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September 2, 2017

Anyone want to talk about Judge Richard Posner's sentencing legacy on his retirement day?

As reported here by the Chicago Tribune, one of the most prominent and best-known federal circuit judges suddenly decided to retire from the Seventh Circuit: "Judge Richard A. Posner, one of the nation's leading appellate judges, whose acerbic wit attracted an almost cultlike following within legal circles, is retiring after more than three decades with the 7th U.S. Circuit Court of Appeals in Chicago." Here is more: 

Posner, 78, is stepping down effective Saturday, according to a news release Friday afternoon from the 7th Circuit. He was appointed to the court by President Ronald Reagan in 1981 and served as its chief judge from 1993 to 2000.

Posner said in a statement he has written more than 3,300 opinions in his time on the bench and is "proud to have promoted a pragmatic approach to judging." He said he spent his career applying his view that "judicial opinions should be easy to understand and that judges should focus on the right and wrong in every case."

Posner's biting and often brilliant written opinions as well as his unrelenting questioning from the bench have made him an icon of the court for years. Known as a conservative at the time of his appointment, Posner's views skewed more libertarian through the years, and he often came down in favor of more liberal issues such as gay marriage and abortion rights.

I consider sentencing another arena in which (now former) Judge Posner came to be more liberal over time.  And, in the sentencing universe, I will always think first of Judge Posner sparring with Judge Easterbrook over the impact of the Supreme Court's Blakely decision for the federal sentencing system in US v. Booker when that case was before the Seventh Circuit (that opinion is available at this link).

I suspect some other sentencing fans might have other thoughts about (now former) Judge Posner, especially practitioners within the Seventh Circuit. I would love to hear those thoughts in the comments.

September 2, 2017 in Who Sentences? | Permalink | Comments (13)

September 1, 2017

Two interesting and critical takes on AG Jeff Sessions' repeated statements about rising crime

These two recent commentaries take apart and generally take down statements by Attorney General Jeff Sessions about rising crime rates in the United States:

September 1, 2017 in National and State Crime Data | Permalink | Comments (9)

Federal district judge finds Colorado's Sex Offense Registration Act, as applied, amounts to unconstitutional punishment

A couple of helpful readers made sure I did not miss a notable extended opinion concerning application of Colorado's sex offender registration laws. The opinion in Millard v. Rankin, No. 1:13-cv-02406 (D. Colo. Aug. 31, 2017), which can be downloaded below, starts and ends this way:

Plaintiffs are registered sex offenders under the Colorado Sex Offender Registration Act (“SORA”), C.R.S. §§ 16-22-101, et seq. In this civil action brought pursuant to 42 U.S.C. § 1983 they seek declaratory and injunctive relief, claiming that continuing enforcement of the requirements of SORA against them violates their rights under the Eighth and Fourteenth Amendments to the United States Constitution. Defendant is the Director of the Colorado Bureau of Investigation (“CBI”), the state agency responsible for maintaining the centralized registry of sex offenders and providing information on a state web site....

Based on the foregoing, it is ORDERED that judgment shall enter declaring that the Colorado Sex Offender Registration Act, C.R.S. §§ 16-22-101, et seq., as applied to Plaintiffs David Millard, Eugene Knight, and Arturo Vega, violates the Cruel and Unusual Punishment Clause of the Eighth Amendment to the United States Constitution; it is

FURTHER ORDERED that judgment shall enter declaring that the Colorado Sex Offender Registration Act, C.R.S. §§ 16-22-101, et seq., as applied to Plaintiff Arturo Vega, violates procedural due process requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution; it is

FURTHER ORDERED that judgment shall enter declaring that the Colorado Sex Offender Registration Act, C.R.S. §§ 16-22-101, et seq., as applied to Plaintiffs David Millard, Eugene Knight, and Arturo Vega, violates substantive due process requirements of the Due Process Clause of the Fourteenth Amendment to the United States Constitution; and it is

FURTHER ORDERED that Plaintiffs as prevailing parties shall be entitled to an award reasonable attorney’s fees as part of the costs, to be determined by the Court pursuant to 42 U.S.C. § 1988(b).

