceration by passing Proposition 47, a law that changed certain low-level crimes from potential felonies to misdemeanors, prioritizing drug treatment over punishment. Prop 47 reclassified three drug possession offenses (possession of a narcotic, concentrated cannabis, or a non-narcotic) and reinvested state savings in direct services. In 2015, the first full year after Prop 47, felony drug arrests fell by over 92,000 while misdemeanor drug arrests increased by only 70,000. Taken together, these shifts produced a 10 percent decline in total drug arrests.
In response to Prop 47’s reclassification statute, some law enforcement departments began redirecting drug enforcement resources to community policing or the enforcement of other, more serious, offenses. Critics of the policy, however, claim that it limits police authority and constrains the effectiveness of drug control, a contention that has led some law enforcement agencies to deemphasize the enforcement of Proposition 47-related offenses.
This report seeks to understand how enforcement and prosecution of drug possession offenses have changed after Prop 47 by analyzing arrests and citations made by Los Angeles and San Diego law enforcement, and charges filed by county prosecutors. Some of the findings include:
• Prop 47 reduced inconsistencies in the classification of drug possession offenses as felonies or misdemeanors. Prior to Prop 47, qualifying drug possession offenses could be prosecuted as misdemeanors, felonies, or “wobblers.” After the passage of Prop 47, these offenses are filed as misdemeanors, eliminating prosecutorial discretion and the presence of “justice-by-geography,” which can disproportionately impact low income communities and communities of color.
• Drug arrests and citations were increasing in the years immediately preceding Prop 47. From 2010-2014, arrests and citations for Prop 47 drug possession offenses increased in 72 percent of law enforcement agencies in Los Angeles and San Diego counties. Between 2014-2015, 58 percent of agencies reported declines.
• Arrests and citations declined after Prop 47, but varied by county, city, and substance. For example, while both San Diego and Los Angeles counties experienced declines in arrests and citations, Los Angles reported a decrease of 45 percent while San Diego reported 7 percent decline.
AG-nominee Jeff Sessions puts focus on crime in opening statement before confirmation hearing
Via Politico, here is the text of Attorney General nominee Jeff Sessions' full opening statement to the Senate Judiciary Committee, as prepared for delivery. And here are some excerpts that highlight its crime-fighting tone, as well as some of the effort to thwart certain criticisms already lodged against the nomination:
Protecting the people of this country from crime, and especially from violent crime, is the high calling of the men and women of the Department of Justice. Today, I am afraid, that has become more important than ever.
Since the early 1980s, good policing and prosecutions have been a strong force in reducing crime. Drug use and murders are half what they were in 1980. I am very concerned, however, that the recent jump in the violent crime and murder rates are not anomalies, but the beginning of a dangerous trend that could reverse the hard won gains that have made America a safer and more prosperous place. The latest official FBI statistics show that all crime increased nearly 4 percent from 2014 to 2015 with murders increasing nearly 11 percent — the largest single year increase since 1971. In 2016, there were 4,368 shooting victims in Chicago. In Baltimore, homicides reached the second highest per-capita rate ever.
The country is also in the throes of a heroin epidemic, with overdose deaths more than tripling between 2010 and 2014. Meanwhile, illegal drugs flood across our southern border and into every city and town in the country, bringing violence, addiction, and misery.
We must not lose perspective when discussing these statistics. We must always remember that these crimes are being committed against real people, real victims. It is important that they are kept in the forefront of our minds in these conversations, and to ensure that their rights are always protected.
These trends cannot continue. It is a fundamental civil right to be safe in your home and your community. If I am confirmed, we will systematically prosecute criminals who use guns in committing crimes. As United States Attorney, my office was a national leader in gun prosecutions every year. We will partner with state and local law enforcement to take down drug trafficking cartels and dismantle gangs. We will prosecute those who repeatedly violate our borders. It will be my priority to confront these crises vigorously, effectively, and immediately.
