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May 20, 2017

"Proportional Mens Rea and the Future of Criminal Code Reform"

The title of this post is the title of this new paper authored by Michael Serota and available via SSRN.  Here is the abstract:

This Essay argues that the principle of proportional mens rea — roughly, the idea that more blameworthy states of mind should be punished more severely, while less blameworthy states of mind should be punished more leniently — is central to the administration of justice, yet has largely been ignored by American criminal justice policies.  I contend that this oversight provides a key justification and source of guidance for future criminal code reform efforts, while explaining how a criminal code reform agenda premised on the principle of proportional mens rea might be realized as a matter of course.

The Essay is comprised of three parts. Part I sets forth the theory of proportional mens rea and criminal legislation animating this Essay.  Part II highlights the extent to which American criminal codes, as well as American sentencing policies more generally, fail to live up to this normative benchmark.  Part III then concludes with a discussion of the two main models of criminal code reform, what I respectively refer to as the thick model and the thin model, through which efforts to better align criminal codes with the principle of proportional mens rea might proceed.

May 20, 2017 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (4)

May 19, 2017

You be the federal judge: what sentence for former Rep Anthony Weiner for "transferring obscene material to a minor"?

As detailed in this New York Times article, "Anthony D. Weiner, the former Democratic congressman whose “sexting” scandals ended his political career and embroiled him in a tumultuous F.B.I. investigation of Hillary Clinton before the election, is to appear in a federal courtroom in Manhattan on Friday to enter a guilty plea." Here are more of the basics:

Mr. Weiner will plead guilty to a single charge of transferring obscene material to a minor, pursuant to a plea agreement with the United States attorney’s office in Manhattan, one of the people said. Mr. Weiner surrendered to the F.B.I. early Friday morning.  The federal authorities have been investigating reports that, beginning in January 2016, Mr. Weiner, then 51, exchanged sexually explicit messages with a 15-year-old girl in North Carolina.

The plea covers conduct by Mr. Weiner from January through March of last year, the person said.  A likely result of the plea is that Mr. Weiner would end up as a registered sex offender, although a final determination has yet to be made, the person added.

The charge carries a potential sentence of between zero and 10 years in prison, meaning Mr. Weiner could avoid prison.  The ultimate sentence would be determined by a judge.

Reports of the federal investigation surfaced in September after a British newspaper, The Daily Mail, reported that Mr. Weiner had engaged in an online relationship with the girl, which included explicit messages sent over social media and suggestive texts.

It was during the investigation that the F.B.I. seized Mr. Weiner’s electronic devices, including a laptop computer on which agents found a trove of emails to his estranged wife, Huma Abedin, a top aide to Mrs. Clinton.  That discovery led to the surprise announcement in late October by James B. Comey, then the F.B.I. director, that the bureau was conducting a new investigation into Mrs. Clinton’s handling of official email, an inquiry that ended two days before the election, with no charges brought....

The Daily Mail article said that Mr. Weiner began exchanging messages with the girl when she was a high school sophomore and that the messages indicated that Mr. Weiner knew that she was underage.  The newspaper, which did not identify the girl, said she did not want to press charges “because she believes her relationship with Weiner was consensual.” The paper said that she and her father agreed to be interviewed “out of concern that Weiner may be sexting with other underage girls.”

Mr. Weiner was forced to resign from Congress, where he represented parts of Queens and Brooklyn, in June 2011, not long after an explicit picture, sent from his Twitter account, became public.  Mr. Weiner initially claimed that his account had been hacked but eventually admitted that he had lied and that he had sent the image and had inappropriate online exchanges with at least six other women.

As the title of this post is meant to suggest, my mind reels with all the possible "relevant conduct" that could be argued for guidelines calculation purposes as well as with all the ways to characterize Weiner's "history and characteristics" for purposes of the broader 3553(a) sentencing analysis. Until I see some more details about the offense conduct to which Weiner is pleading guilty, I am disinclined to make any prediction or even a guess about what sentence I would expect Weiner will get from a federal district judge. But I can already safely predict this will be a very interesting sentencing to watch and a very challenging one for the judge.

But perhaps readers would not find it very challenging and would like to share their views in the comments. Try to keep it clear and repsectful and perhaps even funny on a Friday.

May 19, 2017 in Booker in district courts, Celebrity sentencings, Federal Sentencing Guidelines | Permalink | Comments (26)

US Commission on Civil Rights conducting big hearing on collateral consequences

As detailed in this official meeting notice, the United States Commission on Civil Rights is having a big public "briefing" focused on "Collateral Consequences: The Crossroads of Punishment, Redemption, and the Effects on Communities." The event in DC begins at 9:30 am and will be live-streamed at this link. Here is the scheduled run-down of the panels and speakers:

Panel One: Overview of Collateral Consequences of Incarceration:

National experts provide an overview of the long-lasting effects of incarceration after a prison sentence has ended. Panelists will discuss how these continuing barriers impact recidivism and particular communities. Speakers’ Remarks:

  • Margaret Love, Executive Director, Collateral Consequences Resource Center
  • Vikrant Reddy, Senior Research Fellow, Charles Koch Institute
  • Traci Burch, Associate Professor of Political Science, Northwestern University
  • John Malcolm, Vice President of the Institute for Constitutional Government, Heritage Foundation
  • Naomi Goldberg, Policy and Research Director, Movement Advancement Project

Panel Two: Access to Civil Participation after Incarceration:

National experts and professors discuss the barriers to civil participation following incarceration, specifically focusing on the right to vote and jury participation. Speakers’ Remarks:

  • Marc Mauer, Executive Director, The Sentencing Project
  • Hans von Spakovsky, Senior Legal Fellow, Meese Center for Legal and Judicial Studies, Heritage Foundation
  • James Binnall, Assistant Professor of Law, Criminology, and Criminal Justice, California State University at Long Beach
  • Anna Roberts, Assistant Professor, Seattle University School of Law and Faculty Fellow, Fred T. Korematsu Center for Law and Equality

Panel Three: Access to Self-Sufficiency and Meeting Basic Needs:

National experts discuss the barriers to self-sufficiency and meeting basic needs after incarceration. Panelists will focus on employment, housing and access to public benefits. Speakers’ Remarks:

  • Maurice Emsellem, Program Director, National Employment Law Project
  • Kate Walz, Director of Housing Justice, Sargent Shriver National Center on Poverty Law
  • Amy Hirsch, Managing Attorney, North Philadelphia Law Center; Welfare, Aging and Disabilities Units, Community Legal Services
  • Marc Levin, Director, Center for Effective Justice; Texas Public Policy Foundation; Right on Crime

May 19, 2017 in Collateral consequences, Criminal Sentences Alternatives, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

"An Empirical Assessment of Georgia's Beyond a Reasonable Doubt Standard to Determine Intellectual Disability in Capital Cases"

The title of this post is the title of this new paper authored by Lauren Sudeall Lucas now available via SSRN.  Here is the abstract:

In Atkins v. Virginia, the Supreme Court held that execution of people with intellectual disabilities violates the Eighth Amendment’s prohibition on cruel and unusual punishment. In doing so, the Court explicitly left to the states the question of which procedures would be used to identify such defendants as exempt from the death penalty.  More than a decade before Atkins, Georgia was the first state to bar execution of people with intellectual disability.  Yet, of the states that continue to impose the death penalty as a punishment for capital murder, Georgia is the only state that requires capital defendants to prove their intellectual disability beyond a reasonable doubt at the guilt phase of the trial to be legally exempted from execution.

This article is the first to provide an empirical assessment of Georgia’s “guilty but mentally retarded” (GBMR) statute, including its beyond a reasonable doubt standard of proof.  In doing so, it fills a critical gap not only in the scholarly literature on the subject, but also for those who continue to litigate the issue.  Its analysis reveals that no defendant facing the death penalty in Georgia has ever received a GBMR verdict for malice murder from a jury in the statute’s nearly thirty-year existence.  Prior to Atkins, only one capital defendant had ever received a GBMR jury verdict at trial, in a felony-murder case, by meeting this extremely high standard of proof, thus exempting herself from the death penalty.