Download 20170831 Millard Ruling re Sex Offender Registry

September 1, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (11)

August 31, 2017

Florida Supreme Court says Gov was within authority to remove prosecutor from capital cases

The Florida Supreme Court issues a ruling today in Ayala v. Scott, No. SC 17-653 (Fla Aug 31, 2017) (available here). Here is the start of the opinion and the some of its analysis section:

Aramis Donell Ayala, State Attorney for Florida’s Ninth Judicial Circuit, petitions this Court for a writ of quo warranto, challenging Governor Rick Scott’s authority under section 27.14(1), Florida Statutes (2016), to reassign the prosecution of death-penalty eligible cases in the Ninth Circuit to Brad King, State Attorney for Florida’s Fifth Judicial Circuit. We have jurisdiction.  See article V, § 3(b)(8), Fla. Const.  For the reasons below, we deny Ayala’s petition....

Ayala argues that the Governor exceeded his authority under section 27.14 by reassigning death-penalty eligible cases in the Ninth Circuit to King over her objection because article V, section 17, of the Florida Constitution makes Ayala “the prosecuting officer of all trial courts in [the Ninth] [C]ircuit.”  While quo warranto is the proper vehicle to challenge the Governor’s authority to reassign these cases to King, see Fla. House of Representatives v. Crist, 999 So. 2d 601, 607 (Fla. 2008), Ayala is not entitled to relief because the Governor did not exceed his authority on the facts of this case....

[T]he executive orders reassigning the death-penalty eligible cases in the Ninth Circuit to King fall well “within the bounds” of the Governor’s “broad authority.”  Finch, 254 So. 2d at 204-05.  Far from being unreasoned or arbitrary, as required by section 27.14(1), the reassignments are predicated upon “good and sufficient reason,” namely Ayala’s blanket refusal to pursue the death penalty in any case despite Florida law establishing the death penalty as an appropriate sentence under certain circumstances. See generally § 921.141, Fla. Stat. (2017).

Notwithstanding the Governor’s compliance with all of the requirements of section 27.14(1), however, Ayala and her amici urge this Court to invalidate the reassignment orders by viewing this case as a power struggle over prosecutorial discretion.  We decline the invitation because by effectively banning the death penalty in the Ninth Circuit — as opposed to making case-specific determinations as to whether the facts of each death-penalty eligible case justify seeking the death penalty — Ayala has exercised no discretion at all.  As New York’s high court cogently explained, “adopting a ‘blanket policy’ ” against the imposition of the death penalty is “in effect refusing to exercise discretion” and tantamount to a “functional[] veto” of state law authorizing prosecutors to pursue the death penalty in appropriate cases. Johnson v. Pataki, 691 N.E.2d 1002, 1007 (N.Y. 1997).

Two Justices dissented, and the dissenting opinion starts this way:

This case is about the independence of duly elected State Attorneys to make lawful decisions within their respective jurisdictions as to sentencing and allocation of their offices’ resources, free from interference by a Governor who disagrees with their decisions.  The issue before this Court is whether a duly elected State Attorney’s choice to forgo seeking one potential penalty in a class of criminal cases, in favor of seeking another penalty authorized by statute, constitutes “good and sufficient reason” for the Governor to exercise his removal power under section 27.14(1), Florida Statutes (2017).  I dissent because the State Attorney’s decision to prosecute first-degree murder cases but not seek the death penalty at this time does not provide a basis for the Governor to remove State Attorney Aramis Ayala.

August 31, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (13)

Thoughtful account of what to think about risk assessment tools

This new commentary at The Crime Report authored by Megan Stevenson, headlined simply "Is Crime Predictable?," provides an effectively measured discussion of the use of risk assessment tools in criminal justice decision-making. Here is how it starts and ends:

Should the increased use of computer-generated risk algorithms to determine criminal justice outcomes be cause for concern or celebration? This is a hard question to answer, but not for the reasons most people think.

Judges around the country are using computer-generated algorithms to predict the likelihood that a person will commit crime in the future. They use these predictions to help determine pretrial custody, sentence length, prison security-level, probation, parole, and post-release supervision.

Proponents argue that by replacing the ad-hoc and subjective assessments of judges with sophisticated risk assessment instruments, we can reduce incarceration without affecting public safety. Critics respond that they don’t want to live in a “Minority Report” state where people are punished for crimes before they are committed—particularly if risk assessments are biased against blacks.