Approximately 90 percent of all law enforcement officers are not federal, but local and state. They are the ones on the front lines. They are better educated, trained and equipped than ever before. They are the ones who we rely on to keep our neighborhoods, and playgrounds, and schools safe. But in the last several years, law enforcement as a whole has been unfairly maligned and blamed for the actions of a few bad actors and for allegations about police that were not true. They believe the political leadership of this country abandoned them. They felt they had become targets. Morale has suffered. And last year, while under intense public criticism, the number of police officers killed in the line of duty increased ten percent over 2015. This is a wake up call. This must not continue.
If we are to be more effective in dealing with rising crime, we will have to rely heavily on local law enforcement to lead the way. To do that, they must know that they are supported. If I am so fortunate as to be confirmed as Attorney General, they can be assured that they will have my support.
As I discussed with many of you in our meetings prior to this hearing, the federal government has an important role to play in this area. We must use the research and expertise of the Department of Justice to help them in developing the most effective and lawful enforcement methods to reduce crime. We must re-establish and strengthen the partnership between federal and local officers to enhance a common and unified effort to reverse the current rising crime trends. I did this as United States Attorney. I worked directly and continuously with state and local law enforcement officials. If confirmed, it will be one of my primary objectives....
In recent years, our law enforcement officers also have been called upon to protect our country from the rising threat of terrorism that has reached our shores. If I am confirmed, protecting the American people from the scourge of radical Islamic terrorism will continue to be a top priority of the Department of Justice. We will work diligently to respond to threats, using all lawful means to keep the American people safe from our nation’s enemies. Partnerships will also be vital to achieving much more effective enforcement against cyber threats, and the Department of Justice clearly has a lead role to play in that essential effort. We must honestly assess our vulnerabilities and have a clear plan for defense, as well as offense, when it comes to America’s cybersecurity.
The Department of Justice must never falter in its obligation to protect the civil rights of every American, particularly those who are most vulnerable. A special priority for me in this regard will be aggressive enforcement of our laws to ensure access to the ballot for every eligible American voter, without hindrance or discrimination, and to ensure the integrity of the electoral process....
You can be absolutely sure that I understand the immense responsibility I would have. I am not naïve. I know the threat that our rising crime and addiction rates pose to the health and safety of our country. I know the threat of terrorism. I deeply understand the history of civil rights and the horrendous impact that relentless and systemic discrimination and the denial of voting rights has had on our African-American brothers and sisters. I have witnessed it. I understand the demands for justice and fairness made by the LGBT community. I understand the lifelong scars born by women who are victims of assault and abuse.
A few prior related posts on AG-nominee Sessions:
- Some notable comments from Senator (and AG nominee) Sessions about limiting federal crimes and prosecutorial discretion
- Making the case for AG-nominee Jeff Sessions as an advocate for crime victims
- Recalling the work of AG-designee Senator Jeff Sessions on crack/powder sentencing reform
- Bring it, Jeff: why I seriously doubt future AG Sessions will start a foolish new weed war federal offensive
- Why I think at the hearings for AG, Senators should try to kill... question with conservative kindness
"Want to fix gun violence in America? Go local."
The title of this post is the headline of this new Guardian special report that does an impressive job mapping and unpacking the locales of gun violence throughout the United States. Here is how it gets started:
The map of America’s gun violence epidemic can seem overwhelming. There were more than 13,000 gun homicides in the US in 2015, across nearly 3,500 cities and towns. But the toll of this gun violence was not distributed equally.
Half of America's gun homicides in 2015 were clustered in just 127 cities and towns, according to a new geographic analysis by the Guardian, even though they contain less than a quarter of the nation’s population.
Even within those cities, violence is further concentrated in the tiny neighborhood areas that saw two or more gun homicide incidents in a single year.
Four and a half million Americans live in areas of these cities with the highest numbers of gun homicide, which are marked by intense poverty, low levels of education, and racial segregation. Geographically, these neighborhood areas are small: a total of about 1,200 neighborhood census tracts, which, laid side by side, would fit into an area just 42 miles wide by 42 miles long.
