January 21, 2017
"Mass Incarceration: Where Do We Go From Here?"
The title of this post is the title of this notable new report produced by the New York City Bar Association’s Task Force on Mass Incarceration. Here is how its introduction gets started:
The devastating consequences of mass incarceration have drawn unprecedented attention over the past few years. Journalists, academics and public interest groups have published extensive research, written compelling articles and lobbied politicians on both sides of the aisle to take concrete steps to reduce both our nation’s prison population and the terrible toll mass incarceration continues to inflict on vulnerable communities. As we show in this Report, progress has been made in the year since our Task Force was established, but much remains to be done. There also is considerable uncertainty about whether successful past initiatives will be carried forward by the Trump administration.
This Report therefore aims, in section II below, to chronicle past successes (as well as frustrations) at both the federal and state/local levels in reducing the country’s prison population and the harmful consequences and burdens of mass incarceration. Then, in section III below, we look ahead to areas for potential further action, again at the federal and the state/local levels. We close with a plea to public officials to use the information and initiatives highlighted here to recognize the enormous economic and social costs of over-incarceration, to emulate the promising examples of progress and reform recounted here, and to be creative in seeking to reduce the public cost and burden of our overreliance upon incarceration while still maintaining public order and safety in all communities.
January 20, 2017
"Dear President Trump: Here’s How to get Right on Crime, Part 3"
As noted in this prior post, the Marshall Project this week has a timely three-part series in which leading conservatives working on and advocating for criminal justice reform are setting out the conservative case for reforms. The first commentary was authored by Pat Nolan and carried the subheadline "Focus on intent, tailor the punishment to the crime, prepare prisoners for life after incarceration." The second commentary was authored by Vikrant Reddy and carried the subheadline "End overcriminalization, reward success, pay attention to the heroin crisis."
The final part comes from the pen of Marc Levin and carries the subheadline "Listen to Pence, Carson, Priebus, Kushner — and look out your window." Here are excerpts:
The new president’s is known for his real estate acumen, but he doesn’t have a monopoly on exclusive properties. It turns out that the cheapest room at the Trump International hotel in New York City costs less than the $620 per night per youth cost for juvenile detention in the Big Apple. In addition to Donald Trump’s message of promoting efficiency in government, he also ran on expanding the workforce to reclaim America’s economic prowess. Yet, so many of those on the margins of our society cannot hold a job because they are incarcerated, have a criminal record, or are suffering from addiction. Indeed, there was a significant correlation between counties with a high numbers of opiate overdose deaths and counties voting for Trump.
While Trump and other nominees have made statements about being tough on crime, Trumpism is consistent with the “deal” that a smaller more effective criminal justice system represents for the American people: better public safety for lower costs while holding offenders accountable. There are also many hopeful signs that the new administration could be as active on the issue as it is on Twitter. Vice President-elect Mike Pence who championed rehabilitation initiatives as governor of Indiana and key figures such as Ben Carson and Reince Priebus have gone on the record in support of criminal justice reforms. Moreover, Jared Kushner, who faced the harrowing experience of seeing his father incarcerated, has supported organizations like the Aleph Institute that works to ensure Jewish prisoners can see a rabbi, and also advocates for sentencing reform.
Additionally, the Trump administration presents a major opportunity to break the criminal justice reform logjam in Congress....
In addition to a default mens rea provision and ensuring that intent be proved for every element of sentencing enhancements, other federal criminal justice reform priorities should include civil asset forfeiture reform, reining in mandatory minimums for nonviolent offenses, and earned time for most inmates who complete programs proven to reduce recidivism. Given that 90 percent of offenders are sentenced and incarcerated at the state and local level, the Department of Justice should continue providing technical assistance to states. This assistance has been instrumental in more than 30 states adopting justice reinvestment plans that lower both costs and crime through solutions such as drug and mental health treatment, problem-solving courts, and swift, certain, and commensurate sanctions to promote compliance with supervision. (Half of those admitted to prisons are there because they violated rules of probation and parole.) Indeed, from 2010 to 2015 in the 10 states with the largest imprisonment declines, the crime rate fell an average of 14.6 percent, compared with 8.4 percent in the 10 states with the biggest growth in imprisonment.
From his position in Trump Tower, the incoming president has had a birdseye view of the single most powerful urban example of simultaneously reducing crime and incarceration. New York City has cut its incarceration rate by 55 percent (combined local jail and state commitments) since 1996, while simultaneously reducing serious crime by a whopping 58 percent. New York City’s broken windows policing model combated an atmosphere of lawlessness by ensuring quality-of-life crimes like graffiti and jumping subway turnstiles were no longer ignored, but the interventions almost always involved alternatives to incarceration. Should not those who defile buildings be put to work cleaning up the mess rather than sit in jail? In the Big Apple, many neighborhoods where crime was once the most salient issue now have the rather preferable problem of increased housing costs. For a new president who has pledged to make America great again, it only makes sense to look at what has made New York City great again: the conservative principles that tell us to be smart, not just tough, on crime.
Prior related posts:
- "Dear President Trump: Here’s How to get Right on Crime, Part 1"
- "Dear President Trump: Here’s How to get Right on Crime, Part 2"
You be the judge: what federal sentence for "Dance Mom" star after her guilty plea to financial crimes?
I am not ashamed to admit that some years ago the reality show "Dance Moms" was a regular watch in the Berman home. My dancing daughters found engaging how the young dancers in the show stood up to the pressures created by teachers and parents; I was amazed at how the adult star, Abby Lee Miller, created a media sensation despite having no obviously distinctive talents. But now, as this local article highlights, headlined "'Dance Moms' TV star faces sentencing in federal court," Abby Lee Miller is now of interest to me for a very different reason. Here are the details:
“Dance Moms” TV star Abby Lee Miller, convicted of hiding assets from bankruptcy court and sneaking cash into the U.S. to conceal it, says she shouldn’t go to federal prison. Ms. Miller, whose real name is Abigale Miller, is asking U.S. District Judge Joy Flowers Conti for probation.
But the government says she has shown no respect for the law — at one point she sent an email to her accountant using a vulgar term in referring to the bankruptcy judge handling her case — and deserves the two years to 30 months called for by federal sentencing guidelines.
Ms. Miller’s sentencing will start today. A second day has been set aside to finish it on Feb. 24. The unusual format was necessary because the sentencing is likely to be contentious enough to require two days and the judge also is handling the ongoing drug trial of former Pittsburgh Steelers doctor Richard Rydze.
Ms. Miller became a federal felon in June when she pleaded guilty to concealing assets from her TV show from federal bankruptcy court in Pittsburgh. She also admitted that she sneaked cash into the country in plastic bags stuffed into luggage after returning from dance trips in Australia. In pre-sentencing filings, Ms. Miller gave an accounting of her past, saying her family-run Penn Hills dance studio was in financial trouble in the late 2000s because of her lack of financial knowledge and a drop in enrollment caused by the global economic crisis and the decline of Penn Hills. She declared bankruptcy in 2010.
But when her reality TV show took off in 2011, she and her lawyer said, she suddenly became a star and didn’t know how to handle the fame that it brought. She soon became overwhelmed. “She was simply ill-equipped to manage her good fortune,” wrote attorney Brandon Verdream. He said she always intended to pay off her creditors at 100 percent and has admitted that what she did was wrong. “It was a foolish decision to skirt the law and she has accepted a felony conviction as the wages of her frivolity,” Mr. Verdream wrote.
He and Ms. Miller, who had been splitting time among homes in California, Florida and Penn Hills, also pointed to all of the people she has helped over the years as one reason she should not be jailed, including the 40-some dancers she has trained who went on to professional careers on Broadway and elsewhere. Mr. Verdream presented many letters on her behalf and asked Judge Conti to impose a “non-custodial” sentence.
But federal prosecutors say the guidelines don’t allow for probation and Ms. Miller’s calculated conduct warrants time behind bars. Assistant U.S. Attorney Greg Melucci said that Ms. Miller had numerous opportunities during her bankruptcy to set the record straight about her assets, yet chose to lie repeatedly.
Among his exhibits are emails and texts she sent showing her contempt for the court and her intent to hide income even after warnings. After being dressed down by U.S. Bankruptcy Judge Thomas Agresti in February 2013, for example, she sent an email to her accountant describing the judge using a derogatory term and complaining that he hated her because he was making her pay all of her creditors back at once.