Which side is right? It’s hard to answer because there is no single answer: The impacts that risk assessments have in practice depend crucially on how they are implemented. Risk assessments are tools — no more and no less. They can be used to increase incarceration or decrease incarceration. They can be used to increase racial disparities or decrease disparities.

They can be used to direct “high risk” people towards support and services or to punish them more harshly.They can be implemented in such a broad set of ways that thinking about them monolithically just doesn’t make sense....

We already live in a “Minority Report” state: the practice of grounding criminal justice decisions on predictions about future crime has been around a long time. The recent shift towards adopting risk assessment tools simply formalizes this process—and in doing so, provides an opportunity to shape what this process looks like.

Instead of embracing risk assessment wholeheartedly or condemning it without reserve, reformers should ask whether there is a particular implementation design by which risk assessment could advance the much-needed goals of reform.

UPDATE: I am pleased to see that this commentary has now been given a more fitting headline over at The Crime Report: "Risk Assessment: The Devil’s in the Details"

August 31, 2017 in Procedure and Proof at Sentencing, Recommended reading, Who Sentences? | Permalink | Comments (4)

Interesting accounting of effort by Michigan juve killer to get Miller resentencing relief even though he is parole eligible

I was intrigued to see this local Michigan story, headlined "Sides plea on re-sentencing of teen killer," discussing a courtroom debate over whether a juvenile killer long ago sentenced to life with parole should still be able to secure resentencing thanks to the Supreme Court's recent Eighth Amendment jurisprudence. I find the story intriguing not only because of an effort to expand the reach of Miller, but also because the murder victim's family is apparently supportive of the offender's effort to secure release nearly four decades after the crime:

Members of both families packed a courtroom Wednesday as lawyers argued for and against a re-sentencing for a man who killed a high school classmate in 1980. Relatives of Michael Johnson, serving a life sentence for murdering Sue Ellen Machemer, and relatives of Sue Ellen sat on the same side of the courtroom during his bid for re-sentencing. For years, the victim’s family, as well as Johnson’s, have supported his release from prison.

Johnson, 54, was 17 when he killed Sue Ellen, a 15-year-old classmate at Lakeshore High School, where they were both juniors. Johnson, who is in the Ionia Correctional Facility, did not appear at Wednesday’s hearing. His lawyer, Mary Chartier of Lansing, argued for a re-sentencing for Johnson, saying his life sentence, though parolable, is unconstitutional and invalid based on new information about the brain development and characteristics of juveniles. Also, because the Michigan Parole Board has not taken an interest in Johnson’s case, he has no meaningful opportunity for release, Chartier told Berrien County Trial Court Judge John Donahue.

Berrien Assistant Prosecutor Aaron Mead argued that the Parole Board’s action, or lack of, has nothing to do with the validity of the sentence, and that Johnson’s case would be better fought by suing the Parole Board. “Frankly, allowing somebody to back door the Parole Board by saying a sentence is invalid is a very bad precedent,” Mead told the judge at a hearing Wednesday on Johnson’s motion for a re-sentencing.

Donahue took the lawyers’ arguments under advisement and said he will rule in four to eight weeks whether Johnson should be re-sentenced.

Chartier said Johnson’s sentence is unconstitutional because it began when he was a juvenile. The U.S. Supreme Court has ruled that mandatory life imprisonment without the possibility of parole violates the Eighth Amendment when applied to juveniles. Because the ruling is retroactive, courts are working through a number of first-degree murder cases involving juvenile offenders, and in some cases re-sentencing them.

Mead argues that Johnson’s case does not apply because he pleaded guilty to second-degree murder, and was sentenced by the late Judge Julian Hughes to life in prison with the possibility of parole. After serving 10 years, Johnson came into the parole board’s jurisdiction, but the board has never expressed interest in paroling him.

In 2010, Johnson lost on a motion to set aside his life prison sentence. Donahue, who hears Johnson’s motions because he is Hughes’ predecessor on the bench, rejected Johnson’s earlier argument that a change in Michigan Parole Board policies invalidated his sentence. Sue Ellen’s parents, Mel and Ellen Machemer, sat next to Johnson’s family in court, as they did during the hearing in 2010. The Machemers say they have gotten to know Johnson as an adult in prison, have forgiven him, and think it may be time for his release. His own family also supports him and says he has a place to live and a job waiting for him.