The absence of any successful GBMR jury verdict in a malice murder case and the absence of any successful GBMR verdict in any capital case post-Atkins, in combination with Georgia’s lone status in imposing such a procedure, all contribute to the argument that the beyond a reasonable doubt standard, and the jury’s decision regarding intellectual disability in the guilt phase create, in the words of the Court, an “unacceptable risk” that capital defendants with intellectual disability will be executed in violation of the Eighth Amendment.

May 19, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (0)

May 18, 2017

Highlighting sentencing reform's momentum in the states despite prosecutorial change of course by US Attorney General

The New York Times has this extended new article detailing recent state sentencing reform realities that stand in contrast to the decision last week by Attorney General Sessions to promulgate tougher charging and sentencing guidelines.  The article is headlined "States Trim Penalties and Prison Rolls, Even as Sessions Gets Tough," and here are excerpts:

Louisiana has the nation’s highest incarceration rate.  But this week, Gov. John Bel Edwards struck a deal to reduce sentences and the prison population, saving millions annually. If lawmakers approve the changes, Louisiana will be following more than 30 states, including Georgia, Texas and South Carolina, that have already limited sentences, expanded alternatives to incarceration such as drug treatment, or otherwise reduced the reach and cost of the criminal justice system.  Many of those states say they have saved money while crime rates have stayed low.

In Washington, though, the nation’s top law enforcement officer, Attorney General Jeff Sessions, has charted the opposite course.  He announced last week that federal prosecutors should aim to put more people in prison for longer periods, adopting the sort of mass-incarceration strategy that helped flood prisons during the war on drugs in the 1980s and 1990s.  His move — which he said would promote consistency and respect for the law — alarmed critics who feared that the Trump administration was embracing failed, even racist, policies.

Even more, Mr. Sessions’s approach conflicted with one of the few major points of bipartisan national agreement over the past decade, that criminal justice could be more effective by becoming less punitive to low-level offenders, treating root causes of crime like drug addiction, and reserving more resources to go after serious, violent criminals.

But if Mr. Sessions’s appointment has dampened the hopes of those wishing for congressional action to reduce incarceration, advocates say it has had little effect on state efforts. “There was a lot of speculation that with the rhetoric from the presidential campaign, there would be a drop in momentum, but we haven’t seen that,” said Marc A. Levin, the policy director for Right on Crime, a group at the fore of conservative efforts to reduce incarceration rates.  “There have been so many successes in the last several years, particularly in conservative states, that it continues to fuel other states to act,” Mr. Levin said.

The consensus began with a cold, objective judgment that taxpayers were not getting a good return on investment for money spent on prisons.  Bloated corrections budgets took money that could be spent on schools, roads or tax breaks, while many of those who went through the prison system went on to offend again.  Among Republicans and Democrats alike, concern also grew that too many nonviolent criminals who were no threat to society were being imprisoned and given little chance to reform and re-enter mainstream society....

It has not hurt that early adopters included tough-on-crime red states like Texas, which began passing major criminal justice revisions in 2003.  “It was a Nixon-goes-to-China thing, and was really helpful in letting other states know, ‘The water is warm; you can do this,’” Mr. Ring said.  In contrast, he added, Mr. Sessions’s directive flies in the face of state-level successes. “We’re going to double down on an approach everybody else has walked away from,” is how Mr. Ring characterized it.

So far this year, Michigan and Georgia, which previously rewrote their criminal justice laws, have already approved a new round of changes.  In Oklahoma, where Mr. Trump handily carried every county in November, another vote was also popular: Residents approved by a 16 percentage point margin a ballot proposal calling on legislators to curb prison rolls and downgrade numerous drug and property crimes to misdemeanors from felonies.

“Basically, in Oklahoma we’re just warehousing people in prison, and we’re not trying to rehabilitate anybody because of budget constraints,” said Bobby Cleveland, a Republican state representative who is chairman of the Public Safety Committee. Oklahoma has the nation’s No. 2 incarceration rate. The state is now considering how to heed the voters’ advice, including debating major criminal justice changes. The effort faces opposition from district attorneys who have slowed some pieces of legislation, but the proposals have the firm backing of Gov. Mary Fallin, a Republican. Supporters acknowledge that it may take a few tries to succeed. “Texas didn’t do it in one year, either,” Representative Cleveland said.

Louisiana is also moving toward change. On Tuesday, Governor Edwards, a Democrat who has made reducing the prison population a centerpiece of his administration, announced that he had reached an agreement with the state’s politically powerful district attorneys to revise criminal justice laws. The deal, which still faces a vote in the Legislature, would reduce penalties for minor drug possession, give judges more power to sentence people to probation instead of prison, limit how many theft crimes qualify as felonies, and reduce mandatory minimum sentences for a number of crimes.

Last year, it also seemed there was a fair chance that even Congress would get in on the action with a bipartisan bill to reduce mandatory minimum sentences for some drug crimes. The bill never got a vote on the floor, and some feared that the appointment of Mr. Sessions, who opposed the legislation as a senator, was a sign that President Trump would never support it. But in March, Mr. Trump’s son-in-law and senior adviser, Jared Kushner, met with pro-reform senators, including Charles E. Grassley, Republican of Iowa and chairman of the Judiciary Committee, signaling he considered the issue a priority....

While Mr. Sessions has warned of what he says is a coming surge in crime, advocates for reducing incarceration say they are frustrated by how their goals are often cast as adverse to public safety. “The states that have most significantly reduced their prison population have also seen the biggest drops in their crime and recidivism rates,” said Holly Harris, a former general counsel of the Kentucky Republican Party who is now executive director of the U.S. Justice Action Network. “Reform makes us safer,” Ms. Harris said. “There’s a misperception with prosecutors that somehow reform is anti-law enforcement, and that couldn’t be further from the truth.”

May 18, 2017 in Drug Offense Sentencing, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Highlighting how the Sessions Memo may have particular impact for drug trafficking cases in certain districts

News2-2-Graph-SentencingWith thanks to commenter Daniel for the tip, I just saw this notable local article from New Mexico providing a notable local perspective on the potential impact of the new Sessions federal charging/sentencing memo.  The article is headlined "Two Steps Back: How Jeff Sessions’ memo on federal prosecutions could take New Mexico back to a harsher era," and here are excerpts:

A directive from newly appointed US Attorney General Jeff Sessions instructing prosecutors to seek the most severe charges available threatens to stunt recent progress toward less federal prison time for low-level drug offenders in New Mexico, defense lawyers and drug policy reform advocates tell SFR.

“Drug mule” cases make up many of the drug crimes prosecuted in federal court in New Mexico, federal public defender John Butcher says. Some low-level drug runners who get caught mid-shipment are apprehended in Albuquerque, the first overnight stop on Amtrak’s Southwest Chief train from Los Angeles to Chicago. Others are picked up throughout the federally designated “High Intensity Drug Trafficking Area,” which runs east from Farmington down to Santa Fe and into Albuquerque before blanketing most of the southern border from Roswell on. The vast majority of federal drug charges in the state are for trafficking. Possession and brokering drug deals comprise a smaller percentage of crimes.

Drug mule cases, most often involving nonviolent and low-level drug offenders, were among those singled out in a memo issued by former attorney general Eric Holder in August 2013. It encouraged prosecutors not to charge such people with crimes that could trigger stiffer mandatory minimum sentences, which prevent judges from sentencing defendants to prison for fewer than a predetermined number of years. For example, since 1986, federal law has mandated that a person convicted of holding five kilograms of cocaine with intent to distribute be sentenced to a minimum of 10 years in prison for a first offense.

Holder asked prosecutors to back off. If somebody was arrested with five kilograms of cocaine, but was not an organizer, did not have deep ties to criminal groups and wasn’t carrying a gun or another indicator of violent intent, prosecutors were asked not to charge that person with the quantity that would have triggered the 10 years. Data from the US Sentencing Commission suggests that some federal prosecutors in New Mexico may have heeded Holder’s directive. It shows that the percentage of sentenced federal drug offenders who received mandatory minimums immediately dropped from 42 percent in 2013 to 25 percent in 2014, and even fell to 20 percent in 2015, the most recent year for which information is available. That’s about half the figure from 2006, the first year the commission began tracking this data. The decrease came even as the number of people prosecuted for trafficking rose from an average of 586 between 2010 and 2012—before the Holder directive—and 646 between 2014 and 2016.