The problem they face is devastating. Though these neighborhood areas contain just 1.5% of the country’s population, they saw 26% of America’s total gun homicides.
Gun control advocates say it is unacceptable that Americans overall are "25 times more likely to be murdered with a gun than people in other developed countries". People who live in these neighborhood areas face an average gun homicide rate about 400 times higher than the rate across those high-income countries.
Understanding this dramatic clustering of America’s of gun violence is crucial for the effort to save more lives. “We can’t do much about crime prevention of homicide if we try to attack it as a broad, global problem, throwing money at it in a sort of broad, global way,” said David Weisburd, a leading researcher on the geographic distribution of crime at George Mason University.
America’s gun policy debate is usually driven by high-profile mass shootings that seem to strike at random, and it focuses on sweeping federal gun control or mental health policies. But much of America’s gun homicide problem happens in a relatively small number of predictable places, often driven by predictable groups of high-risk people, and its burden is anything but random.
The concentration of gun homicides in certain census tracts mirrors what criminologists have discovered when they look at crime patterns within individual cities: roughly 1.5% of street segments in cities see about 25% of crime incidents, a trend dubbed “the law of crime concentration”.
January 9, 2017
FBI stats for first half of 2016 show increases in "all of the offenses in the violent crime category"
This new FBI press release, titled simply "FBI Releases Preliminary Semiannual Crime Statistics for 2016," provides sober news about violent crime in the United States during the first part of 2016. Here are the top-line particulars:
Statistics released today in the FBI’s Preliminary Semiannual Uniform Crime Report revealed overall increases in the number of violent crimes reported and overall declines in the number of property crimes reported for the first six months of 2016 when compared with figures for the first six months of 2015. The report is based on information from 13,366 law enforcement agencies that submitted three to six months of comparable data to the FBI’s Uniform Crime Reporting (UCR) Program for the first six months of 2015 and 2016.
◾ All of the offenses in the violent crime category—murder and non-negligent manslaughter, rape (revised definition), rape (legacy definition), aggravated assault, and robbery—showed increases when data from the first six months of 2016 were compared with data from the first six months of 2015. The number of aggravated assaults increased 6.5 percent, murders increased 5.2 percent, rapes (legacy definition) increased 4.4 percent, rapes (revised definition) rose 3.5 percent, and robbery offenses were up 3.2 percent.
◾ Violent crime increased in all city groupings. Among cities, violent crime rose the most over the previous year (9.7 percent) in those with populations of 1,000,000 and over. In cities with populations from 500,000 to 999,999, violent crime increased 5.2 percent, and in cities with 250,000 to 499,999 inhabitants, violent crime was up 4.3 percent.
◾ Violent crime increased 6.3 percent in metropolitan counties and rose 1.6 percent in nonmetropolitan counties.
◾ Violent crime increased in all four regions of the nation. These crimes were up 6.4 percent in the West, 5.9 percent in both the Midwest and in the South, and 1.2 percent in the Northeast.
◾ In the property crime category, offenses dropped 0.6 percent. Burglaries were down 3.4 percent, and larceny-thefts declined 0.8 percent. However, motor vehicle thefts increased 6.6 percent.
◾ Among the city population groups, there were both increases and decreases in the overall number of property crimes. Law enforcement agencies in cities with 1,000,000 and over populations reported the largest increase, 2.1 percent. Law enforcement agencies in cities with populations under 10,000 inhabitants reported the largest decrease, 3.5 percent.
◾ Property crime decreased 3.9 percent in nonmetropolitan counties and 1.5 percent in metropolitan counties.
◾ The West was the only region to show an increase (0.8 percent) in property crime. Reports of these offenses declined 2.4 percent in the Northeast, 1.3 percent in the Midwest, and 0.9 percent in the South.