Chartier told the judge Wednesday that when Johnson’s file is looked at every five years, he gets a notice of “no interest” from the Parole Board and therefore has repeatedly been denied any meaningful opportunity for release. She said his sentence has been more harsh than that of juveniles convicted of first-degree murder because their cases now have to be reconsidered. “The Supreme Court says that juveniles must be offered some meaningful opportunity for release, and mere hope is not enough,” Chartier told the court. “The Supreme Court says juveniles are different, that wasn’t (considered) in Michael Johnson’s case. These rulings are retroactive, and he’s being denied the (high court’s) mandate for a meaningful opportunity for release.”

Chartier further argued that because Johnson’s sentence was life rather than a term of years, he is being treated in the same manner as someone sentenced to life without parole. She said someone sentenced to a term of years, when up for parole review, is told why if parole is not granted. “In his case, they don’t have to state a reason for not hearing it. He is a juvenile serving a life sentence. He’s gotten no guidance regarding what he needs to do to be released,” Chartier told Donahue....

Mead argued that a sentence can only be reviewed if it is determined to be invalid. Johnson was sentenced to parolable life for second-degree murder, a sentence that is valid, Mead told the court. He said the Supreme Court ruling regarding juveniles applied “only to non-parolable life, nothing else.” He said the Berrien County Trial Court cannot find the sentence invalid based on the Parole Board process. “Where do you draw the line regarding meaningful opportunity (for release)? You don’t draw it in this court,” Mead told Donahue. “Nobody has had the Parole Board answer for itself. The defendant is asking you to be a Super Parole Board. If prisoners say the Parole Board is the problem, then by all means hold them accountable.”

August 31, 2017 in Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

August 30, 2017

Recent items of note from the Collateral Consequences Resource Center

As regular readers know, I have made a habit of noting here some posts from the Collateral Consequences Resource Center because the topics covered there are so interesting and get so little attention in the mainstream media (or many other places in the blogosphere).  So are some recent posts of note from CCRC:

August 30, 2017 in Clemency and Pardons, Collateral consequences | Permalink | Comments (1)

More context for contemplating Prez Trump's pardon of Joe Arpaio

Yesterday I noticed two interesting pieces providing some context for Prez Trump's decision last week to make his first use of the clemency power a pardon for Joe Arpaio (basics here).  Here are their headlines, links and leads:

From CNN here, "This chart shows why Trump's pardon of Arpaio was so unusual":

It was an atypical pardon from an atypical president.  When President Donald Trump granted his very first pardon to Arizonan former sheriff Joe Arpaio, he bucked process and precedent by circumventing the Department of Justice's unit dedicated to making recommendations on such requests.  But he also bucked decades of precedent for how recent pardons have nearly always been granted: a majority have come in the last year of a president's term, they usually come in groups of a dozen or more and they cancel convictions averaging more than two decades old.

Trump's pardon of Arpaio marks one of the earliest pardons in a president's term and one of the only pardons granted alone, according to a CNN analysis of Department of Justice data ranging back nearly three decades. And we turned that data into a chart that shows how, historically, this pardon sticks out in all three major areas: numbers of years into a president's term, number of pardons issued at once and time since the conviction or sentencing.

From FiveThirtyEight here, "The Arpaio Pardon Has Plenty Of Precedents … That Got Other Presidents In Trouble":

Was President Trump’s pardon of former Sheriff Joe Arpaio, issued on a Friday night as a deadly hurricane barreled toward the Gulf Coast, unprecedented?  Or just unpopular?

Several political allies and foes immediately condemned the move as inappropriate and an insult to the justice system. But most of the criticized characteristics of Arpaio’s pardon have at least some parallels to previous ones. The number of controversial characteristics of the Arpaio pardon, however, is unusual and raises questions about the political fallout that Trump will face. The Arpaio pardon, in other words, does have historical precedents (as Trump said on Monday) — just not good ones.

Recent prior related posts:

August 30, 2017 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (24)

New report spotlights concerns with background of 26 Ohio condemned scheduled for execution in coming months and years

In this post earlier this year, I reported on a significant report produced by the Fair Punishment Project (FPP) examining the background and case history of eight death row defendants in Arkansas who had approaching execution dates.  That March 2017 Arkansas report from FPP was titled "Prisoners on Arkansas’s Execution List Defined By Mental Illness, Intellectual Disability, and Bad Lawyering," and I am inclined to assert that the FPP report played a role in a few of these Arkansas defendants getting their executions stayed.