But Sessions has now directed prosecutors to reverse course. The new attorney general wants federal prosecutors to seek the most serious and readily provable charge against all defendants—regardless of circumstance. “This is going to go after the low-level minimum participants with minor records, because they’re the ones who were getting breaks [under Holder],” Butcher tells SFR. “Breaks” didn’t mean that low-level runners weren’t being charged or sentenced to prison after 2013, he says. But in some cases, they weren’t getting the book thrown at them. Butcher suggests the new policy will have an outsized effect in New Mexico, with its relatively higher number of trafficking cases involving nonviolent offenders....

Since 2013, Santa Fe’s Law Enforcement Assisted Diversion (LEAD) program, wherein police work with case managers and the local district attorney to enroll low-level offenders in treatment programs, has served as a national example for non-punitive approaches to drug use.  District Attorney Marco Serna doesn’t think there’s much overlap between those who would qualify for LEAD and those who could be charged with a federal drug crime, but he acknowledges that the city’s approach stands in contrast to Sessions’ hardline.  “For nonviolent crimes, we have our own state and local statutes, and luckily I get to influence how we handle it in the first district,” Serna says. “And we won’t be taking that approach.”

Prior recent related posts: 

UPDATE: I just saw this notable new New York Times article which drills even deeper into the impact of the Holder Memo by identifying a number of low-level federal drug offenders who seemingly benefited from more lenient charging practices.  The piece is headlined "5 Years, or 20? How Sessions’ Get-Tough Order Would Extend Prison Stays." and it is interesting to see the cases profiled in the article and even more interesting to consider whether the offenders in the article might have been able, even if charged with more serious offenses, been able to avoid the application of a mandatory minimum sentence through the statutory safety valve or through providing cooperation.

May 18, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

"Deterrence and the Optimal Use of Prison, Parole, and Probation"

The title of this post is the title of this new paper by A. Mitchell Polinsky and Paul Riskind now available via SSRN. Here is the abstract:

In this article we derive the sentence — choosing among the sanctions of prison, parole, and probation — that achieves a target level of deterrence at least cost.  Potential offenders discount the future disutility of sanctions and the state discounts the future costs of sanctions.  Prison has higher disutility and higher cost per unit time than parole and probation, but the cost of prison per unit of disutility can be lower or higher than the cost of parole and probation per unit of disutility.  The optimal order of sanctions depends on the relative discount rates of potential offenders and the state, and the optimal duration of sanctions depends on the relative costs per unit of disutility among the sanctions and on the target level of deterrence.

We focus on the case in which potential offenders discount the disutility of sanctions at a higher rate than the state discounts the costs of sanctions.  In this case, if prison is more cost-effective than parole and probation — that is, has a lower cost per unit of disutility — prison should be used exclusively.  If prison is less cost-effective than parole and probation, probation should be used if the deterrence target is low enough, and prison followed by parole should be used if the deterrence target is relatively high.  Notably, it may be optimal to employ a prison term even if prison is less cost-effective than parole and probation and even if prison is not needed to achieve the target level of deterrence, because of what we refer to as the front-loading advantage of imprisonment.

May 18, 2017 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment | Permalink | Comments (4)

Ninth Circuit dodges federal marijuana offender's claim his imprisonment contravenes appropriations rider

As everyone involved in or following marijuana reform knows, Congress in recent years has included in its omnibus appropriations bills a rider that prevents the US Department of Justice (DOJ) from using any funds to prevent states "from implementing their own State laws that authorize the use, distribution, possession, or cultivation of medical marijuana."  Yesterday, a Ninth Circuit panel considered in Davies v. Benov, No. 15-17256 (9th Cir. May 17, 2017) (available here), a notable contention concerning this rider from a federal prisoner.  Here are the basics from the opinion:

Davies owned and operated medical marijuana dispensaries in Stockton and Sacramento, California, which he contends complied with state and local medical marijuana laws. Davies, however, was charged with violating federal drug laws ... [and] entered into a plea agreement, agreeing to a five-year prison term and pleading guilty to the ten counts filed against him....

Davies filed a habeas corpus petition under 28 U.S.C. § 2241 in the Eastern District of California, contending that the BOP’s use of federal funds to incarcerate individuals, such as himself, who engaged in conduct permitted by state medical marijuana laws violates the appropriations rider.

I recall talking to some lawyers back when Congress first enacted the medical marijuana appropriations rider that, if the text were interpreted very broadly, it could arguably preclude the federal Bureau of Prisons (which is part of DOJ) from spending any of its budget on those incarcerated for state-compliant medical marijuana activities. So I am not shocked that this argument made it to the Ninth Circuit. But, as this concluding passage from Davies highlights, this argument still has not yet been addressed on the merits:

The collateral-attack waiver provision in Davies’s plea agreement bars him from this particular challenge to the BOP’s use of federal funds to incarcerate him for conduct he contends complied with California’s medical marijuana laws. Because of this waiver, we need not reach and save for another day the issue of whether the expenditure of federal funds to incarcerate individuals who fully complied with state medical marijuana laws violates the appropriations rider. Cf. McIntosh, 833 F.3d at 1177–78 (holding that the appropriations rider prohibits the Department of Justice from using appropriated funds to prosecute individuals for engaging in conduct permitted by state medical marijuana laws). “We will enforce a valid waiver even if the claims that could have been made [through a collateral attack] absent that waiver appear meritorious, because the whole point of a waiver is the relinquishment of claims regardless of their merit.” United States v. Medina-Carrasco, 815 F.3d 457, 462–63 (9th Cir. 2015) (internal quotation marks, alterations, and emphasis omitted).

I would be shocked to see the Ninth Circuit or any other court ultimately interpret the DOJ appropriations rider to require the release of any federal prisoners, but the argument has enough technical textual legitimacy to surely justify its pursuit by persons federally imprisoned for state-legal medical marijuana activity. And, for various updates on state activities, I continue to try to keep up with major legal developments and other notable stories at Marijuana Law, Policy and Reform as evidenced by some of these recent posts:

May 18, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

May 17, 2017

Terrific effort to sort out "How Many Drug Offenders Benefited From the Holder Memo That Sessions Rescinded?"

In this post earlier this week, I talked through the challenge of figuring out the import and impact of the new Sessions Memo on federal charging/sentencing by stressing  uncertainty concerning the impact of various charging memos released by former Attorney General Eric Holder.   Jacob Sullum is carrying forward this effort quite effectively this morning in this terrific new Reason posting asking "How Many Drug Offenders Benefited From the Holder Memo That Sessions Rescinded?".   Here are highlights:

For critics of the war on drugs and supporters of sentencing reform, the policy shift that Attorney General Jeff Sessions announced last Friday is definitely a change for the worse. But it's not clear exactly how bad the consequences will be, partly because the impact of the policy he reversed, which was aimed at shielding low-level, nonviolent drug offenders from mandatory minimum sentences, is hard to pin down.

Sessions rescinded a 2013 memo in which Attorney General Eric Holder encouraged federal prosecutors to refrain from specifying the amount of drugs in cases involving nonviolent defendants without leadership roles, significant criminal histories, or significant ties to large-scale drug trafficking organizations. Since mandatory minimums are tied to drug weight, omitting that detail avoids triggering them.

Numbers that the Justice Department cited last year suggest Holder's directive, which was the heart of his Smart on Crime Initiative, had a substantial effect on the percentage of federal drug offenders facing mandatory minimums. According to data from the U.S. Sentencing Commission (USSC), the share of federal drug offenders subject to mandatory minimums has fallen steadily since Holder's memo, from 62 percent in fiscal year 2013 to less than 45 percent in fiscal year 2016. If the percentage had remained the same, more than 10,000 additional drug offenders would have fallen into that category during this period.

"The promise of Smart on Crime is showing impressive results," Deputy Attorney General Sally Q. Yates said last year, citing the USSC numbers through fiscal year 2015. "Federal prosecutors are consistently using their discretion to focus our federal resources on the most serious cases and to ensure that we reserve harsh mandatory minimum sentence for the most dangerous offenders."