There are many ways to mine and to spin these new FBI crime data (which can and should be understood even better in light of this FBI data on yearly changes over the last five years). But the simple headline and simple story is that violent crime increased somewhat significantly nationwide in the first half of 2016, especially in larger cities. And the simple consequence may be, as hearings for the next Attorney General are about to get started, that talk of major federal sentencing reforms may take a back seat to talk of new federal crime fighting measures.
"In the Mold of Scalia or Alito: Recent Criminal and Habeas Decisions of Judges Pryor and Sykes"
The title of this post is the title of this new and timely short piece authored by Scott Meisler now available via SSRN that ought to be of special interest to sentencing fans. Here is the abstract:
Recent press reports indicate that federal appellate judges William Pryor and Diane Sykes are among the finalists for the Supreme Court vacancy created by Justice Scalia’s death. But just as Justice Scalia and fellow conservative Justice Alito often differed on questions of criminal and habeas corpus procedure, so too have Judges Pryor and Sykes. This short essay analyzes four legal issues on which the two judges have recently reached contrary results or demonstrated different approaches — including two legal issues arising from Justice Scalia’s last major criminal procedure opinion, Johnson v. United States. The essay concludes that, though the decisions analyzed here represent only a small sample, they suggest that Judge Sykes’s approach to criminal procedure questions would more closely resemble Justice Scalia’s, while Judge Pryor’s would be more similar to that of Justice Alito.
January 9, 2017 in Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (4)
SCOTUS issues per curiam opinion strengthening claim of qualified immunity after police shootout
The Supreme Court's first big order list of 2017 had no cert grants, which I think provides still more evidence that the Justices are disinclined to take up much of note until they get a replacement for Justice Scalia. But the court found one case they could resolve through a summary opinion, White v. Pauly, No. 16–67 (S. Ct. Jan. 9, 2017) (available here). In this case, the Supreme Court vacating a split Tenth Circuit ruling that had denied qualified immunity to a New Mexico police officer after deadly shooting during a confrontation with armed suspects. Here is how the opinion starts and a key passage:
This case addresses the situation of an officer who — having arrived late at an ongoing police action and having witnessed shots being fired by one of several individuals in a house surrounded by other officers — shoots and kills an armed occupant of the house without first giving a warning....
This is not a case where it is obvious that there was a violation of clearly established law under Garner and Graham. Of note, the majority did not conclude that White’s conduct — such as his failure to shout a warning — constituted a run-of-the-mill Fourth Amendment violation. Indeed, it recognized that “this case presents a unique set of facts and circumstances” in light of White’s late arrival on the scene. 814 F.3d, at 1077. This alone should have been an important indication to the majority that White’s conduct did not violate a “clearly established” right. Clearly established federal law does not prohibit a reasonable officer who arrives late to an ongoing police action in circumstances like this from assuming that proper procedures, such as officer identification, have already been followed. No settled Fourth Amendment principle requires that officer to second-guess the earlier steps already taken by his or her fellow officers in instances like the one White confronted here.
Th per curiam opinion closes with a lot of nuance as to what the Justices were not deciding, and a concurring opinion by Justice Ginsburg highlights that point.
Will new Trump Justice Department seek death penalty for Fort Lauderdale airport mass murderer given apparent mental illness?
The question in the title of this post emerges from the news of federal charges filed and a planned court appearance for Esteban Santiago. This Reuters article, headlined "Florida airport shooting suspect due in court Monday, could face death penalty," provides the details:
The 26-year-old Iraq war veteran accused of killing five people at a busy Florida airport in the latest U.S. gun rampage was due to appear in a federal court on Monday on charges that could bring him the death penalty.
Esteban Santiago, who had a history of erratic behavior, has admitted to investigators that he planned Friday's attack in Fort Lauderdale and bought a one-way ticket from his home in Alaska to carry it out, according to a criminal complaint.