Now FPP has turned its eye to the Buckeye State now that Ohio has gotten its machinery of death operating again, and FPP's latest report here is titled "Prisoners on Ohio’s Execution List Defined by Intellectual Impairment, Mental Illness, Trauma, and Young Age." Here is how this report gets started:

On July 26, 2017, Ohio ended its three-year execution moratorium and put Ronald Phillips to death.  Phillips, 19 at the time he committed his crime, had the intellectual functioning of a juvenile, had a father who sexually abused him, and grew up a victim of and a witness to unspeakable physical abuse — information his trial lawyers never learned or presented to a jury.

Ohio intends to execute three more people in 2017 and then 23 more between 2018 and 2020.  We examined the cases of these 26 men, relying on available legal pleadings, court opinions, and where accessible, trial testimony.  We found that these men are among the most impaired and traumatized among us — a pattern replicated across America’s death rows.  At least 17 out of the 26 men experienced serious childhood trauma — horrifying instances of extensive physical and sexual abuse.  At least six men appear to suffer from a mental illness, and at least 11 have evidence of intellectual disability, borderline intellectual disability, or a cognitive impairment, including brain injury.  Three were under the age of 21 at the time they committed their offenses, a period during which an individual’s brain, especially the section related to impulse control and decision-making, is still underdeveloped.  Many of these men fall within several of these categories, which compounds the impairments.

We use the term “at least” because three of these men waived the presentation of mitigation at their trials.  And several had lawyers who conducted little to no investigation at both the trial and post-conviction phase or failed to seek the assistance of psychologists and other experts, despite the presence of familial mental illness, which is often hereditary. Therefore, in those cases, we know very little about existing impairments, even though execution dates are looming.

The Constitution mandates that the state restrict the use of the death penalty to only those “whose extreme culpability makes them ‘the most deserving of execution,’” regardless of the severity of their crimes. The individuals identified here have been convicted of horrible crimes, and they must be held to account.  But the evidence suggests that Ohio has not met its constitutional obligation.  It is instead planning to execute nearly two dozen individuals with substantial impairments, rather than reserving the punishment for those with the greatest culpability.

Below, we describe some of the stories we uncovered while researching these 26 Ohio cases.  We have grouped them by category of impairment which includes serious trauma, mental illness and intellectual disability, and youth.  These distinctions, however, are artificial — many of these men have heartbreaking stories falling within multiple categories. For each example of a debilitating impairment, we could have included many other equally terrifying stories about those facing a sentence of death.

August 30, 2017 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (14)

"Local Democracy, Community Adjudication, and Criminal Justice"

The title of this post is the title of this new essay authored by Laura Appleman now available via SSRN.  Here is the abstract:

Many of our criminal justice woes can be traced to the loss of the community’s decisionmaking ability in adjudicating crime and punishment.  American normative theories of democracy and democratic deliberation have always included the participation of the community as part of our system of criminal justice.  This type of democratic localism is essential for the proper functioning of the criminal system because the criminal justice principles embodying substantive constitutional norms can only be defined through community interactions at the local level.  Accordingly, returning the community to its proper role in deciding punishment for wrongdoers would both improve criminal process and return us to fundamental criminal justice ideals.

August 30, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

August 29, 2017

In wake of Marcellus Williams stay and inquiry, broader reflections on innocence and racial dynamics in capital punishment's administration

As reported in this post last week, just before Marcellus Williams was to be put to death for the 1998 murder of a former newspaper reporter, Missouri Gov Eric Greitens issued a stay of execution and appointed a Board of Inquiry to explore his claims of innocence.  With that case obviously fresh in mind, this week has brought these two related commentaries:

Here, respectively, are the final paragraphs of each piece:

This will not be the first time that we have executed a man despite real doubts about the case. So long as we have the death penalty, it will not be the last.

Racist death penalty statutes must be the first to go. Exercising meaningful, impactful leadership, Gov. Greitens can and should, start with Missouri’s.