Judge Agresti showed plenty of irritation at Ms. Miller as her schemes became apparent, Mr. Melucci said. At one hearing in 2012, he found out she hadn’t revealed her income from 2012 and had also struck TV show contracts without disclosing them in an amended bankruptcy plan. After she complained that she didn’t even know about the contracts, he’d had enough. “And she can shake her head and protest all she wants and go through her TV face, that’s not going to affect me, ma’am, and I’d prefer you stop it, OK?” the judge told her. “Let’s be a little stoic here. These are very serious problems you have, and a failure to disclose.”
Mr. Melucci also said her attempt to transport cash into the U.S. shows that she continued “her scheming ways” even after being caught hiding assets from bankruptcy. “It is apparent that Miller is not easily deterred by the threat of criminal prosecution,” he wrote, “even standing before a federal judge.” Judge Agresti discovered Ms. Miller’s fraud by chance. He said he was channel-surfing one night, came across her TV performances and realized she had more money than she was revealing in her Chapter 11 filings.
The U.S. Attorney’s office said she tried to hide about $755,000 from the bankruptcy trustee. In the other case, prosecutors said she did not report money that she transferred from Australia into the U.S. after trips there in 2014 to conduct dance instruction classes before large audiences. Mr. Melucci said she and her entourage brought back about $120,000 in cash tucked into Ziploc bags in amounts less than $10,000 and hidden in their luggage. Among the government’s exhibits is a photo of the cash bundles seized.
January 19, 2017
"Dear President Trump: Here’s How to get Right on Crime, Part 2"
As noted in this prior post, the Marshall Project this week has a timely three-part series in which leading conservatives working on and advocating for criminal justice reform are setting out the conservative case for reforms. The first commentary was authored by Pat Nolan and carried the subheadline "Focus on intent, tailor the punishment to the crime, prepare prisoners for life after incarceration."
The second in the series here is authored by Vikrant Reddy and carries the subheadline "End overcriminalization, reward success, pay attention to the heroin crisis." Here are excerpts:
Criminal justice reform advocates are pessimistic about the prospects for federal sentencing reform under the new presidential administration. Federal sentencing, however, is only one component of America’s vast criminal justice system. There are several other areas where the administration and reformers could find common cause. Here are just three reforms widely supported by advocates which are also consistent with a “Trumpian” worldview. They should be at the forefront of a serious federal reform agenda over the next four years.
Scaling Back Overcriminalization
There are now over 5,000 obscure federal crimes, such as shipping lobster in plastic rather than cardboard boxes, that are more appropriately treated as administrative or regulatory matters. Furthermore, the mens rea or “state of mind” portions of many criminal statutes (which specify whether the conduct must be purposeful, knowing, reckless, or negligent) are frequently left out when laws are drafted. Reversing this “overcriminalization” has long been a priority for conservatives. Yet it has also been a priority for prominent progressive voices, such as the National Association of Criminal Defense Lawyers and U.S. Representatives John Conyers and Bobby Scott....
One of the most widely-admired strategies for improving criminal justice outcomes is performance-incentive funding (PIF). The idea is simple: Governments should fund prisons (and community corrections programs, for that matter) based on outcomes achieved, not merely on the number of people incarcerated. A government that contracts for lower recidivism rates and increased restitution payments to victims is more likely to find that its prisons are encouraging education and job training behind bars. People from the business world who are more concerned with results than with ideologies — such as Donald Trump — are likely to understand this truth intuitively: You get what you pay for....
Combating Heroin Addiction
On Election Day, Trump performed unusually well in communities ravaged by heroin abuse. He seemed to understand that he owes it to these voters — his base — to take the issue seriously. His administration will likely pursue a law enforcement solution that attacks the “supply side” of the heroin problem, as Trump frequently promised on the campaign trail. There is also a “demand side” to the problem, however, and Trump must treat this side of the problem with equal urgency. This means redirecting scarce resources from incarceration to less costly and more effective diversion programs that treat addiction.
Prior related post:
SCOTUS adds a qualified immunity case to its docket
Amy Howe at SCOTUSblog has this new post explaining why the Justices issued a couple cert orders today and detailing the particulars of the two cases taken up by the Court. Here is part of that post that should interesting criminal justice fans:
With the Supreme Court closed tomorrow for the inauguration of President-elect Donald Trump, the justices met today, one day early, for their private conference. One week after adding 16 new cases to their docket, today the justices granted review in two more — potentially filling out their merits docket for the term.
The first grant came in District of Columbia v. Wesby, a case that presents important questions regarding the assessment of probable cause by police officers and qualified immunity. The case arose when police officers in Washington responded to a noise complaint about a vacant house, where they found scantily clad women and the smell of marijuana. No one seemed to know who owned the house or precisely what the occasion was, but some of the partygoers told police that they had been invited by someone named “Peaches” or “Tasty” — who was not at the party, but who admitted that she did not have the owner’s permission to use the house.
The partygoers were arrested for trespassing, but no charges were ever brought against them. The partygoers then filed a lawsuit, in which they alleged that the police lacked probable cause to arrest them because they had told police officers that they had been invited to the house and therefore did not intend to trespass.
The federal trial court and the U.S. Court of Appeals for the District of Columbia Circuit agreed with the partygoers and further ruled that the police officers were not entitled to qualified immunity. The court of appeals denied the city’s motion for rehearing en banc; in dissent from that denial, Judge Brett Kavanaugh wrote (among other things) that this “should be a fairly easy case for qualified immunity.”
The court had relisted Wesby a whopping eight times. Multiple relists can often signal either that the justices are considering a summary reversal — that is, without briefing or oral argument on the merits — of the lower court’s decision or that a justice is writing a dissent from the denial of certiorari, but today the justices instead agreed to review the case on the merits.
Prez Obama wraps up his clemency work with 330 more commutations on his final full day in office
As reported here via USA Today, "President Obama commuted the sentences of 330 more federal inmates Thursday, capping an unprecedented clemency effort that has now released 1,715 prisoners — more than any other president in history." Here is more:
The clemency grants announced on Obama's last full day in office set a one-day record. "Proud to make this one of my final actions as President. America is a nation of second chances, and 1,715 people deserved that shot," Obama tweeted Thursday.
The clemency initiative, which began in 2014, was targeted at drug dealers who received mandatory-minimum sentences during the War on Drugs from the 1980s to the 2000s. But the effort ultimately fell far short of the 10,000 clemency grants former attorney general Eric Holder predicted when the initiative began. And while Obama set a record for granting commutations, he also set a record for denials. As of the end of 2016, he had denied 14,485 petitions and closed another 4,242 without action — an overall grant rate of 5.9%, a couple of percentage points higher than many of his predecessors.
"The president set out to reinvigorate clemency, and he has done just that," White House counsel Neil Eggleston said in a statement.
It's unclear how big of a backlog in clemency cases President-elect Donald Trump will inherit. But Justice Department officials had promised to give an up-or-down determination on every clemency initiative case it received by August. “I’m proud to say we kept that promise," Deputy Attorney General Sally Q. Yates said in a statement. "This undertaking was as enormous as it was unprecedented, and I am incredibly grateful to the teams of people who devoted their time and energy to the project since its inception."
Obama's final list of clemency grants included no more full pardons, meaning his final pardon tally will stand at 212 — fewer than any modern president except Presidents George H.W. Bush and George W. Bush. (It was the younger Bush who gave Obama this advice in the limo ride to the Capitol on his Inauguration Day eight years ago. "Announce a pardon policy early on, and stick to it.")
The grants on Thursday also did not include any of the more high-profile political cases, like former Illinois governor Rod Blagojevich, former Detroit mayor Kwame Kilpatrick, and former congressman Chaka Fattah, all serving time on corruption charges.
With Thursday's action, the Clemency Project 2014 also closes its doors. The coalition of defense attorneys who had agreed to help inmates with their cases says it completed work on all the applications it received. "Of course we'd be delighted to continue, but we have to wait to see whether the next president says whether he will or will not pursue this," he said.
This NBC News coverage of the final grants and the recent history of Obama's clemency initiative closes with a useful account of its ups and downs:
Obama's clemency grants came in large batches, hundreds at a time, accompanied by statements that framed his effort as a bid to become the most merciful president of all time. But his denials were even more voluminous. The effect on applicants and their lawyers was like an emotional roller coaster.
On Wednesday, sandwiched between Obama's two ballyhooed clemency announcements, the Justice Department quietly released the names of more than 2,000 applicants who'd been denied.