Authorities say they have not ruled out terrorism as a motive and that they are investigating whether mental illness played a role. In November, Santiago went to a Federal Bureau of Investigation office in Anchorage and told agents he believed U.S. spies were controlling his mind.
Bond for Santiago, who is being held at the Broward County Jail in Fort Lauderdale, may be set at the hearing scheduled for 11 a.m. EST on Monday near Fort Lauderdale, and he would be assigned a public defender if he cannot afford his own lawyer. He could face the death penalty if convicted on charges of carrying out violence at an airport, using a firearm during a violent act, and killing with a firearm. But it may be months before prosecutors reveal what lies in Santiago's future.
"They've then got two weeks to indict him, and then they've got to go through the whole death penalty review," said former federal prosecutor David Weinstein, who is now a partner with Miami law firm Clarke Silverglate. Executions have been on hold in Florida since the U.S. Supreme Court struck down the state's death penalty laws a year ago. The Florida Supreme Court overturned a rewritten version in October....
Information surfaced over the weekend that police in Alaska took a handgun from Santiago in November after he told FBI agents there his mind was being controlled by a U.S. intelligence agency. They returned it to him about a month later after a medical evaluation found he was not mentally ill....
Santiago served from 2007 to 2016 in the Puerto Rico and Alaska national guards, including a deployment to Iraq from 2010 to 2011, according to the Pentagon. Relatives have said he acted erratically since returning from Iraq.
The on-going federal capital trial of the Charleston church mass murderer Dylann Roof has prompted a number of folks, especially those in the abolitionist community, to be talking about mental illness and the inappropriateness of sentencing a mentally disturbed individual to death. Those discussions and debates would surely reach another level if (dare I say when) the incoming Trump Administration and its new Attorney General decide to pursue capital charges against Esteban Santiago.
January 8, 2017
SCOTUS back in action with booking fee process as first notable criminal case of 2017
The Supreme Court returns to action tomorrow morning, and the Court's January sitting only has a couple cases that should be of serious interest to criminal justice fans. But the very first case slated for the very first 2017 oral argument is one of procedural note, Nelson v. Colorado. The folks over at SCOTUSblog have provided this preview by Steve Vladeck, which starts and ends this way:
Every jurisdiction in the United States requires at least some criminal defendants to make certain payments to the government tied to their convictions. And if a defendant’s conviction is subsequently vacated — whether on appeal or through collateral post-conviction proceedings — virtually every jurisdiction directly returns those funds to the acquitted individual. Colorado does not. Instead, according to the Colorado Supreme Court, criminal defendants seeking a return of funds paid in conjunction with a later-vacated conviction must bring a separate civil suit under a Colorado statute — the Exoneration Act — in which, among other burdens, plaintiffs apparently have to prove their actual innocence by clear and convincing evidence in order to recover. The very first argument the justices will hear in 2017 — Nelson v. Colorado — raises the question whether this seemingly unique scheme violates the due process clause of the 14th Amendment....
Although it is often difficult to predict from an oral argument how the justices are likely to rule, the sharp distinctions in how the parties have framed the issue in this case may allow for more than the usual tea-leaf reading at next Monday’s argument. The more the questioning focuses on distinctions between the different types of payments made by Nelson and Madden, and the state’s interest in collecting and preserving those funds, the more it may bode well for Colorado. But the more the justices’ attention appears drawn to how poor a fit the Exoneration Act actually is for defendants like these, the more likely the court will be to reverse. After all, as Nelson and Madden conclude in their reply brief, Colorado appears to be the first and only jurisdiction in the United States “to require successful appellants to prove their innocence by any standard to get their money back when their convictions are reversed.” If that fact seems to trouble enough of the justices during their first argument of the new year, then a reversal may well be in the offing.