August 29, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Third Circuit panel rejects various challenges to severe stash-house sting sentence

A helpful reader made sure that I did not miss yesterday's dynamic discussion by a Third Circuit panel of a set of defense challenges to yet another severe sentence resulting from a stash-house sting.  The start of the majority opinion in US v. Washington, No. 16-2795 (3d Cir. Aug. 28, 2017) (available here), highlights why these cases are so notable:

Defendant-appellant Askia Washington was ensnared by a “stash house reverse sting” operation — one which hit many of the by-now-familiar beats.  Acting on what appeared to be insider information from a drug courier, Washington and his three co-conspirators planned to rob a Philadelphia property where they thought 10 kilograms of cocaine were being stored for distribution.  But as they discovered on the day of the robbery, the “stash house” was a trap set by law enforcement.  Their “courier” was an undercover federal agent with the Bureau of Alcohol, Tobacco, Firearms and Explosives (“ATF”), which had developed the scenario from the ground up.  The cocaine did not exist.

Under federal law on conspiracy and attempt, the government could, and did, prosecute the crew as if fantasy had been reality.  Washington, the sole member to take his chances at trial, was convicted by a jury of two Hobbs Act robbery charges and two drug charges (18 U.S.C. § 1951(a) and 21 U.S.C. § 846), although he was acquitted on a gun charge.

Developed by the ATF in the 1980s to combat a rise in professional robbery crews targeting stash houses, reverse sting operations have grown increasingly controversial over the years, even as they have grown safer and more refined.  For one, they empower law enforcement to craft offenses out of whole cloth, often corresponding to statutory offense thresholds.  Here, the entirely fictitious 10 kilograms of cocaine triggered a very real 20-year mandatory minimum for Washington, contributing to a total sentence of 264 months in prison — far more than even the ringleader of the conspiracy received.  For another, and as Washington claimed on multiple occasions before the District Court — and now again on appeal — people of color are allegedly swept up in the stings in disproportionate numbers.

These elements of controversy are bound up in the three claims Washington now raises on appeal.  Two are constitutional claims: Washington challenges his conviction and sentence by arguing that the use of the statutory mandatory minimum term violated his rights to due process, and he also alleges that the attorney who represented him at trial rendered constitutionally ineffective assistance.  While stash-house reverse stings can raise constitutional concerns, the use of a mandatory minimum sentence on these particular facts did not deprive Washington of his right to due process.  And while this is the rare case where a claim of ineffective assistance of counsel was properly raised on direct appeal instead of through a collateral attack, Washington has not shown prejudice sufficient to call into doubt the integrity of his trial.  We thus conclude that both constitutional claims are without merit.

A lengthy and nuanced discussion by the majority follows, and largely concludes that the stash-house sting in this case was, in essence, "good enough for government work."  Judge McKee penned a lengthy partial dissent focused on sentencing issues that has a conclusion including these paragraphs:

This case is the latest illustration of why federal courts across the country continue to find the government’s reliance on phony stash-house sting operations disturbing.  As I have explained, these cases raise serious issues of fairness while destroying the fundamental relationship between culpability and punishment that is so important to sentencing.  The conduct being sanctioned is the direct result of the government’s initiative rather than the defendant’s.

I reiterate that it is exceedingly difficult to conclude that Congress ever considered that mandatory minimum sentences would apply here.  Nevertheless, it just may be that the ultimate systematic resolution of this very troublesome approach to sentencing will have to await clarification by Congress, the Sentencing Commission,or the U.S. Supreme Court.  Meanwhile, it is worth echoing my colleagues’ caution: The Government’s success today should not be interpreted as a clue that “all such prosecutions will share the same fate” in the future.

August 29, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

August 28, 2017

In latest speech, AG Sessions talks up the changed policies of the Trump Administration

Attorney General Jeff Sessions gave this speech today at a conference of the National Fraternal Order of Police.  Regular readers are familiar with various themes that have become common in the speeches of AG, but these excerpts still seemed worth spotlighting:

Several months ago now, we changed the charging policy for our federal prosecutors, trusting them once again and directing them to return to charging the most serious, readily provable offense.

In July, we reinstituted our equitable sharing program, ensuring that criminals will not be permitted to profit from their crimes.  As President Trump knows well, civil asset forfeiture is a key tool that helps law enforcement defund organized crime, take back ill-gotten gains, and prevent new crimes from being committed, and it weakens the criminals and the cartels.  Civil asset forfeiture takes the material support of the criminals and instead makes it the material support of law enforcement.  In departments across this country, funds that were once used to take lives are now being used to save lives.