James Felman, a Florida defense lawyer who represents dozens of inmates who applied for clemency, celebrated Tuesday when he learned that four had received commutations. On Wednesday, he learned that a dozen others had been denied, and he mourned. On Thursday, Felman was elated again, this time for four more clients who were on Obama's list. A dozen of Felman's clients still have heard nothing. Three are serving life sentences.
And then there's the matter of reform. Advocates point out that clemency does nothing to change policies that led to mass incarceration. Efforts to ease those laws beyond the 2010 changes have stalled in Congress.
Felman, who won commutation for 44 total clients, called Obama's initiative "the single most gratifying professional experience I've ever undertaken." He added: "I have so much gratitude for the president for having the courage and fortitude for doing this. But we know this is not a substitute for reforming the laws that got us here, and we still haven't accomplished that."
Noting that two death row inmates were among the latest batch of commutations by Prez Obama
I am intrigued and a bit surprised that there has not been more media attention surrounding the fact that two of the persons granted clemency by Prez Obama earlier this week were murderers on federal death row. This posting at the Death Penalty Information Center reports on the basics, with also interesting links to some clemency materials:
On January 17, 2017, President Barack Obama commuted the death sentences of Abelardo Arboleda Ortiz, a federal death row prisoner, and Dwight Loving, a military death row prisoner. The two men were among 209 commutations and 64 pardons announced by the White House on the 17th.
Ortiz's lawyers sought clemency from the President on the grounds that Ortiz was intellectually disabled, his right to consular notification under the Vienna Convention had been violated, he did not himself commit the murder and was not in the room when it occurred, and he had been denied effective assistance of counsel at trial. Loving's attorneys argued for clemency on the basis of ineffective assistance of counsel, racial and gender bias in the selection of members of his court-martial, and Supreme Court rulings that called into question the constitutionality of the process by which the military imposes the death penalty.
In Loving's clemency petition, his lawyers state, "Issues of command influence, racial discrimination, and improper panel voting procedures – which were ignored by the courts based on technical legal evidentiary rules – will forever overshadow Loving’s death sentence. Executing him [will] not promote justice or ensure good order and discipline any more than a sentence of life imprisonment."
Ortiz's lawyers said they were "incredibly grateful" to President Obama for the commutation. In a statement, Amy Gershenfeld Donnella said, "Mr. Arboleda Ortiz’s case highlights several of the glaring problems that plague the federal system no less than state systems: dreadful lawyering by defense counsel; disproportionate sentencing even among co-defendants; significant racial, economic and geographic disparities in the choice of those who will be tried capitally; and procedural constraints that make it virtually impossible to correct a conviction or sentence imposed, even in violation of the Constitution, when new evidence comes to light." His case, she said, "epitomizes the broken federal death penalty system." Although federal law and the U.S. Constitution both prohibit using the death penalty against persons who are intellectually disabled, Ortiz's trial lawyer never investigated his intellectual disability, Donnella said. As a result, the jurors made their decision on life or death "in a complete vaccuum" and "an intellectually disabled person of color with an IQ of 54 who was never able to learn to read, write, or do simple arithmetic, and could not even tie his shoes until he was ten years old" was sentenced to die.
Both Ortiz and Loving will now serve sentences of life in prison without the possibility of parole.
This new Marshall Project piece, headlined "How Obama Disappointed on the Death Penalty: Two commutations this week was less than many had hoped for," discusses these two clemencies while also suggesting that they provide only a little succor to the capital abolitionist community.
Using execution protocol with midazolam, Virginia completes second execution of 2017
As reported in this Reuters piece headlined "Virginia inmate executed despite arguments against drug 'cocktail'," Virginia carried out an execution last night that was notable in part because of the type of lethal injection drugs acquired and utilized. Here are the details:
Ricky Gray, 39, died by lethal injection at 9:42 p.m. at the Greensville Correctional Center, Virginia Department of Corrections spokeswoman Lisa Kinney said in an emailed statement.
Gray's lawyers filed an emergency petition with the Supreme Court on Tuesday, saying that the three-drug combination could cause Gray unnecessary suffering and thereby violate constitutional guarantees against cruel and unusual punishment. Kinney told reporters after the execution there did not appear to be any complications with the injection.
According to Gray's stay request, the execution marks the first time a U.S. state has used two of the drugs — midazolam and potassium chloride — provided by a compounding pharmacy. Gray's lawyers argue that compounding pharmacies typically follow an informal recipe attempting to approximate the patented process approved by the U.S. Food and Drug Administration.... Gray's attorneys say that midazolam has already failed to render prisoners unconscious during executions in Alabama, Arizona, Ohio and Oklahoma.
Pharmaceutical manufacturers have stopped making some drugs available for use in executions, and Virginia state law allows the vendor's identity to remain secret. Arizona last month reached a settlement with lawyers for death row inmates that would bar midazolam from use in executions.
Gray was sentenced to die for the 2006 slayings of sisters Ruby Harvey, 4, and Stella Harvey, 9, in Richmond. He also killed their parents, Bryan Harvey, 49, and Kathryn Harvey, 39. His accomplice, Ray Dandridge, was sentenced to life. The pair also killed Ashley Baskerville, 21, who had been a lookout when Gray killed the Harveys as well as her mother, Mary Tucker, 47, and stepfather Percyell Tucker, 55.
Gray has said he is willing to die by firing squad, which is not an option for executions in Virginia. Gray's execution marks the second in the United States this year.
I believe the execution protocol used in Virginia in this instance is similar to the protocol that Ohio wants to use to get back into the execution game next month, and thus I suspect Ohio correction officials are hoping this execution sets a precedent allowing Ohio to move forward. Ohio, notably, has had only one execution over the last three years because of problems acquiring lethal injection drugs. But if they get these problems worked out, there is every reason to suspect the state may get back into the habit of completing five or more executions every year because it has dozens of death row inmates with "serious" execution dates.
A revised empirical look at outcomes achieved by federal public defenders and court-appointed attorneys
In this post from this past summer I noted an intriguing empirical paper posted on SSRN by Yotam Shem-Tov in which the authored, after taking a deep dive into "data from all multiple defendant cases in federal courts between 2001-2014," reached the finding that "that defendants assigned a public defender in co-defendant cases had slightly worse outcomes." A few federal public defenders let me know that the author was checking his data after receiving feedback, and the revised paper now, available here, carries a slightly different title and a significantly different key finding in its abstract:
"An Investigation of Indigent Defense Systems: Public Defenders vs. Court-Appointed Attorneys" by Yotam Shem-Tov
Abstract: To provide essential, constitutionally mandated legal services for defendants without financial means, US courts employ indigent defense systems composed of private court-appointed attorneys and public defenders’ organizations. I investigate the public defender’s causal effect on defendant sentencing outcomes relative to private court-appointed attorneys using a new “twins design” identification strategy. I argue and show empirically that in multiple defendant cases the decision of who is assigned to the public defender organization in jurisdiction X, a large urban locality, can be treated as close to a randomized experiment, which can be utilized to measure the effectiveness of court-appointed private attorneys relative to public defenders. I find that public defenders out-perform court-appointed attorneys in a range of sentencing outcomes. Employing a similar identification strategy in federal courts finds that public defenders perform at least as well if not better then court-appointed attorneys in multiple defendant cases. I provide strong evidence of selection in the assignment of attorney types to defendants in both jurisdiction X and federal courts, which makes a naıve comparison invalid and misleading.
My understanding is that the new empirical analysis now more properly accounts for the fact that public defenders typically will represent the lead defendant (and thus the one usually most culpable defendant) in multiple defendant cases, and thus a proper analysis needs to account for this critical variable.
"State Advances in Criminal Justice Reform, 2016"
The title of this post is the title of this helpful new "Policy Brief" coming from The Sentencing Project. Here is the brief introductory paragraph to the four-page documents helpful accounting of state-level reforms in the year that was:
During 2016, reforms were adopted in at least 17 states targeted at reducing prison populations and addressing collateral consequences for persons with criminal convictions. The issue of mass incarceration has gained broader attention among diverse constituencies, including lawmakers, faith leaders, and civil rights advocates, contributing to a more receptive political environment for criminal justice reform. Highlighted below are the most significant state reforms of 2016 in the areas of sentencing and rights restoration for people with criminal records.