Counterintuitively, however, the defendants whom the USSC describes as "drug offenders receiving mandatory minimums" include drug offenders who did not actually receive mandatory minimums. Many of them were convicted under provisions that call for mandatory minimums yet escaped those penalties because they offered "substantial assistance" or qualified for the statutory "safety valve."

Paul Hofer, a policy analyst at Federal Public and Community Defenders, took those other forms of relief into account in a 2013 estimate of the Holder memo's possible impact.... Hofer's analysis suggests that the vast majority of drug offenders who seem to have benefited from the 2013 memo—thousands each year—did not actually receive shorter sentences as a result of the policy change.

Then again, the benefits of Holder's memo may extend beyond the federal defendants who avoided mandatory minimums. By encouraging prosecutors to focus their efforts on the most serious drug offenders, Holder may have indirectly reduced punishment by allowing some people to avoid federal charges altogether. That instruction may help explain why the total number of federal drug cases fell from 25,000 in fiscal year 2013 to 21,387 in fiscal year 2016, a 14 percent drop.

As Molly Gill, director of federal legislative affairs at Families Against Mandatory Minimums, points out, there is some evidence that federal prosecutors did try to focus on the most serious cases: During the same period, the share of defendants benefiting from the safety valve (which excludes high-level and violent offenders) fell from 24 percent to 13 percent. "With the directive not to slam low-level drug defendants," says University of California at Irvine criminologist Mona Lynch, "there was likely some shift toward bringing more serious cases and simply passing on smaller, street-dealing type of cases."

Sessions is now telling federal prosecutors to pursue the most serious provable charges against drug offenders (and other federal defendants) unless they believe an exception to that policy is warranted, in which case they have to seek permission from their supervisors and justify the decision in writing. Although Sessions argues that the new default rule will produce more uniform results, Lynch thinks it could have the opposite effect.

"The big question is whether he has the power to roll back time and change the prevailing legal culture that has tempered the 'drug war' mentality of the 1990s in many federal jurisdictions," says Lynch, who studied the behavior of federal prosecutors for her 2016 book Hard Bargains: The Coercive Power of Drug Laws in Federal Court. "Even under a more stringent set of charging policies…U.S. attorneys have considerable discretion as to what cases to bring….This policy may only increase the divide between jurisdictions that collectively eschew aggressive federal drug prosecutions and those that dive back into the harsh practices of an older era. This would result in even more geographic disparity in federal justice outcomes, a longstanding concern of Congress and of the U.S. Sentencing Commission."

Prior recent related posts: 

May 17, 2017 in Drug Offense Sentencing, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Progressive defense attorney wins key primary and now seems poised to become Philadelphia District Attorney

As reported in this local article, a notable and unlikely figure won a Democratic primary and seems poised now to become the most remarkable of modern big city prosecutors.  Here are the basics:

Larry Krasner was the unlikeliest of candidates for district attorney in Philadelphia. That turned out to be just the ticket for victory in the unlikeliest of Democratic primary elections Tuesday.

Progressive voters demanded reform for an office currently held by a man under federal indictment. And the local race was nationalized by a growing sense of resistance among many Democrats in the city to President Trump’s every move.

Krasner, 56, easily defeated six other contenders Tuesday, in a campaign that went from low-key to high-profile last month with a $1.45 million investment from billionaire George Soros in a pro-Krasner independent political action committee. With nearly 98 percent of the vote tallied Tuesday night, Krasner held nearly an 18-point lead on his closest Democratic rival. Krasner will face in the Nov. 7 general election Beth Grossman, the lone Republican in her party’s primary Tuesday.

Krasner, a defense attorney for three decades best known for taking on civil rights cases for Black Lives Matter and Occupy Philadelphia members, AIDS activists and protesters arrested at political conventions, has never served a day in his career as a prosecutor. That became his pitch -- that he was more likely to reform the District Attorney’s Office because he had no ties to the institution, unlike most of the other Democrats in the race.

That message appealed to several hundred people who filled the John C. Anderson Apartments community room and an outdoor courtyard in Center City on Tuesday night for Krasner’s victory party. It got a little rowdy as the results rolled in. Chants of "No good cops in a racist system" and against the Fraternal Order of Police were quickly shut down by Krasner campaign staffers.

Krasner, who lives in West Mount Airy, told the crowd they shared a vision of “a criminal justice system that makes things better, that is just, that is based on preventing crime and is based on building up society rather than tearing it apart." And he reached out to the office he hopes to lead. "To the good people of the District Attorney's Office, I want you to know, you could have made more doing something else, but you became district attorneys because you wanted justice,” he said. “You know what I want? I want what you want. I want justice."

Krasner had a remarkable impact on the primary, pulling the field to the left, leading that movement with a pledge to stop seeking death-penalty sentences if elected. He joked Tuesday night that his position on capital punishment had been described as “political suicide.” As he ended his speech, the crowd launched into a booming chant of "This is what democracy looks like."

Krasner’s primary victory is certain to set off rumblings of uncertainty in the District Attorney’s Office. He has described it as “a place with a mad zeal for the highest charge, for the highest level of conviction, a culture that can find no flaw in police misconduct, that is drunk on the death penalty.” Krasner has also sued law enforcement agencies or the government more than 75 times.

His rise prompted a group of two dozen former District Attorney’s Office employees to endorse former city and federal prosecutor Joe Khan on Friday. Khan finished second in the race, followed by former city Managing Director Rich Negrin, former First Assistant District Attorney Tariq El-Shabazz, former city and state prosecutor Michael Untermeyer, former assistant district attorney Jack O’Neill, and former Municipal Court Judge Teresa Carr Deni.

Krasner, the son of a crime-fiction author and an evangelical Christian minister, grew up in St. Louis and graduated from Stanford Law School, starting his career as a federal public defender before launching his own firm in 1993. He is married to Common Pleas Court Judge Lisa M. Rau.

Krasner’s victory was fueled by biographical television commercials paid for with Soros’ cash. That helped him far outpace Untermeyer, who invested $1.3 million of his own money in the race, and Khan, who outperformed all the other candidates in fund-raising from individual donors.

May 17, 2017 in Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (4)

May 16, 2017

In last-minute appeal, condemned Georgia inmate urges extension of bar on juve capital punishment to those under 21

As reported here, "a Georgia inmate scheduled to be executed Tuesday has filed an appeal with the U.S. Supreme Court arguing that it is wrong to sentence an offender less than 21 years old to death."  Here is more on the effort to halt an execution scheduled to take place a quarter century after the crime:

J.W. "Boy" Ledford Jr., now 45, was 20 years old when he was sentenced to death after being convicted of killing a doctor who had given him a ride in Georgia in 1992. Ledford is scheduled to be the first Georgia inmate executed in that state this year. The Georgia Supreme Court earlier Tuesday declined to halt the execution.

"Intelligence testing shows Ledford to have, at best, borderline intellectual functioning," attorneys for Ledfrod wrote in their petition to the U.S. Supreme Court. It argues that the execution violates would violate Eight Amendment protections against cruel and unusual punishment and 14th Amendment guarantees of due process.

The petition argues that other rulings barring the death penalty for juvenile offenders apply to those who commit crimes from the ages of 18 to 21 — "a period in life during which, new scientific investigation forcefully shows, individuals suffer from the same impairments in judgment and self-control that prompted this Court to ban the application of capital punishment to juvenile offenders."

Ledford killed Dr. Harry Johnston after the physician gave him a ride, leaving the victim nearly decapitated. He then went to the doctor's home and tied up and robbed his wife. She has since died.

Lawyers for the state said the argument that Ledford was too young to be sentenced to death had not been raised before. The state said arguments of "evolving standards of decency" about the age of sentenced offenders are vague, and laws about juveniles don't apply to Ledford's case.

Ledford had previously argued that a firing squad would be a more humane way to die than the lethal injection planned by the state. A federal appeals court on Monday denied a request for a stay of execution.