Why I think at the hearings for AG, Senators should try to kill... question with conservative kindness
This new Washington Post article, headlined "Jeff Sessions should have been a tough sell in the Senate, but he’s too nice," details some reasons behind my thinking that it is unwise for advocates of criminal justice reform to adopt an overly aggressive opposition posture to Prez-Elect Donald Trump's nominee for Attorney General, Senator Jeff Sessions. Here are excerpts from the piece, with a few lines emphasized for commentary to follow:
He is one of the more well-liked members of the Senate, a place that still retains elements of one of the world’s most exclusive clubs. He is genial, respectful and patient toward colleagues and staff. And that has given fellow Republicans and even some Democrats reason not to scrutinize the more unsavory allegations of his political history.
Take Sen. Susan Collins, a moderate Republican from Maine who, under other circumstances, might be a target for Democrats to peel off in hopes of defeating Sessions’s nomination. Instead, she’s his lead spokeswoman.... “He’s a decent individual with a strong commitment to the rule of law. He’s a leader of integrity,” Collins said in an interview, dismissing attacks from liberal activists about his conservative views and his actions as a young prosecutor. “I think the attacks against him are not well-founded and are unfair.”...
“I genuinely like him,” said Sen. Christopher A. Coons (D-Del.), a member of the Judiciary Committee. Coons still might vote against Sessions because of the “stark differences” between the two on policy, but they are friends....
[M]ost senators tend to see Sessions in the same way Collins does — as a friendly man who never broke his word to them. Many have prayed with him and traveled with him on official overseas trips. Almost no one wants to review the original allegations against him during his 1986 nomination; for the most part, they don’t think that he is the racist that some have painted — at least not anymore. “I don’t know the dynamics of what happened then, but I can speak to Jeff’s character in the 20 years that I’ve known him,” Collins said....
One senator who has wanted to focus more on Sessions’s past on race is Sen. Tim Scott (R-S.C.), the chamber’s only black Republican. “I think judging a person on 30-year-old history is questionable. Eliminating or exempting 30-year-old history is probably not wise as well,” Scott said. “So, making sure that you understand what it actually was and who he is, has been an important part of what I’ve tried to do.”
Scott hosted Sessions in mid-December in North Charleston with activists who peppered him with questions about federal prosecution of a police officer who fatally shot a black man in the back. “The attorney general’s position has more impact on communities of color than perhaps any other nominee,” Scott said, adding that he was still considering the nomination.
By and large, senators want to focus on other topics. And there’s plenty there to discuss, from how Sessions would handle the deportation of illegal immigrants to allegations that in 1995, while serving as state attorney general, he supported the use of chain gangs for prisoner work.
Coons suggested that Sessions had so many staunchly conservative positions in “the recent past” that there was little need to relitigate the 1980s. He spent an hour with Sessions on Thursday talking about legal philosophy. Coons and Sessions have spent the past six years talking at the Senate’s weekly Bible study and working out together in the gym.
The lines I have stressed here highlights my belief that everyone interested in criminal justice reform ought to be looking toward the Sessions' hearing as a high-profile opportunity to make in a high-profile and high-impact way the strong conservative case for criminal justice reform (and especially federal sentencing reform). Particularly because it seems all but certain that Sessions will be confirmed as Attorney General, I hope that some folks inclined to oppose Sessions appreciate that it could be much more productive at this week's hearings to try to co-opt Sessions from the right rather than attack him from the left.
For the record, and as highlighted by this recent helpful Brennan Center analysis, I fully understand how Senator Sessions' record in the criminal justice arena makes so many advocates so concerned and so eager to fight. But these advocates should remember that, in just the past few years, a number of tough-on-crime GOP stalwarts like Senator Charles Grassley and Representative Jim Sensenbrenner have become vocal advocates for federal sentencing reform. Indeed, a large number of prominent GOP Senators on and off the Judiciary Committee have been vocal supporters of federal sentencing reform in some form — I am thinking here of Senator Cornyn, Cruz, Lee, Paul and Tillis among others — and these folks seem to view (rightly, in my opinion) sentencing reform as conservative cause.