January 18, 2017
Top Massachusetts court adopts "new protocol for case-by-case adjudication" of over 20,000 drug convictions tainted by misconduct of lab chemist
The Massachusetts Supreme Judicial Court today issues a huge new ruling to try to resolve a huge old problem caused by drug lab misconduct. The start of the opinion in Bridgeman v. District Attorney for the Suffolk District, No. SJC 12157 (Mass. Jan. 18, 2017)(available here), provides the back-story and the essential:
We once again confront the tragic legacy of the misconduct of Annie Dookhan when she was employed as a chemist at the William A. Hinton State Laboratory Institute (Hinton lab). In Bridgeman v. District Attorney for the Suffolk Dist., 471 Mass. 465, 487 (2015) (Bridgeman I), the petitioners and the intervener, the Committee for Public Counsel Services (CPCS), asked that we exercise our broad powers of superintendence to vacate the thousands of drug convictions affected by Dookhan's misconduct because the time and expense of case-by-case adjudication had become "untenable." We declined at that time to adopt their proposed "global remedy." However, the district attorneys have now provided the single justice with lists identifying more than 20,000 defendants who could be eligible for relief based on Dookhan's misconduct but who have not yet sought relief from their drug convictions. As a result of the number of potentially aggrieved defendants, the single justice issued a reservation and report to the full court that essentially invites us to reconsider whether the time has come for a global remedy or whether further steps must be taken to realistically implement the remedy of case-by-case adjudication of potentially thousands of motions for a new trial.
After such reconsideration, we decline to adopt the district attorneys' argument that we should stay the course we had previously set and take no further action to protect the rights of the "relevant Dookhan defendants." We also decline to adopt the petitioners' request for a global remedy in which we would either vacate the convictions of all relevant Dookhan defendants with prejudice, and thereby bar any reprosecution, or vacate the convictions without prejudice, and allow the Commonwealth one year to reprosecute, dismissing with prejudice all cases not reprosecuted within that time period.
We instead adopt a new protocol for case-by-case adjudication, which will occur in three phases, and order its implementation by the single justice in the form of a declaratory judgment. In the first phase, the district attorneys shall exercise their prosecutorial discretion and reduce the number of relevant Dookhan defendants by moving to vacate and dismiss with prejudice all drug cases the district attorneys would not or could not reprosecute if a new trial were ordered. In the second phase, new, adequate notice shall be approved by the single justice and provided to all relevant Dookhan defendants whose cases have not been dismissed in phase one. In the third phase, CPCS shall assign counsel to all indigent relevant Dookhan defendants who wish to explore the possibility of moving to vacate their plea or for a new trial. If the number seeking counsel is so large that counsel cannot be assigned despite CPCS's best efforts, the single justice will fashion an appropriate remedy under our general superintendence authority for the constitutional violation, which may include dismissing without prejudice the relevant drug convictions in cases where an indigent defendant is deprived of the right to counsel.
We recognize that the implementation of this protocol will substantially burden the district attorneys, CPCS, and the courts. But we also recognize that Dookhan's misconduct at the Hinton lab has substantially burdened the due process rights of many thousands of defendants whose convictions rested on her tainted drug analysis and who, even if they have served their sentences, continue to suffer the collateral consequences arising from those convictions. And we recognize as well that, more than four years after Dookhan's misconduct was revealed, more than 20,000 defendants who are entitled to a conclusive presumption that egregious government misconduct occurred in their case have yet to receive adequate notice that they may have been victimized by Dookhan's misconduct, that they may file a motion to vacate their drug conviction, and that they have a right to counsel to assist them in the preparation of such a motion. The remedy we order, challenging as it is to implement, preserves the ability of these defendants to vindicate their rights through case-by-case adjudication, respects the exercise of prosecutorial discretion, and maintains the fairness and integrity of our criminal justice system in the wake of a laboratory scandal of unprecedented magnitude.
Some attacks and some defenses of Prez Obama's decision to commute sentence of Chelsea Manning
Because I have not spent a lot of time reviewing the many distinctive and seemingly unique facts relating to Chelsea Manning's offenses and personal history, I really do not have strong opinions about Prez Obama's notable decision to commute her sentence from 35 years down to roughly 7. But it does seem that a lot of other folks have strong views, and here is a mini-round up of criticisms and defenses:
From Bill Otis at Crime & Consequences here, "Treason? Not a Problem!"
From Michael Rubin at the New York Post here, "Setting traitor Manning free is a betrayal by Obama"
From Cully Stimson via the Daily Signal here, "Obama’s Commutation of Manning Sentence Sends a Horrible Message to Service Personnel"
From Fred Kaplan via Slate here, "Obama Was Right to Commute Chelsea Manning’s Sentence"
- From Charles Pierce via Esquire here, "If You Think Chelsea Manning Got Off Easy, You're Out of Your Mind"
From Benjamin Wittes & Susan Hennessey via Lawfare here, "Obama is Right on Chelsea Manning"
Making a provocative case for constitutional amendments to enable more executions to drive down crime
I just noticed this recent commentary by Karl Spence titled "How Donald Trump and Friends Can Crush the Great Crime Wave" with the subheadline "A law-and-order constitutional amendment would speed up the process of justice." The piece is provocative and meandering and a bit dated as it suggests that constitutional protections given to criminals, especially with respect to the death penalty, accounts for the nation's crime problems. I recommend the piece in full because of its notable range of historical and rhetorical flourishes, and here is a taste:
Between 1960 and 1991, the per capita murder rate doubled. Property crime tripled. Robbery and forcible rape more than quadrupled, and aggravated assault — boosted by the same advances in emergency trauma care that retarded the murder rate — more than quintupled. Even after receding from its crest of the early ’90s, violent crime remains twice what it was two generations ago. And today, the mayhem is resurgent.
In the last half-century, crime has killed more Americans than died in all our country’s wars combined, save the Civil War. Its toll dwarfs that of 9/11 — it even dwarfs that of the terrible Indian Ocean tsunami of 2004....
Enter Donald Trump. I was thrilled to hear him pronounce himself “the law-and-order candidate.” Such defiance of the PC gods helped him gain a convincing victory over Hillary Clinton. What remains to be seen is whether Trump will go from talking to thinking about crime, and then to actually doing what is necessary to reach the goal he set forth while accepting the party’s nomination: “The crime and violence that today afflicts our nation will soon — and I mean very soon — come to an end.”...
For decades, some two-thirds of Americans have told pollsters they favor the death penalty for murder. Yet it’s capital punishment’s opponents who get their way nearly all the time. In the past half-century, fewer than 1,500 murderers have been put to death in America; murderers, meanwhile, have killed more than 900,000 of us.
How many of those 900,000 innocent lives were lost needlessly? How many could have been saved by a credible and effective deterrent? Studies have repeatedly shown that the death penalty can be such a deterrent when — and only when — it is actually enforced. Those studies have been rebutted but not refuted, and the stakes in the dispute are these: If the deniers of deterrence are mistaken, then their interference with capital punishment is itself a death sentence for future murder victims....
What of the fact that most criminals stop short of murder? ... How do you reach those people? With a rope. That’s because most robbers depend on the threat of murder to secure their victims’ compliance, as do many rapists. And aggravated assault is, in many if not most cases, simply unsuccessful murder. Hang murderers, and every hoodlum in the land will notice. And, like the outlaws who fled the vigilantes, they will change their behavior....
The ratification of such an amendment [to overturn Fifth and Eighth and Fourteenth Amendment precedents impeding capital punishment] would free the deep-red states to ramp up enforcement of the death penalty until they achieved results even more dramatic and unmistakable than those seen in Texas, where executions increased from zero in 1980 to a record 40 in 2000 — and the murder rate plunged by almost two-thirds, while murder in non-death-penalty states fell only 21 percent. Seeing crime collapse in places where death for murder had become the rule, people elsewhere would clamor for their states to follow suit, and liberals would immolate themselves in a vain attempt to preserve the crime-ridden status quo, with all its injustice, pain, and horror.
Call it the Madison-Roosevelt-Cardozo Amendment. Donald Trump may be fond of boasting, “I alone can fix it,” but if he really wants to restore law and order, “and I mean very soon,” he’ll need all the help he can get.
"Dear President Trump: Here’s How to get Right on Crime, Part 1"
The title of this post is the headline of this notable new Marshall Project piece that is the start of a timely three-part series. Here is how the Marshall Project editors set up the series:
The election of Donald Trump, who ran a swaggering tough-on-crime campaign, disheartened many advocates of bipartisan criminal justice reform. The Marshall Project invited conservatives active in that cause to make a case to the president-elect — a conservative case — for ways to make the system more fair, humane and effective. This is the first of three commentaries.