UPDATE: As reported here, "Georgia carried out its first execution of the year early on Wednesday, putting to death a man convicted of killing a 73-year-old neighbor in 1992. J.W. Ledford Jr., 45, was pronounced dead at 1:17 a.m. at the state prison in Jackson, more than six hours after his initial execution time. The delay was waiting for a ruling from the U.S. Supreme Court, which denied his request for a stay."

May 16, 2017 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (10)

New lifetime GPS tracking for old sex offenders raising concerns in Missouri

This lengthy local article, headlined "Hundreds of Missouri sex offenders now required to wear GPS monitoring devices for life," reports on a new sex offender monitoring law that is causing consternation. Here are excerpts:

A sex offender from St. Charles County thought he had moved on with his life after successfully completing five years of probation for sending webcam photographs of his genitals to an undercover police officer posing as a 13-year-old girl.  Now he’s among hundreds of people in Missouri who are learning they must attach GPS monitoring systems to their ankles for life, even though such a requirement wasn’t part of their sentencing agreement.

The devices send out alerts if an offender lingers near a school or a park.  Cut the wide black strap and the waterproof device will tell on them. It beeps to prompt a verbal command from state officials, say to make a payment or report to probation officers immediately.

The retroactive requirements are part of a revised state criminal code that went into effect Jan. 1.  Offenders either found guilty or who pleaded guilty to 13 various sex crimes in question based on an act committed on or after Aug. 28, 2006, are subject to the added security measures.  Previously, the monitoring technology was used for a more limited class of high-risk offenders.

The St. Charles man is among several sex offenders who are suing and challenging the state. In the lawsuit, in which he is named only as D.G., the 40-year-old argues that the law didn’t exist when he pleaded guilty.  He claims he’s no longer “legally subject” to the jurisdiction of state prison authorities. He argues that he shouldn’t be required to pay monthly supervision fees for decades, nor have travel or residency restricted for life.

“I don’t think a lawyer can make a straight-faced argument that it’s constitutional,” said Clayton-based attorney Matt Fry, who is suing the state on behalf of D.G. and has many other plaintiffs in the wings.

A March 29 “Dear Sir/Madam” letter from chief state supervisor Julie Kempker lays out the law, including threat of a class D felony if conditions are violated.  “We understand that this change may be unexpected,” Kempker said in the letter.  “Rather than being detracted by the lifetime supervision requirements, you are encouraged to remain focused on your daily supervision responsibilities and to do those things that improve your life and positively impact your family and the community in which you live.”

Many sex offenders panicked and started calling lawyers. Some are confused: for instance, those no longer on supervision who moved away from Missouri.

A 41-year-old sex offender from south St. Louis County said he sees the changes as unlawful, too costly and ineffective.  “Lifetime. For the rest of your life. I can’t even comprehend it,” said the man, who didn’t want to be identified to avoid bringing more unwanted attention to himself.

According to court records, he pleaded guilty in 2012 to first-degree child molestation for touching the genitalia of a friend’s 7-year-old daughter.  The first-time offender was sentenced to 10 years in prison. He spent four months behind bars before he was let out to undergo treatment in the community. So long as he did well, he’d be done with state supervision after five years on probation, not including registering as a sex offender for life.  But during a monthly visit to his probation officer in April, he found out about being subject to the added layer of oversight.

He said he argued that lifetime GPS monitoring wasn’t part of his sentencing agreement. Still, the device was attached April 26.  He’s still getting used to wearing it. He said the device puts his job stocking snack machines in jeopardy and that he’s too embarrassed to wear shorts in public . He said it seemed like extra punishment added after the fact.

Kim Kilgore, the St. Louis County prosecutor who handled his case, disagreed. “It’s a collateral consequence of his plea,” Kilgore said. “The legislature has spoken that, in the interest to the public, he should be required to wear this. Mind you, his victim was 7 years old.”

She said sex offenses are a public health issue and should be handled accordingly, similar to people with a contagious disease who are quarantined. “Think of the burden that my victim suffers every day of her life for something he chose to do,” she said.

Officials have tried to notify at least 432 sex offenders like the man from south St. Louis County about the new monitoring requirements, according to the Department of Corrections, which oversees the division of probation and parole.  At the end of April, 364 of them had been placed on GPS monitoring.  They were already on state supervision. About 800 prison inmates are on deck. So are 500 people who already completed their sentences and are considered free.

May 16, 2017 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Technocorrections | Permalink | Comments (24)

Is it unconstitutional for a state to allow judges to increase sentences because a felony was committed by someone illegally present in the US who had been previously deported?

The question in the title of this post could be an issue before state (and federal?) judges in Tennessee shortly, because a new state sentencing provision to this effect is on the desk of the Governor of the Volunteer State.   This local article, headlined "Bill gives TN judges more power in sentencing, experts say law is unconstitutional," explains:

State lawmakers are keeping an eye on the clock as time ticks down for Gov. Bill Haslam to act on a bill granting state judges new sentencing authority. The bill allows judges to add more time to a felony sentence if a defendant is in the country illegally. Right now the state of Arizona is involved in a legal battle over a similar issue.

Tennessee lawmakers say this bill would be a hard deterrent against crime. Immigration advocates say it's a burden on local governments that will drive a wedge between the community and the legal system. Haslam has three options when it comes to the sentencing enhancement bill before his desk. He can sign it, veto the bill or allow it to pass into law without his signature.

Lincoln Memorial University Duncan School of Law professor Stewart Harris believes whether it's signed or not, this bill might not be around for long. "My initial reaction is that it's probably unconstitutional,” said Harris.

According to Harris, the U.S. Constitution governs America's immigration laws, not states. That's one reason states don't typically pass immigration laws. "Should California have one set of rules and Massachusetts another? What about all the landlocked states, should they have their own rules as well? That’s why Congress has authority over immigration,” explained Harris.

State Sen. Becky Duncan Massey of Knoxville believes this bill isn't an immigration issue. "The courts are going to decide if something is constitutional or not if it's challenged. I don't believe this really has to do with immigration, it has to do with crime,” said Massey.

Massey says residence is already a factor when considering a person's bond. She believes judges should have all the information about a defendant available to them before sentencing. "They’re already going to jail, they have committed a crime, they've been convicted of a crime and this is just a factor along with another factor determining how long the sentence is,” she said....

This bill passed the House and Senate on May 9. The governor has 10 working days to take action or allow it to pass without his signature.

Though I am not an expert on immigration law or preemption, I am inclined to believe this kind of law is constitutional. I can see a range of reasonable constitutional and policy arguments against this proposed amendment of Tennessee's sentencing laws, but the fact that the provision appear to apply to those in the country illegally AFTER a previous deportation would seem to foster an argument that the law is more like punishing someone based on a certain type of prior criminal history rather than just based on alienage.  But nobody should hold me to that too-quick and relatively uniformed assessment, and everybody should use the comments to help be get better informed on the question in the title of this post.

May 16, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (10)

Three new CCRC posts highlighting how collateral consequences have become a focal point for modern criminal justice reform

Regular readers should recall me highlighting all the great work being done regularly over at the Collateral Consequences Resource Center, and three recent postings at CCRC struck me as worth a special mention because they each in distinct ways showcase the heightened attention and concern for collateral consequences in modern criminal justice reform conversations.  (At the risk of being cheeky, one might say collateral consequences are no longer being treated as collateral by serious advocates for criminal justice reform.  

Here are these three posts that caught my eye as highlighting distinct and distinctly important institutional players paying close attention to collateral consequences:

May 16, 2017 in Collateral consequences, Criminal Sentences Alternatives, Who Sentences? | Permalink | Comments (1)

"The Problem with Inference for Juvenile Defendants"

The title of this post is the title of this notable new article by Jenny Carroll recently posted to SSRN.  Here is the abstract:

Much of criminal law relies on proof by inference.  In criminal law, fact finders untangle not only what happened, but why it happened.  It is answering the “why” question that places an act and its result on the legal spectrum of liability. To reach that answer, the fact finder must engage in an interpretive act, considering not only what can be seen or heard, but the significance of that testimony or physical evidence in real world contexts — the world in which they occurred but also the fact finder’s own world.