Of particular importance in this context, especially given the passages stressed above, are what I might call the "equal justice" and "religious redemption" arguments for federal reforms. As noted in this prior post, Senator Sessions was an early and prominent voice calling for a reduction in the crack/powder 100-1 federal sentencing disparity. This suggests Sessions might in a hearing voice support for sentencing reforms intended to reduce unequal application of the harshest mandatory minimum sentencing terms. And all the references to prayer above leads me to think Sessions also could and would be moved by religious leaders talking about the importance of second chances (which, I surmise, help moved Senator Grassley and also fits with the huge and too-often-overlooked corrections part of the SRCA).
Even more fundamentally, though Senator Sessions has roots and a history supporting a big and tough federal criminal justice apparatus, lots of his GOP colleagues are very skeptical of federal prosecutorial powers, and for good reason. Notably, Senator Sessions has himself expressed concerns on the Senate floor about federal prosecutors "encroach[ing] upon the historic powers of our State and local law enforcement to enforce the law in their jurisdiction." Especially in the arena of marijuana reform and perhaps business crimes more generally, I also think Sessions could and should be questioned about the conservative case for keeping the federal Justice Department out of what are generally local matters.
In the end, this all may be wishful thinking on my part, a desire to turn a glass more than half-empty upside-down so that it looks close to half full. But given all the remarkable and important criminal justice reform work done and supported robustly in recent years by self-described conservatives, I am strongly disinclined to view Senator Sessions as a Darth-Vader-like character until he actually starts ordering the Justice Department to begin work on a Death Star.
A few prior related posts on the AG-nominee Sessions:
- Some notable comments from Senator (and AG nominee) Sessions about limiting federal crimes and prosecutorial discretion
- Making the case for AG-nominee Jeff Sessions as an advocate for crime victims
- Recalling the work of AG-designee Senator Jeff Sessions on crack/powder sentencing reform
- Bring it, Jeff: why I seriously doubt future AG Sessions will start a foolish new weed war federal offensive
"Mending the Federal Sentencing Guidelines Approach to Consideration of Juvenile Status"
The title of this post is the title of this notable new Harvard Law Review note. It gets started this way:
In a series of recent cases, the Supreme Court has reaffirmed the profound significance of a juvenile offender’s age in sentencing, seemingly rendering youth status a mandatory sentencing consideration as a constitutional matter — in at least some cases — and under the statutory sentencing directive. Still, as a matter of policy, the Federal Sentencing Guidelines (Guidelines) — the required starting point for sentencing courts in federal cases and the benchmark for assessing the reasonableness of a sentence for appellate courts — discourage consideration of an offender’s youth and related circumstances in determining whether to depart from the recommended statutory sentencing range. Though after United States v. Booker the Guidelines have been advisory only, the Court has recognized that even advisory Guidelines can, at times, exert an impermissible anchoring effect on sentencing courts.
This Note argues that Congress and the United States Sentencing Commission (Commission) should take seriously both the letter and spirit of the Court’s recent juveniles-are-different cases, which favor a return to a rehabilitative approach to young offenders. Congress should address apparent conflicts between its statutory sentencing schemes and these recent cases by expanding the range of sentencing options for juvenile offenders convicted in federal court, and the Commission should promulgate new rules regarding calculation of sentences for juveniles convicted as adults in federal court. Further, until such rules are promulgated, this Note contends that appellate courts should hesitate to presume reasonable within-Guideline sentences for juvenile offenders absent evidence that a sentencing court has considered age.
This Note proceeds in four parts. Part I provides a brief history of the Guidelines, from development through the Court’s attempts to clarify their place post Booker. Part II describes the history of the treatment of juvenile offenders in federal courts and details the Court’s recent juveniles-are-different sentencing jurisprudence. Part III argues that, for various reasons of law and policy, both Congress and the Commission should offer new guidance on how courts should approach the process of sentencing juvenile offenders convicted as adults. Finally, Part IV recommends statutory changes and amendments to the Guidelines.