The commentary to kick this off comes from Pat Nolan and carries the subheadline "Focus on intent, tailor the punishment to the crime, prepare prisoners for life after incarceration." Here is how it gets started:
Conservatives believe that the core function of government is keeping the public safe from harm within the constraints of individual liberty and limited government. We know it is the nature of bureaucracy that government agencies grow in size and inefficiency. The justice system must be held accountable for wise use of tax dollars just as it holds offenders accountable for their actions.
Crime is more than lawbreaking — it is victim harming. Victims should be involved at all stages of the justice process, and the system should aim to repair the harm caused by the crime whenever possible. Offenders should be held accountable to make restitution to their victims.
Evil intent (mens rea) has long been an essential element of all crimes. In recent years, however, the mens rea requirement has been dropped in favor of finding criminality even if there is no intent to break the law. Thus, an act committed in good faith can become the basis for a criminal conviction and a prison sentence. This is wrong, and mens rea must be restored as a key element of every crime.
The greatest power we cede to government is the ability to put someone in prison. While prisons are necessary to isolate offenders who threaten the safety of the community, there is a growing tendency to overuse prisons even when the public is not endangered. There are proven ways to hold non-dangerous offenders accountable without sending them to prison. We should use costly prison beds for the truly dangerous. Prisons are for people we are afraid of, but too often they are used for people we are merely mad at.
Cases should be decided individually, not as an assembly line of one-size-fits-all sentences. The harm done by a sentence should never be greater than the harm caused by the crime.
Crime that crosses state lines and national borders is the proper purview of federal laws. Other than those limited situations, crime is an inherently local problem and should be governed by local and state laws. However, in recent years Congress has federalized many crimes such as carjacking which have no national scope merely to strike a politically popular pose. Only those crimes that have a national reach should be federalized. Other crimes should be left to local law enforcement that is more responsive to their residents.
We recommend greater use of problem-solving courts, such as drug courts, veterans’ courts and mental health courts tailored to the special problems faced by these populations.
Prisons should do more than warehouse inmates. They should prepare offenders for their return to society by providing educational programs such as GED classes, drug treatment, anger management, and job skills. The cost of these programs is far exceeded by the savings from the resulting drop in crime rates.
January 18, 2017 in 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 (1)
January 17, 2017
Extended dissent laments First Circuit panel's rejection of Eighth Amendment attack on 160-year sentence for stash house participant
I just notices a lengthy and blog-worthy opinion issued by the First Circuit late last week in US v. Rivera-Ruperto, No. 12-2364 (1st Cir. Jan 13, 2017) (available here). The start and final substantive paragraphs of the majority opinion provides the factual background for the Eighth Amendment claim and its formal fate:
This case arises out of a now-familiar, large-scale FBI investigation known as "Operation Guard Shack," in which the FBI, in an effort to root out police corruption throughout Puerto Rico, orchestrated a series of staged drug deals over the course of several years. For his participation in six of these Operation Guard Shack drug deals, Defendant- Appellant Wendell Rivera-Ruperto stood two trials and was found guilty of various federal drug and firearms-related crimes. The convictions resulted in Rivera-Ruperto receiving a combined sentence of 161-years and 10-months' imprisonment.....
At oral argument, counsel for Rivera-Ruperto argued that we should be swayed by the fact that, in this case, the crime involved fake drug deals. A near two life-term punishment where no real drugs and no real drug dealers were involved, he contended, is a punishment that is grossly disproportionate on its face. But in coming to this sentence, the judge below was guided by and correctly employed a sentencing scheme that is written into statute -- a statute that makes no distinction between cases involving real versus sham cocaine. At each of the six stings, in fact, Rivera-Ruperto repeatedly and voluntarily showed up armed and provided security services for what he believed to be illegal transactions between real cocaine dealers. The crime of possessing a firearm in furtherance of such a drug trafficking offense is a grave one, and Congress has made a legislative determination that it requires harsh punishment. Given the weight of the case law, we see no Eighth Amendment route for second-guessing that legislative judgment.
We thus cannot conclude that Rivera-Ruperto has established that his sentence, which is largely due to his consecutive sentences under § 924(c), is grossly disproportionate to the crime, so as to trigger Eighth Amendment protections.
The start and end of Judge Torruella's 35+-page dissent provides a much fuller primer on the Eighth Amendment and one judge's concerns about its application in this case:
The majority today affirms a sentence of 160 years and one month without the possibility of parole for Rivera-Ruperto. The transgression for which Rivera-Ruperto was punished in such an extreme manner was his participation as a security guard in several fake transactions, while the FBI duped Rivera-Ruperto into believing that the composite was actually illegal drugs. The FBI ensured that more than five kilograms of composite moved from one agent's hands to another at each transaction; the FBI also made sure that the rigged script included Rivera-Ruperto's possession of a pistol at each transaction. This combination -- more than five kilograms of composite, a pistol, and separate transactions -- triggered the mandatory consecutive minimums of 18 U.S.C. § 924(c), which make up 130 years of Rivera-Ruperto's sentence.
In a real drug transaction, all participants would be guilty of a crime. And, in general, the greater their knowledge of the crime would be, the harsher the law would punish them. In the fictitious transaction we are faced with today, however, only the duped participants, who had no knowledge of what truly transpired, are punished. The other participants are not only excused, but indeed rewarded for a job well done.
If Rivera-Ruperto had instead knowingly committed several real rapes, second-degree murders, and/or kidnappings, he would have received a much lower sentence; even if Rivera-Ruperto had taken a much more active role in, and brought a gun to, two much larger real drug deals, he would still have received a much lower sentence. For these and many other crimes Rivera-Ruperto would have received sentences that would see him released from prison during the natural term of his life. For the fictitious transgressions concocted by the authorities, however, Rivera- Ruperto will spend his entire life behind bars -- a sentence given to first-degree murderers, 18 U.S.C. § 1111, or those who cause death by wrecking a train carrying high-level nuclear waste. 18 U.S.C. § 1992.
From the majority's approval of the draconian sentence imposed in this case, I respectfully dissent. Rivera-Ruperto's sentence is grossly disproportionate to his offense, and therefore violates the Eighth Amendment to the Constitution. While some seemingly excessively harsh sentences have withstood Eighth Amendment challenges, such harsh sentences have been sanctioned only in the context of recidivists or those who otherwise dedicated themselves to a life of crime -- a context that explained the severity of the sentences. But Rivera-Ruperto has no criminal record, nor has he dedicated himself to a life of crime. Not even under the infamous § 924(c) has a first-time offender like Rivera-Ruperto ever been condemned to spend his entire life in jail....
Never before has a first-time offender who has not dedicated his life to crime been condemned to spend his entire life in prison for a transgression such as Rivera-Ruperto's, not even in cases in which the transgression was real -- and Rivera's-Ruperto's transgression is fictitious.
The Government has effectively asked this court to pronounce the Eighth Amendment dead for sentences for a term of years. I respectfully refuse to join in this pronouncement. "Unless we are to abandon the moral commitment embodied in the Eighth Amendment, proportionality review must never become effectively obsolete." Graham, 560 U.S. at 85 (Stevens, Ginsburg, Sotomayor, JJ., concurring).
Prez Obama issues clemency to 273 more individuals (209 commutation and 64 pardons) and Chelsea Manning among those getting a commuted sentence
Today, 273 individuals learned that the President has given them a second chance. With today’s 209 grants of commutation, the President has now commuted the sentences of 1,385 individuals — the most grants of commutation issued by any President in this nation’s history. President Obama’s 1,385 commutation grants — which includes 504 life sentences — is also more than the total number of commutations issued by the past 12 presidents combined. And with today’s 64 pardons, the President has now granted a total of 212 pardons.
Today, 209 commutation recipients — including 109 individuals who had believed they would live out their remaining days in prison — learned that they will be rejoining their families and loved ones, and 64 pardon recipients learned that their past convictions have been forgiven. These 273 individuals learned that our nation is a forgiving nation, where hard work and a commitment to rehabilitation can lead to a second chance, and where wrongs from the past will not deprive an individual of the opportunity to move forward. Today, 273 individuals — like President Obama’s 1,324 clemency recipients before them — learned that our President has found them deserving of a second chance.
There is at least one high-profile recipient of a commutation today, as this FoxNews headline reveals:
The White House said that Manning is one of 209 inmates whose sentences Obama is shortening. Obama is also pardoning 64 people, including retired Gen. James Cartwright, who was charged with making false statements during a probe into disclosure of classified information. Most of the other people receiving commutations were serving sentences for nonviolent drug offenses.