Recent developments in neuroscience suggest that in the context of juvenile defendants, this moment of interpretation is fraught with particular risks. The emergence of fMRI technology has provided significant insights into adolescent brain development and its effect on adolescent thought processes.  As a result, scientists (and courts) recognize that adolescent actors are more likely to engage in risky behavior, fail to properly comprehend long term consequences and over value reward. In short, science has proven what most long suspected: kids think and react differently than do adults.

Although criminal law has long accounted for this difference procedurally — most evidently in the creation of an independent juvenile justice system – there has been little exploration of its significance in the realm of substantive criminal law.  This Article argues that what is known of adolescent brain development suggests that adult fact finders are poorly positioned to accurately assess a juvenile defendant’s state of mind, because adults lack the perspective of those whose actions and words they seek to interpret — juvenile defendants.  Rather than asking fact finders to perform the impossible task of placing themselves in the adolescent’s mind, substantive criminal law should instead acknowledge the difference in perspective and permit evidentiary presentation and jury instructions akin to defenses that rely on the defendant’s actual, as opposed to imagined, perspective.

May 16, 2017 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Brennan Center releases "A Federal Agenda to Reduce Mass Incarceration"

Justice agendaYesterday the Brennan Center released this notable new report which feels like it was first conceived back when everyone thought Hillary Clinton was poised to be President. Nevertheless, the report, headlined "A Federal Agenda to Reduce Mass Incarceration" speaks to current political realities in its executive summary with this paragraph:

Even with broad public support, addressing the problems in our criminal justice system will not be easy. For the last eight years, the White House and Justice Department supported this important work. But Attorney General Jeff Sessions appears opposed to efforts to reduce unnecessarily harsh charging and sentencing. While President Donald Trump’s own views remain unclear, key advisers such as Vice President Mike Pence, senior adviser Jared Kushner, and Gov. Chris Christie all support efforts to reduce imprisonment.

Here are some other parts of the report's executive summary:

This report sets forth an affirmative agenda to end mass incarceration and reform our criminal justice system. Bipartisan momentum has been growing for years. We must keep it going. The United States has less than five percent of the world’s population, but nearly one quarter of its prisoners. Mass incarceration contributes significantly to the American poverty rate. Conservatives, progressives, and law enforcement leaders now agree that the country must reduce its prison population, and that it can do so without jeopardizing public safety. In the last decade, 27 states have led the way, cutting crime and imprisonment together.

Of course, because 87 percent of prisoners are housed in state facilities, changes to state and local law are necessary. But history proves that decisions made in Washington affect the whole criminal justice system, for better or worse. Federal funding drives state policy, and helped create our current crisis of mass incarceration. And the federal government sets the national tone, which is critical to increasing public support and national momentum for change. Without a strong national movement, the bold reforms needed at the state and local level cannot emerge.

In a divisive political environment, it is tempting to assume that progress toward federal reform is impossible. But even today, the need to confront problems in the way we arrest, prosecute, and incarcerate remains a rare point of trans-partisan agreement. Republican and Democratic Congressional leaders alike acknowledge that unnecessarily long federal prison sentences continue to impede rehabilitation, driving recidivism and economic inequality. And according to a new poll from the Charles Koch Institute, 81 percent of Trump voters believe criminal justice reform is a “very important” or “somewhat important” issue. More than half know someone who is in or has been to prison....

To help bridge that divide, this report offers solutions that would keep crime rates low and show support for law enforcement, while reducing mass incarceration. The strongest of these policies require congressional action. Others could be implemented by a sympathetic administration. Taken together, these policies form the core of a national agenda for federal leaders to make our country safer and fairer. They also serve as models for state and local action.

Legislation

End the Federal Subsidization of Mass Incarceration: Federal grants help shape criminal justice policy at the state and local levels. For decades, these grants have subsidized the growth of incarceration. For example, the 1994 Crime Bill offered states $9 billion in funding to build more prisons. Today, $8.4 billion in federal criminal justice grants flow from Washington annually, largely on autopilot, encouraging more arrests, prosecution, and incarceration. To bring accountability to this flow, Congress can pass a “Reverse Mass Incarceration Act” that would dedicate $20 billion over 10 years to states that reduce both crime and incarceration. This would spur state and local action across the country.

End Federal Incarceration for Lower-Level Crimes: Our criminal justice system relies heavily on prison, using it as the default punishment for most crimes. But research has shown that unnecessary incarceration is costly and ineffective at preventing recidivism and promoting rehabilitation.  Early estimates show that approximately 49 percent of the federal prison population is likely incarcerated without an adequate public safety reason. Congress can pass legislation to eliminate prison terms for lower-level offenses and shorten prison terms for other crimes.  In doing so, it can safely, significantly cut the prison population, saving around $28 billion over 10 years, enough to fund a Reverse Mass Incarceration Act.

Institute a Police Corps Program to Modernize Law Enforcement: The country faces a national crisis in policing.  Some believe that overly-zealous enforcement has reached a breaking point.  Others believe police are not adequately funded or supported. All can agree that something needs to change.  To advance a twenty-first century police force, Congress can allocate $40 billion over five years to recruit new officers and train them in modern policing tactics focused on crime prevention, as well as techniques to reduce unnecessary arrests, uses of force, and incarceration.

Enact Sentencing Reform: While lawmakers should aspire to the bold changes to federal sentencing described above, Congress can start with a milder first step: reintroducing and passing the Sentencing Reform and Corrections Act of 2015.  This proposal would cautiously reduce prison sentences for some nonviolent crimes.  A bipartisan group of senators, led by Chuck Grassley (R-Iowa) and Dick Durbin (D-Ill.), have already committed to reintroducing the bill this session. The White House has expressed cautious support.

Executive Action

Redirect Federal Grants Away from Mass Incarceration: Since many of the harmful incentives in federal criminal justice grants are written into law, truly ending the federal subsidization of mass incarceration will take congressional action, as laid out above. But the Justice Department can take the first step, by changing performance measures for grants to reward states that use federal funds to reduce both crime and incarceration. Institute New Goals for Federal Prosecutors: The Justice Department should ensure that scarce federal criminal justice resources are focused on the most serious crimes, and evaluate U.S. Attorneys nationally based on their ability to decrease both crime and incarceration.

Commute Sentences to Retroactively Apply the Fair Sentencing Act: In 2010, Republicans and Democrats joined together to pass legislation to reduce the disparity between crack and powder cocaine crimes as the drugs are scientifically equivalent. But more than 4,000 federal prisoners remain incarcerated under outdated drug laws. Future presidents can bring justice to these prisoners by identifying clemency petitions meeting certain criteria, fast-tracking them for review, and granting clemency.

May 16, 2017 in Criminal justice in the Trump Administration, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

May 15, 2017

Reviewing some historical data on the federal prison population, total sentences imposed, and drug cases

Some of the copious commentary critical of the new Sessions Memo complains that he is "bringing back" the War on Drugs.  See, for example, Salon here, "Jeff Sessions is bringing back the drug war — and making it worse"; New York here, "Sessions Takes First Big Step Toward Bringing Back the War on Drugs."  I find this charge a bit curious because I do not think the drug war or its footprint on human lives ever really went away notwithstanding some recent efforts at the federal and state level to temper a bit its reach and impact. 