Since these changes, we have seen a 23 percent increase in the number of criminals charged with unlawful possession of a firearm.  The Department has convicted more than 1,200 members of gangs, cartels, and their subsidiaries, since the beginning of the year....

Helping law enforcement do their jobs, helping the police get better, and celebrating the noble, honorable, essential and challenging work of our law enforcement communities will always be a top priority of President Trump and this Department of Justice.  We will always seek to affirm the critical role of policeoffers in our society and we will not participate in anything that would give comfort to radicals who promote agendas that preach hostility rather than respect for police.

President Trump is serious about this mission.  He is doing all he can to restore law and order and support our police across America.  And that is why, today, I am here to announce that President Trump is issuing an executive order that will make it easier to protect yourselves and your communities. H e is rescinding restrictions from the prior administration that limited your agencies' ability to get equipment through federal programs, including life saving gear like Kevlar vests and helmets and first responder and rescue equipment like what they’re using in Texas right now.

Some of these programs, like the Department of Defense's 1033 program that Congress signed into law more than 25 years ago, have recycled more than $5.4 billion in used gear and equipment that taxpayers had already purchased, and made it available for your agencies to repurpose it in the fight against terrorism, crime, and disaster relief. Equipment like helicopters and armored vehicles are also vitally important to emergency and disaster response efforts.

One sheriff told me earlier this year about how, due to the prior administration's restrictions, the federal government made his department return an armored vehicle that can change the dynamics of an active shooter situation.  These are the types of helmets and gear that stopped a bullet and saved the life of an officer during the Orlando nightclub shooting.  This is the type of equipment officers needed when they pursued and ultimately killed terrorists in San Bernardino.  Studies have shown this equipment reduces crime rates, reduces the number of assaults against police officers, and reduces the number of complaints against police officers.

Those restrictions went too far.  We will not put superficial concerns above public safety. All you need to do is turn on a tv right now to see that for Houstonians this isn’t about appearances, its about getting the job done and getting everyone to safety.

The executive order the President will sign today will ensure that you can get the lifesaving gear that you need to do your job and send a strong message that we will not allow criminal activity, violence, and lawlessness to become the new normal.  And we will save taxpayer money in the meantime.

August 28, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (11)

Lots of commentary and criticism in wake of Prez Trump's Arpaio pardon

There has been no shortage of commentary and criticism of Prez Trump's decision on Friday to make his first use of the clemency power a pardon for Joe Arpaio (basics here). Here is a not-quite-random, not-so-systematic sampling of stories and commentaries:

In accord with a lot of the commentary here, I am troubled by how Prez Trump first decided to use his historic clemency powers.  But, as this Guardian piece usefully highlights, many recent presidents have used their clemency authority in ways seemingly motivated unduly by political commitments rather than purely by concerns about justice and mercy.  I want to believe that the current President is capable and eager to have concerns about justice and mercy impact at least some of his future clemency decisions, but his track record on this front and others certainly does not inspire optimism.

August 28, 2017 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (35)

"Less Is More: How Reducing Probation Populations Can Improve Outcomes"

Download (3)The title of this post is the title of this notable new paper emerging from the Executive Session on Community Corrections at the Harvard Kennedy School.  Here is the paper's introduction:

This paper will argue that, similar to the growth in prisons that has resulted in our current state of mass incarceration, the tremendous growth in probation supervision in the United States over the past several decades should be reversed, and the entire system of probation significantly downsized.  Specifically, we argue here that while the number of people on probation supervision in the U.S. has declined over the past several years (as have the number of people incarcerated and crime rates), that decline should not only be sustained but significantly increased, with a goal of reducing the number of people under probation supervision by 50 percent over 10 years.  We then discuss New York City as an example of a jurisdiction that has successfully done this.