Manning is more than six years into a 35-year sentence for leaking classified government and military documents to the anti-secrecy website WikiLeaks. Her sentence is now set to expire May 17.
NY Times editorial rightly notes Prez Obama's clemency failings, especially with respect to pardons
This New York Times editorial, headlined "Mr. Obama, Pick Up Your Pardon Pen," properly laments the fact that Prez Obama has used his clemency power much more for commutations than for pardons, and it even takes some astute shots at the Prez for how his has gone about his commutations. Here is some of the criticism:
For more than four decades, Sala Udin lived under the shadow of a federal firearms conviction, the result of a search by the Kentucky police who found an unloaded shotgun in the trunk of his car in 1970.
Mr. Udin, who had been a Freedom Rider during the civil rights era, carried the gun for protection as he drove around the South. After eight months in prison, he lived an exemplary life, serving on the Pittsburgh City Council and playing a role in the city’s redevelopment. But when President Obama visited Pittsburgh in 2009, Mr. Udin wasn’t allowed to meet him: His criminal record prevented such an encounter.
Last month, Mr. Obama issued Mr. Udin a pardon — one of just 148 pardons the president has granted during his two terms in office. It is an abysmally low number for a president who has stressed his commitment to second chances and the importance of helping convicted people re-enter society.
The White House has been trumpeting Mr. Obama’s use of his clemency power in the last two years, especially his nearly 1,200 commutations of prison sentences, more than the last several presidents combined. Most of these inmates were serving outrageously long terms, including life without parole, for nonviolent drug crimes. Commuting those sentences is meaningful progress, even if Mr. Obama could and should have started much earlier and released thousands more deserving people.
But when it comes to the other type of executive clemency — pardons — Mr. Obama hasn’t been an improvement over his predecessors. Unlike a commutation, which shortens or ends a prison sentence, a pardon is an act of forgiveness granted to someone who has completed a sentence. Pardons remove the stigma of conviction and restore the right to hold office, to vote, to obtain certain business licenses and to own a gun — all activities that can be denied those with criminal records.
The reluctance to grant pardons makes even less sense than a reluctance to give out commutations, since the sentences have already been served and there is no public safety concern. In both cases, the trouble rests with the people acting as the gatekeepers of mercy. The clemency process is run out of the Justice Department, where career prosecutors have little interest in reversing the work of their colleagues. It’s a recipe for intransigence, dysfunction and injustice on a mass scale....
There is a better way. In both liberal and conservative states, from Delaware and Connecticut to Nebraska and Georgia, the pardon process is more predictable and transparent. Some states require independent boards to make pardon recommendations to the governor; others hold regularly scheduled public hearings. All take the executive’s job of granting mercy seriously, which makes those grants both more fair and more common.
On Mr. Obama’s first Inauguration Day, in 2009, President George W. Bush gave him a good piece of advice: Pick a pardon policy and stick with it. Perhaps President-elect Donald Trump will learn from Mr. Obama’s failure to heed that wisdom.
Though this is an effective editorial, it might also have noted that federal law lacks any mechanism for getting a criminal record sealed or expunged and thus a Presidential pardon is the only method for a former federal offenders to get his record cleaned. This reality makes pardon practice all that much more important at the federal level, though it also should at some point prompt federal lawmakers to consider creating a needed statutory mechanism for record sealing or expungement as exists in so many states.
Some notable local death penalty headlines from two very different localities
These two local capital punishment headlines and stories caught my eye this afternoon:
The Georgia story is just a report on an advocacy group that surely faces an uphill battle getting the Peach State to consider seriously the repeal of the death penalty. But abolitionists should be revved up about the Washington story as it seems political forces are lining up to make repeal there a real possibility.
January 16, 2017
SCOTUS to confront implication for immigration statute of Johnson vagueness ruling
On Tuesday, the Supreme Court is scheduled to hear oral argument in Lynch v. Dimaya, which comes to the Justices as part of the aftermath of their big 2015 Armed Career Criminal Act vagueness ruling in Johnson v. United States. Over at SCOTUSblog here, Kevin Johnson has this preview of the case. It starts this way:
The U.S government targets noncitizens with criminal convictions for removal from the United States. These efforts have allowed President Barack Obama’s administration to deport approximately 2.5 million noncitizens during Obama’s eight years in office, more than any other president in American history. On several recent occasions, the Supreme Court has found that the administration went too far and has set aside orders of removal of criminal offenders that it has found to be inconsistent with the immigration statute. For example, in Mellouli v. Lynch, in 2015, the court held that a state misdemeanor conviction for possession of drug paraphernalia did not justify removal. In 2013, in Moncrieffe v. Holder, the justices found that a lawful permanent resident’s conviction for possession of a small amount of marijuana — now legal in many states — did not mandate removal. Next week, the Supreme Court will hear oral argument in Lynch v. Dimaya, another criminal-removal case, but one with potentially far-reaching constitutional implications.
A noncitizen, including a lawful permanent resident, who is convicted of an “aggravated felony” is subject to mandatory removal. The Immigration and Nationality Act defines “aggravated felonies” expansively to include crimes, including some misdemeanors, that run the gamut from murder to virtually any drug and firearm offense. That definition incorporates 18 U.S.C. §16(b), known as the “residual clause,” which defines a “crime of violence” to encompass “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”
In 2015, in Johnson v. United States, the court, in an opinion by Justice Antonin Scalia, struck down as unconstitutionally vague the Armed Career Criminal Act’s definition of “violent felony,” which included crimes that “involve conduct that presents a serious potential risk of physical injury to another.” The Johnson court held that the statutory language “fail[ed] to give ordinary people fair notice of the conduct it punishes, [and was] so standardless that it invite[d] arbitrary enforcement.”
Born in the Philippines, James Garcia Dimaya has lived in the United States as a lawful permanent resident since 1992. Based on Dimaya’s two California burglary convictions, the U.S. government sought to remove him from the United States. Finding that burglary was a “crime of violence” under Section 16(b)’s residual clause and thus an “aggravated felony,” an immigration judge ordered Dimaya removed. The Board of Immigration Appeals agreed. In a rare decision finding a removal provision of the U.S. immigration laws to be unconstitutional, the U.S. Court of Appeals for the 9th Circuit concluded that Section 16(b) was void for vagueness.
After reviewing tens of thousands of requests, Obama Administration reportedly finds a few hundred more prisoners worthy of clemency
Anyone hoping Prez Obama would go out of office this week with a huge clemency bang will likely be disappointed to see this new Washington Post report headlined "Obama to commute hundreds of federal drug sentences in final grants of clemency." I have been assuming Obama would make news with a few hundred more grants, but I know some advocates were hoping there would be perhaps thousands of commutations as Obama heads for the Oval Office exit. Here instead is what we can expect after seemingly a whole lot of work by a whole lot of lawyers and DOJ officials:
Justice Department officials have completed their review of more than 16,000 clemency petitions filed by federal prisoners over the past two years and sent their last recommendations to President Obama, who is set to grant hundreds more commutations to nonviolent drug offenders during his final days in office.
“Everyone has killed themselves here to get the final recommendations to the president,” Deputy Attorney General Sally Q. Yates said in an interview. “We were in overdrive. We were determined to live up to our commitment. It was 24-7 over the Christmas break.” U.S. Pardon Attorney Robert A. Zauzmer has not taken a day off since Yates brought him on in February 2016 to sift through the backlog of thousands of petitions. From her home in Atlanta, Yates said she reviewed hundreds of petitions during the holidays.
As President-elect Donald Trump prepares to take office, Justice officials worry that his administration will dismantle Obama’s clemency initiative, which has resulted in the early release of 1,176 drug offenders who were sentenced under the severe mandatory minimum laws passed in the 1980s and 1990s during the nation’s “war on drugs.” More than 400 were serving life sentences. Yates said Obama will grant “a significant” number of commutations this week, but would not specify a number. Several people close to the process said it will be several hundred.
Those officials also fear that the next attorney general may undo new criminal justice policies. Then-Attorney General Eric H. Holder Jr. put in place a policy three years ago to reserve the most severe drug-offense penalties for high-level or violent drug traffickers — and no longer charge low-level, nonviolent drug offenders with crimes that impose severe mandatory minimum sentences. Justice Department data indicate that prosecutors are now focusing on more-serious drug cases, and there have been fewer charges that carry mandatory sentences.