In an effort to try to see if the federal drug war at some point went away, and also driven by a desire to try to gauge the impact of federal charging policies before the Sessions Memo (as discussed here), I decided it might be useful to take a dive into US Sentencing Commission data over the past two decades to see what we could see.  The USSC has great yearly data assembled here going back to 1996, and basic federal prison population numbers are accessible here going back all the way to 1980.  Though my weak empirical skills and this imperfect blogging space will surely limit my ability to tell detailed data stories here effectively, I hope a few posts reviewing federal case processing and sentencing basics might be of some use and interest.  Here I will start with just the most basic of basics, historical data on the federal prison population, total sentences imposed, and drug cases:

Year        Federal Prison Population         Federal Sentences Imposed         Drug Sentences Imposed

1996                105,443                                        42,436                                    17,267

1998                122,316                                        50,754                                    20,368

2000                145,125                                        59,846                                    23,542

2002                163,436                                        64,366                                    25,920        

2004                179,895                                        70,068                                    24,532

2006                192,584                                        72,585                                    26,122

2008                201,668                                        76,478                                    25,500

2010                210,227                                        83,946                                    24,713

2012                218,687                                        84,173                                    25,712

2014                214,149                                        75,836                                    22,193

2016                192,170                                        67,742                                    19,945

May 15, 2017 in Data on sentencing, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (4)

Senator Rand Paul criticizes new Sessions Memo while promising to reintroduce Justice Safety Valve Act

In this new CNN commentary, headlined "Rand Paul: Sessions' sentencing plan would ruin lives," Senator Rand Paul provides a lengthy criticism of the new charging and sentencing memorandum released late last week by Attorney General Jeff Sessions (basics here).  Here are a few excerpts:

The attorney general on Friday made an unfortunate announcement that will impact the lives of millions of Americans: he issued new instructions for prosecutors to charge suspects with the most serious provable offenses, "those that carry the most substantial guidelines sentence, including mandatory minimum sentences."

Mandatory minimum sentences have unfairly and disproportionately incarcerated a generation of minorities. Eric Holder, the attorney general under President Obama, issued guidelines to U.S. Attorneys that they should refrain from seeking long sentences for nonviolent drug offenders.

I agreed with him then and still do. In fact, I'm the author of a bipartisan bill with Senator Leahy to change the law on this matter. Until we pass that bill, though, the discretion on enforcement -- and the lives of many young drug offenders -- lies with the current attorney general.

The attorney general's new guidelines, a reversal of a policy that was working, will accentuate the injustice in our criminal justice system. We should be treating our nation's drug epidemic for what it is -- a public health crisis, not an excuse to send people to prison and turn a mistake into a tragedy.

And make no mistake, the lives of many drug offenders are ruined the day they receive that long sentence the attorney general wants them to have....

I want to go the opposite way from the attorney general. That's why I've partnered with Senator Leahy and once again will be reintroducing the Justice Safety Valve Act. This isn't about legalizing drugs. It is about making the punishment more fitting and not ruining more lives.

The legislation is short and simple. It amends current law to grant judges authority to impose a sentence below a statutory mandatory minimum. In other words, we are not repealing mandatory minimums on the books -- we are merely allowing a judge to issue a sentence below a mandatory minimum if certain requirements are met.

We need this legislation because while there is an existing safety valve in current law, it is very limited. It has a strict five-part test, and only about 23% of all drug offenders qualified for the safety valve.... Each case should be judged on its own merits. Mandatory minimums prevent this from happening.

Mandatory minimum sentencing has done little to address the very real problem of drug abuse while also doing great damage by destroying so many lives, and most Americans now realize it.... Pew Research found that 67% of Americans want drug offenders to get treatment, not prison, and over 60% want an end to mandatory minimum sentences.

I urge the attorney general to reconsider his recent action. But even more importantly, I urge my colleagues to consider bipartisan legislation to fix this problem in the law where it should be handled. Congress can end this injustice, and I look forward to leading this fight for justice.

I am quite pleased to see Senator Paul astutely use the new Sessions Memo to justify reintroduction and a renewed campaign for his elegant Justice Safety Valve Act (JSVA).  For a host of reasons, most notably simplicity, the JSVA has long been my favorite piece of proposed legislation to deal with the problems created by mandatory minimum sentencing statutes.   Along with Harlan Protess back in 2013, as detailed here, I even took to the pages of the Wall Street Journal to urge then President Obama to throw his support behind the JSVA. 

Given that Prez Obama never expressed support for the JSVA and that this bill never even got a vote in the Senate Judiciary Committee when under control by Democrats, I am not optimistic that the Sessions Memo will be enough to seriously enhance the JSVA's passage prospects.  But I am encouraged to see Senator Paul continuing to be an active and vocal and effective pace-setter for reform of federal mandatory minimum sentencing provisions and practices.

May 15, 2017 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

One last chance to RSVP for "Behind the Bench: The Past, Present, and Future of Federal Sentencing"

FSRAs mentioned in this prior post, I will be attending this exciting afternoon event, titled "Behind the Bench: The Past, Present, and Future of Federal Sentencing," which is taking place this Wednesday (5/17) in Washington DC.  I considered the event quite timely when I posted about it last week, but the discussions generated by Attorney General Jeff Sessions new charging memo for federal prosecutors only serves to add an extra-timely dimension to the topics to be discussed.

As mentioned before, this event emerges from a thoughtful and provocative federal sentencing reform proposal put forward by current Acting US Sentencing Commission Chair Judge William Pryor (in part because that he graciously allowed this proposal to published in the Federal Sentencing Reporter).  Through my work with FSR, I played a small  role in getting this event off the ground, and here is the event's description from this webpage where one can register to attend:

Thirty years ago, the U.S. Sentencing Commission established the first-ever set of federal sentencing guidelines. Those initial Guidelines received a chilly reception as more than 200 federal judges found them unconstitutional.  Although the Supreme Court’s United States v. Booker decision in 2005 upheld the basic structure of the Guidelines, it recast them as “effectively advisory” to allow judges to continue applying the Guidelines consistent with new Sixth Amendment jurisprudence.

The Booker ruling stated Congress was free to devise a different system moving forward.  More than a dozen years and nearly a million federal sentences later, Congress has yet to act despite diverse criticisms of the Supreme Court’s advisory sentencing scheme.  This spotlights an enduring question: What is the proper relationship between the legislative and judicial branches in determining sentencing policy?

On May 17, please join the Charles Koch Institute, the Federal Sentencing Reporter, and the Law & Economics Center at George Mason University Antonin Scalia Law School as we explore this question and discuss how we can learn from the past to improve present and future federal sentencing policy.

KEYNOTE SPEAKER: Judge William H. Pryor

MODERATED DISCUSSION: Judge Ricardo H. Hinojosa and Judge Patti B. Saris

MODERATOR: Vikrant P. Reddy

Date: May 17

Time: 12:00 pm - 2:45 pm

I have been told that there is still a little bit of the limited space available, so folks interested in attending what ought to be a very interesting afternoon of federal sentencing discussion should still be sure to register via this webpage ASAP.

May 15, 2017 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

The challenge of taking stock of impact of Holder Memos to gauge possible impact of new Sessions Memo

As reported and reviewed a bit here, Attorney General Jeff Sessions issued on Friday this important new charging and sentencing memorandum to direct the work of federal prosecutors.  As I stated in my first post about what will be known as the Sessions Memo, I think this is a very big deal in terms of both the substantive instructions and enforcement tone being set for federal prosecutors by the new Attorney General.

But just how big a deal is the Sessions Momo?  This is a critical question that really cannot be answered for years, and all the nuanced particulars involved here cannot be unpacked in a single blog post.  But I still thought it might be useful this morning to explain what I see as the challenge of figuring out how big a deal the Sessions Memo really is.  And part of that story relates, as the title of this post suggests, to the uncertainty that must still attend any assessment of the impact and import of different charging memos released by former Attorney General Eric Holder.

To begin, I think nearly everyone who follows modern crime and punishment generally accepts what John Pfaff has been stressing for a decade concerning the impact and import of prosecutors on the severity of our criminal justice system and the size of our prison populations.  At the risk of oversimplification, Pfaff has effectively highlighted that how prosecutors do their work matters so much practically to who goes into prison and for how long.  Consequently, new DOJ instructions about how federal prosecutors must do their work would seem to be a very big deal.  (Of course, Pfaff also stresses that the federal criminal justice system prosecutes and imprisons less than 10% of all those subject to prosecution throughout the US, so there is necessarily some ceiling on how much new guidance toward federal prosecutors will impact the nation as a whole.)

Because prosecutors matter a lot, federal prosecutorial policies matter a lot.  But just how much?  Notably, former Attorney General Eric Holder issued at least three significant guidance memos to federal prosecutions: a first one in May 2010 allowing more charging/sentencing discretion, a second one in Aug 2013 urging less use of certain mandatory minimums, and a third one in Sept 2014 cautioning again using certain charges to induce a plea in drug cases.  Arguably, the May 2010 general charging/sentencing memo was the most consequential and far-reaching of AG Holder's instructions to federal prosecutors.  But if you look at the basic data assembled in this NBC News discussion of the Sessions Memo, federal prosecutorial charging practices did not appear to change all that much until after AG Holder in Aug 2013 really delivered aggressively and consistently the message that DOJ was now taking a much different approach to drug cases and others.

In some subsequent posts, I hope to unpack more fully the data on federal prosecutorial practices in the Obama years under AG Holder's guidance.  For now, my goal was to highlight that we did not see a massive sea change in federal prosecutions or sentences as soon as AG Holder first announced new guidance in May 2010.  (I also must note for those eager to praise Prez Obama and AG Holder for their reform efforts, note how Holder was not so quick off the dole.  AG Sessions set forth his policy by May of his first year in office; AG Holder took until May of his second year in charge.)  Importantly, it seems it was really only when AG Holder fully doubled down, in speeches and policy directives and other actions, on charting a much different prosecutorial path starting in August 2013 that the numbers in the federal system saw some real significant movement.  I hope to discuss that movement and its meaning in coming posts as well.

So, after a lot of words, my message here is stay tuned:  stay tuned to this blog for some coming number crunching about the Holder legacy and Sessions course change, and also stay tuned to see how AG Sessions and others inside DOJ and other parts of the Trump Administration follow up on this initial memo.  What follows may prove to be much more important than what we have seen so far.

Prior recent related posts: 

May 15, 2017 in Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

May 14, 2017

Notable review of Colorado's recent experiences and concerns with polygraph testing of sex offenders

The Denver Post has this interesting article about the monitoring and testing of sex offenders in the Centennial State.  The piece is headlined "Colorado’s pricey polygraph testing of sex offenders under fire as critics target accuracy, expense: Psychologist calls state’s $5 million polygraph program 'grossly excessive' as state legislature examines cost."  Here are some excerpts from the extended piece:

Colorado has spent more than $5 million to administer polygraphs on convicted sex offenders over the last seven years despite concerns that the tests are so unreliable they can’t be used as evidence during civil or criminal trials.

Polygraphs help officials decide which prisoners convicted of sex offenses are suited for release from prison by probing their sexual history, attitudes about their crimes and whether they are committing new offenses.  They also guide how offenders on parole or probation are supervised.  “The polygraph really gives useful information,” said Lenny Woodson, administrator for the Colorado Department of Corrections’ Sex Offender Treatment and Monitoring Program. “And we’ve made it clear in our standards that it isn’t to be used in isolation. We’re using as many avenues as possible to make treatment decisions.”

But a bipartisan cross-section of legislators and a retired judge have joined with offenders and their families to question the validity of the tests.  They contend too much weight is placed on what they argue is little more than junk science.  Flawed polygraphs can complicate efforts for low-risk sex offenders to get paroled and lead to new restrictions for parolees or probationers, critics say.  Failure to take the tests can lead to sanctions, including eventual revocation to prison.

Studies show that up to 70 percent of U.S. states polygraph sex offenders, but experts have testified that Colorado uses the tests aggressively, even polygraphing juvenile offenders for consensual sexting.  Critics contend an entrenched and profitable cottage industry, rife with conflicts of interests, has grown up around polygraphing sex offenders in Colorado.  “To me, there is no question that it borders on a scam,” said Senate President pro tem Jerry Sonnenberg, R-Sterling.  “We incentivize the people who give the polygraph tests to have inconclusive results so an offender has to go back and pay for another one on a more regular basis.”

Colorado’s polygraphing is “grossly excessive,” said Deirdre D’Orazio, a psychologist who serves as an expert on a high-risk sex-offender task force in California, during testimony in federal court in Denver in 2015.  D’Orazio led a team of consultants that issued a report for the Colorado department of corrections in 2013 blasting how it manages sex offenders and how it uses polygraphs.  She returned to the state to testify for Howard Alt, then 51, who a decade earlier was convicted for having sex with a 15-year-old girl and possessing nude computer images of teenage girls.

After his release from prison, Alt had taken 28 polygraphs, often with competing results.  The treatment provider that tested Alt had a “fiduciary incentive conflict” to fail him, D’Orazio said.  The firm was “making money on outcomes that are not in the offender client’s favor” by requiring him to pay for more tests and treatment, she said.

A deceptive finding on one sex-history polygraph had prompted supervision officials to bar Alt, a former software developer, from accepting a job that would raise his salary from $60,000 to $200,000 annually.  Months later, the polygrapher found Alt to be truthful on the same questions even though he did not change his answers, showing the sanction against him was unwarranted, D’Orazio said.  “It is not a scientifically valid procedure,” D’Orazio testified.  “It has a high false-positive rate, which means misclassifying people who are telling the truth as being deceitful. So there is a lot of controversy about using the polygraph in high-stakes decisions.”...

The state of Colorado, relying on court fees paid by those convicted of sex crimes, picks up the tab of the polygraphs for those who are in prison and also often for the indigent who are out on parole or probation.  But when the state fund that pays for the tests runs out of money, parolees and probationers who don’t have the money to pay for them risk running afoul of their supervision requirements.  Revocation to prison can occur for refusing to take the polygraphs, defense lawyers say....

In addition to the legislators, C. Dennis Maes, former chief judge of Pueblo District Court, has criticized the use of polygraphs in Colorado.  He has written to the chief judges of all judicial districts in the state and to Nancy Rice, chief justice of the Colorado Supreme Court, urging a halt to polygraphing sex offenders, pointing out the results can’t be admitted as evidence during civil or criminal trails.  After his retirement, he represented a sex offender on probation, and was shocked when the results of his polygraph were admitted as evidence during a court hearing.

“The Constitution applies to everyone,” Maes said.  “It doesn’t apply to everyone except sex offenders.  The Constitution was designed to protect those that might be the most easily attacked by the government, even sex offenders.  You don’t see polygraphs in any other area of the law.  You can be the most prolific bad-check writer ever and you don’t have to take them, but you do if you’re a sex offender.”

The Denver Post has this companion article headlined "Professional polygrapher holds position of power on state’s sex-offender treatment board: Jeff Jenks’ firm will receive $1.9 million to test sex offenders in Colorado prisons as he sits on the Colorado Sex Offender Management Board"

May 14, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (7)

"Dismissals as Justice"

The title of this post is the title of this notable new paper authored by Anna Roberts available via SSRN. Here is the abstract:

More than a third of our states have given judges a little-known power to dismiss prosecutions, not because of legal or factual insufficiency, but for the sake of justice.  Whether phrased as dismissals “in furtherance of justice” or dismissals of “de minimis” prosecutions, these exercises of judicial power teach two important lessons.

First, judges exercising these dismissals are rebutting the common notion that in the face of over-criminalization and over-incarceration they are powerless to do more than rubberstamp prosecutorial decision-making.  In individual cases, they push back against some of the most problematic aspects of our criminal justice system: its size, harshness, and bias.

Second, these cases converge on shared principles of justice.  These principles conjure a vision of a very different criminal justice system: one in which an alleged criminal act is viewed not in isolation, but within a broader context that includes the apparent motivations for it, and the state’s role in and response to it.  There is no logical reason to confine these principles to this procedural context, and the Article urges their broader consideration.

May 14, 2017 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Some more notable reactions to the Sessions Memo

I highlighted in this prior post some first-cut reactions to the new charging and sentencing memorandum released yesterday by Attorney General Jeff Sessions (basics here). Now I will highlight a few more I have seen:

From NBC News here, "Attorney General Sessions Charts Course Back to Long Drug Sentences"

From BuzzFeed News here, "Former Federal Judges Say Sessions’ New Policy Will Take Power Away From The Courts"

Also from BuzzFeed News here, "Republicans And Democrats Are Blasting The "Dumb On Crime" Sessions Order For Tougher Sentencing"

From the Wall Street Journal here, "As Jeff Sessions Pushes for Tougher Drug Sentences, Previous Policy Gets Mixed Grades"

From the Washington Examiner here, "Former US attorneys hate Jeff Sessions' memo on tougher sentences"

Prior recent related posts: 

May 14, 2017 in Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (7)