Neither Trump nor his attorney general-nominee, Sen. Jeff Sessions (R-Ala.), has said what actions might be taken on drug charging policy or clemency, but during his campaign, Trump criticized Obama’s initiative to grant commutations. “Some of these people are bad dudes,” he said. “And these are people who are out, they’re walking the streets. Sleep tight, folks.”...
At several points during the past two years, it appeared that Obama’s clemency initiative might have been derailed, partly by a lack of resources but also by a cumbersome review process. After Holder and then-Deputy Attorney General James Cole began the effort in the spring of 2014, thousands of inmates applied. To help them with their petitions, outside lawyers formed an organization called Clemency Project 2014, which includes Families Against Mandatory Minimums, the American Civil Liberties Union, the American Bar Association and the National Association of Criminal Defense Lawyers.
About 4,000 volunteer lawyers signed up to help in what has become one of the largest pro bono efforts in the history of the legal profession in the United States. Once the lawyers submitted the petitions, the U.S. pardon attorney made recommendations to the deputy attorney general, who reviewed the cases and sent them to the White House counsel, who also reviewed them before choosing which ones went to Obama.
When Yates arrived at Justice in the spring of 2015, the clemency program was overwhelmed and bogged down. Advocates criticized the inefficient process and urged the Obama administration to pick up the pace for the inmates waiting for relief from unfair sentences. “There wasn’t an apparatus set up,” Yates said. “When I arrived, they were doing the best they could . . . but we didn’t really have a playbook.”
Early last year, more than 9,000 clemency petitions were pending, and the pardon attorney at the time was so frustrated that she quit. Yates brought on Zauzmer, a longtime federal prosecutor, who prioritized applications so that Justice lawyers could focus on inmates who met the criteria: Inmates had to have served at least 10 years; had no significant criminal history; no connection to gangs, cartels or organized crime; and probably would have received a “substantially lower sentence” if convicted today.
“These are big decisions that you’re making,” Yates said, alluding to the public-safety risks and the need to provide a “sophisticated analysis” to the president. “If it’s to let someone out of prison early, earlier than what their original sentence was, you’ve got to be careful about those decisions,” she said. “There’s lots of people whose current offense or conviction is a nonviolent drug offense . . . but you have to look at their past as well and at their criminal history. You have to look at their conduct [in prison].”
Not all inmates who have been granted clemency will be released immediately or even in a number of months. Last summer, the Obama administration began granting clemency to some inmates by reducing their sentences; in some cases, they will remain in prison for years. At the end of August, Yates announced that she would review and give Obama a recommendation on every petition from a drug offender that was still in the department’s possession at that time — about 6,195 petitions. She did that, and included several hundred petitions received through Sept. 15, after her cutoff date. She also reviewed petitions that came in as late as Nov. 30 from drug offenders serving life sentences. By last Friday, the final number of petitions reviewed was 16,776. “Sally deserves a lot of credit,” Holder said in an interview. “She set this goal of looking at every drug-clemency petition, and they accomplished that.”
I want to give DAG Yates and Pardon Attorney Zauzmer lots and lots of credit for all their efforts, and I will also give some credit to Prez Obama for ultimately making clemency an 11th hour priority. But given that Prez Obama set of modern record for fewest clemencies during his first term in office, and especially because he leaves in place the same troublesome clemency process that has contributed to problems in the past, I will still look at Obama's tenure largely as an opportunity missed.
"How the states can show the way: Participating in criminal justice reform, the states have saved over a billion dollars"
The title of this post is the headline given to this new Washington Times commentary authored by Marc Levin. Here is how it gets started:
While the nation is still waiting to see if Congress will take up criminal justice reform, states have been quietly getting the job done. A new Urban Institute report shows that states participating in the Justice Reinvestment Initiative (JRI) have saved over a billion dollars thus far through smart reforms to sentencing laws, pretrial practices, and prison release policies. Moreover, this has enhanced public safety.
It’s a direction deserving of praise on both sides of the aisle. Reforms curb prison growth and relieve unsustainable costs for the states, while giving states the opportunity to reinvest funds into programs that will reduce crime and reoffending, such as community behavioral health treatment, and services for victims. And they have reinvested, at least $450 million so far.
Guided by the U.S. Department of Justice and the Pew Charitable Trusts, JRI catalyzes change in both process and policy through intensive technical support to bipartisan groups of key criminal justice players. Where states typically address criminal penalties on ad hoc basis, JRI brings together a task force of judges, prosecutors, victims’ advocates, and other stakeholders to analyze data about the state’s prison population and use it as the basis to collaboratively develop a comprehensive plan that will cut growth and reduce reoffending. The policy reforms embrace accountability for both offenders and the justice system, better distinguishing between those who must be incarcerated due to the danger they pose to society and those who can be rehabilitated in the community.
Here in Texas, success with this type of criminal justice reform was part of what prompted broad investment in JRI. Texas reforms have yielded an incredible $3 billion in savings and averted costs over almost 10 years, providing opportunities to reinvest hundreds of millions of dollars into treatment and diversion programs. Among the most successful interventions that Texas expanded in its 2007 justice reinvestment plan were drug courts, which led to lower re-arrest rates and reincarceration rates while costing the state a fraction of the amount Texas spends on incarceration.
Alongside declines in imprisonment we see a decline in crime rate. From 2010 to 2015 in the 10 states with the largest imprisonment declines, the crime rate fell an average of 14.4 percent, compared with 8.1 percent in the 10 states with the biggest growth in imprisonment. For example, the FBI index crime rate in South Carolina is now 15.7 percent lower than when the state’s justice reinvestment plan was adopted in 2010. Similarly, Texas’ crime rate has fallen 30 percent since its 2007 justice reinvestment plan.
UCLA Prison Law & Policy Program launches Prison Law JD, a new listserv for connecting new folks to prisoners' rights lawyers.
The UCLA Prison Law & Policy Program has just launched Prison Law JD, a new listserv designed for law students and young lawyers interested in prisoners’ rights. It will be used to share job and fellowship announcements and other information of interest, and for discussion and mutual support. There is already an active listserv connecting practicing prisoners’ rights lawyers around the country, which has enabled the building of a strong and supportive national community of people doing this work. Prison Law JD aims to build out this community to include the next generation of prisoners’ rights advocates.
If you know any law students or young lawyers who might want to join, please invite them to contact Sharon Dolovich at dolovich @ law.ucla.edu.
Questioning a new term of supervised release after Prez Obama commutes a life sentence
This new article at The Fix highlights an interesting legal issue that has arisen in the wake of Prez Obama's decision to commute a drug offenders life sentence. Here are the particulars (with a few edits for keeping the legal terminology accurate):
When Jimmy Walden was granted clemency by President Obama, it was the happiest day of his life. Walden was locked up on May 19, 2008 and given a life sentence under federal sentencing guidelines for a very minor drug offense in Tennessee. On August 4, 2016, Walden received an Executive Grant of Clemency commuting his total trial sentence of imprisonment to expire on August 3, 2018. He was ecstatic, but then he got a letter from the court informing him that they wanted to impose a 10-year term of supervised release. The court hadn’t deemed it necessary at the time due to Walden’s life sentence, but since he was getting out, his judge now wanted to impose [supervised release], which in effect is another sentence.
“I was arrested in September 2007. My case was possession with attempt to distribute crack cocaine and marijuana,” Walden tells The Fix from Federal Correctional Institution, Jesup in Georgia. “They arrested me and wanted me to tell. I refused and went to trial. They found me not guilty of count one and guilty of counts two to five. They gave me life from enhancing me because of my priors.”
The two priors were for very small amounts of crack. Walden got caught with 1.3 grams the first time and .5 grams the second time. He was charged with possession with intent to sell. He was sentenced to probation in both cases. But the federal government used those two priors to trigger the career criminal statute and sentenced Walden to life. He was effectively doing life for around 50 grams of crack cocaine. That’s why Obama pardoned him, because he was serving a disproportionate sentence....
But at the same time he was getting congratulated on his presidential commutation, he received a disconcerting letter from the sentencing court saying that even though his judge omitted to sentence him to [supervised release] at his original sentencing, the judge now wanted to impose a term of supervised release on Walden once he was released. The judge went back and did a re-do, issuing an order that would amend a judgement that was final nine years ago. If Walden tried to get back in court on some issue and change his sentence, he’d be time barred by the court — but it seems the court can do as it pleases when it comes to drug war prisoners, while those unjustly incarcerated must follow the rules....
For some clarity on the matter, The Fix reached out to some clemency experts — P.S. Ruckman Jr., a professor of political science who runs the Pardon Power blog, and Margaret Love, the former pardon attorney under former President Bill Clinton — to get their opinions on the legalities involved with pardons and what the courts can or can’t do in this situation. “The president has the power to grant commutations of sentence, with or without conditions,” Ruckman tells The Fix.... “Presidents have commuted sentences on the condition that prisoners never drink again, that they live with their parents, that they leave D.C., that they join the army, that they leave the United States and never return, etc. In the past, prisoners have refused attached conditions and chosen to remain in prison. My understanding is that this was a conditional pardon.”
If 10 years [supervised release] was one of the conditions of clemency like attending the Bureau of Prisons’ Residential Drug Abuse Program was then Walden has to accept it as part of the clemency grant or stay in prison like Ruckman said. No one would do that, but if the 10 years supervised release wasn’t a condition of the grant of clemency, then the court shouldn’t have any right to impose it. That would be illegal.
“I understand that the president’s commutation order did not mention a term of supervised release,” Margaret Love tells The Fix. “In any case, the pardon power does not authorize the president to impose a new sentence (which is what a term of supervised release is). The court's power to amend the original judgment to impose a new sentence of supervised release at this point, or to impose any conditions on his release, seems highly doubtful. At this point the court has no power to impose a term of supervised release, effectively a new sentence.”...
Pursuant to Rule 36, the court sent notice to Walden that it intends to amend the Judgment and Commitment Order to correct the Court's omission of failing to impose mandatory terms of supervised release as required by the statute. The court intends to order that all terms of supervised release run concurrently for a net effective term of 10 years of supervised release. The court also intends to impose the Standards Conditions of Supervision that have been adopted by his Court. The court appointed a public defender and informed Walden that he could object to the imposition of the term of supervised release.
“I objected,” Walden says. “The point is I have remained in zero trouble inside prison. The president gave me clemency because he believed in me. The judge now wants to add 10 years supervised release onto my sentence after my sentence has been final for over nine years. This is a violation of due process. As an inmate I have no legal way to get back into court. They had their chance at sentencing. I disagree with this reasoning and I have filed a statement that I object to this addition with my attorney. This is an interesting situation. Many people seem interested in the outcome. It is illegal and should be brought to the public's attention.”
Even Walden’s public defender wasn’t sure about the legalities involved in this case, “I am currently reaching out to defenders across the nation to see if they have input on whether this is permissible post-grant of clemency,” she wrote him. Currently the public defender is in the process of making a supplement to the objections that Walden has. Plus other prisoners who received clemency grants from Obama have not received letters from their judge and court attempting to amend a judgment that is already final. Walden is ready to get on with his life without [supervised release] hovering over his head.
“I would like to drive trucks after getting my CDL license,” Walden says. “I thank God for another chance. I have this desire to drive trucks and see the country at the same time. Perhaps I will have a chance to speak to younger people and explain to them how unwise choices have consequences. I can stop youth from making the same mistakes I have. I am blessed that Obama came into office and helped me, or I’d be just another number serving life behind bars. There may not always be a President Obama around to give people another chance. I will definitely take the opportunity to prove to people like the President-elect that some people are deserving of a second chance. I would certainly not want to mess up someone down the line from getting the same relief as me.”
The legal issue here strikes me as an interesting mix of functionalities and technicalities. There was, of course, no functional reason for the sentencing judge to impose any term of supervised release at initial sentencing when imposing an LWOP sentence. But now that a commutation has resulted in an offender getting released after serving less than a decade, there now is a functional reason for imposing at least some SR term (which would have been a required part of the sentence had the defendant been sentenced to less than LWOP). But, technically, I think there is a forceful argument that if the Prez did not include the addition of an SR term in his clemency grant, then it is improper for the original sentencing judge to now add that on to the defendant's original (now commuted) sentence.
Notably, the White House clemency page reports that the "1,176 men and women" who have had their prison sentences commuted by Prez Obama includes "395 individuals who were serving life sentences." Thus there are literally hundreds of individuals who could have this kind of post-commutation issue arise (although I doubt all sentencing courts are going to be as proactive as the court that added 10 years of supervised release to Walden's sentence).
"Prison Work Programs in a Model of Deterrence"
The title of this post is the title of this new paper authored by A. Mitchell Polinsky now available via SSRN. Here is the abstract:
This article considers the social desirability of prison work programs in a model in which the function of imprisonment is to deter crime. Two types of prison work programs are studied — voluntary ones and mandatory ones. A voluntary work program is socially beneficial: if prisoners are paid a wage that just compensates them for their disutility from work, the deterrent effect of the prison sentence is unaffected, but society obtains the product of the work program. But a mandatory work program is superior to a voluntary work program: if prisoners are forced to work without compensation, the deterrent effect of the prison sentence rises, allowing society to restore deterrence and save resources by reducing the probability of detection or the sentence length, and also to obtain greater output than under the optimal voluntary work program. In an extension of the basic analysis, however, in which prisoners vary in their disutility from work, a voluntary work program may be superior to a mandatory work program because prisoners with relatively high disutility from work can elect not to work.
January 15, 2017
Nebraska Supreme Court decides "undocumented status" can be proper, but not conclusive, sentencing factor when deciding on probation sentence
As reported in this local article, headlined "Immigration status can be used to help decide sentencing, Nebraska Supreme Court says," the top court in the Cornhusker State handed down an interesting ruling late last week. Here is the effective press summary of the decision:
A person’s immigration status can be considered when deciding if someone should be sentenced to probation rather than jail, though it cannot be the sole factor, the Nebraska Supreme Court ruled Friday. It was the first time the state’s highest court has weighed in on the issue of whether criminal defendants can be denied probation solely because they are in the country illegally.
Jose Cerritos-Valdez had appealed after being sentenced to 230 days in jail and a $500 fine for two misdemeanors, attempted possession of a controlled substance and driving under the influence. His driving privileges were revoked for one year.
During sentencing, Sarpy County District Judge David Arterburn expressed reluctance to sentence Cerritos-Valdez to probation. One condition of probation is to obey all laws, and to do that, the judge said, would require Cerritos-Valdez to leave the country, because he was in the United States illegally. Arterburn also said he’d like to get some guidance on the issue from a higher court.
The Supreme Court’s ruling, written by Judge Stephanie Stacy, said that while this is an unsettled area of law, a consensus has formed in other courts that defendants cannot be denied probation solely because they are in the country illegally.
The full ruling in Nebraska v. Cerritos-Valdez is available at this link, and here is the heart of the court's nuanced analysis (with footnotes/cites removed):
This case presents the narrow question of whether a defendant’s undocumented status is a relevant consideration when determining whether to grant or deny probation. We have not previously considered this question, but other courts have.
While the law in this area is not well settled, a consensus has developed that it is impermissible for a sentencing court to deny probation based solely on a defendant’s undocumented status. Beyond that broad proposition, courts differ on when, or for what purpose, a sentencing judge may properly consider a defendant’s undocumented status when deciding whether to impose probation.
Generally, in discussing whether it was proper to consider a defendant’s undocumented status in connection with deciding whether to impose a sentence of probation, other courts have focused on whether the defendant’s status implicated other relevant sentencing considerations. For instance, some courts have held it is appropriate to consider the effect of a defendant’s undocumented status on his or her ability or willingness to comply with conditions of probation. Other courts have reasoned that a defendant’s undocumented status or a history of repeated illegal reentry into the U.S. may demonstrate an “unwillingness to conform his or her conduct to the conditions of probation” or show that a probation sentence would not “be at all effective” for that defendant. Still others have held that the undocumented status of defendants may be considered as it relates to their criminal history. At least one court has noted that a defendant’s undocumented status is properly considered as it relates to the defendant’s employment history or legal employability. And we note that in some instances, defendants have specifically asked the sentencing court to consider their undocumented status, arguing it would be error not to consider it.
Based on the foregoing, we agree that a defendant’s status as an undocumented immigrant cannot be the sole factor on which a court relies when determining whether to grant or deny probation; however, a sentencing court need not ignore a defendant’s undocumented status. When deciding whether to grant probation, a defendant’s undocumented status may properly be considered by a sentencing court as one of many factors so long as it is either relevant to the offense for which sentence is being imposed, relevant to consideration of any of the required sentencing factors under Nebraska law, or relevant to the defendant’s ability or willingness to comply with recommended probation conditions.