In many respects, the rationale for this argument mirrors the argument against mass incarceration.  In most jurisdictions, probation is a punitive system that attempts to elicit compliance from individuals primarily through the imposition of conditions, fines, and fees that in many cases cannot be met (Corbett, 2015; Klingele, 2013).  This is not only a poor use of scarce resources; it contributes to a revolving door in which individuals who cannot meet those obligations cycle back and forth between probation and incarceration without necessarily improving public safety.  In fact, the cycle of incarceration and supervision can actually threaten public safety, and it certainly has harmful and farreaching consequences for those who are caught up in it, including job loss, disconnection from family, and housing instability (Council of Economic Advisers, 2015).  Given this, along with national and local data and examples that clearly demonstrate that reducing “mass probation” can go hand in hand with a reduction in the number of people incarcerated and ongoing declines in national and local crime, it begs the question of why so many jurisdictions continue to promulgate this punitive approach.

Because probation is the most severely underfunded and the least politically powerful of all criminal justice agencies, there is no likelihood of any massive infusion of new resources into the field.  Thus, the limited resources saved from this downsizing may be used to invest in community-based programs that provide employment, substance abuse, and mental health treatment to the remaining population — those that pose the highest public safety risk — as a way to significantly reduce that risk and avoid unnecessary monitoring and supervision.  A portion of these savings should also substitute for the rampant use of probation fees used throughout the U.S. as a way to pay for a structurally underfunded system.  These fees are unjust, counter-productive, and antithetical to the legitimacy of any system of justice (Martin, Smith, and Still, 2017).

August 28, 2017 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (1)

Helpful new Sentencing Project fact sheet on "Private Prisons in the United States"

The fine folks at The Sentencing Project have this fine new two-page fact sheet providing state-by-state data on the use of private prisons.  Here is some of the text that accompanies the charts in the publication:

Private prisons in the United States incarcerated 126,272 people in 2015, representing 8% of the total state and federal prison population.  Since 2000, the number of people housed in private prisons has increased 45%.

States show significant variation in their use of private correctional facilities.  For example, New Mexico and Montana incarcerate over 40% of their prison populations in private facilities, while states such as Illinois and New York do not employ for-profit prisons.

Data compiled by the Bureau of Justice Statistics (BJS) show that in 2015, 28 states and the federal government incarcerated people in private facilities run by corporations including GEO Group, Core Civic (formerly Corrections Corporation of America), and Management and Training Corporation.

According to BJS data, 21 of the states with private prison contracts incarcerate more than 500 people in for-profit prisons.  Texas, the first state to adopt private prisons in 1985, incarcerated the largest number of people under state jurisdiction, 14,293.

Since 2000, the number of people in private prisons has increased 45%, compared to an overall rise in the prison population of 10%. In five states, the private prison population has increased 100% or more during this period.  The federal prison system experienced a 125% increase in use of private prisons since 2000 reaching 34,934 people in private facilities in 2015.

Despite the significant growth in private prisons since 2000, the number of people housed in these facilities has declined 8% since reaching a national peak population of 137,220 in 2012.  Since 2000 six states — Arkansas, Kentucky, Maine, Michigan, Utah and Wisconsin — have eliminated their use of private prisons due to concerns about safety and cost-cutting.  An additional six states saw reductions of 40% or more in the use of private prisons during this period.

August 28, 2017 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

August 27, 2017

SCOTUS fills out Fall docket with little prisoner lawsuit fee-award case

As reported here by Amy Howe via SCOTUSblog, the Supreme Court this past Friday issued an unusual mid-summer cert grant a full month before their usual late September "long conference."  Here are the basics:

[I]n a relatively unusual summer order, the justices [on August 25] added a new case, involving the interpretation of a federal law governing the award of attorney’s fees to prisoners who prevail in civil rights cases, to their docket for the fall.   [This] grant came in a case filed by an Illinois prisoner, Charles Murphy, who was awarded over $300,000 after he prevailed in a lawsuit alleging that corrections officers had badly beaten him, causing permanent damage to his eye.  A provision in the Prison Litigation Reform Act indicates that, when a prisoner like Murphy is awarded money in a civil rights lawsuit, “a portion of the judgment (not to exceed 25 percent) shall be applied to satisfy the amount of attorney’s fees awarded against the defendants.”  The dispute now before the Supreme Court centers on exactly what the phrase “not to exceed 25 percent” means: Does 25 percent of the money awarded to the prisoner have to go toward his attorney’s fees, before the defendants must also contribute to the fees, or can the district court require a smaller portion of the attorney’s fees to come out of the prisoner’s award?

In Murphy’s case, the district court awarded attorney’s fees of approximately $108,000. It ordered Murphy to pay 10 percent of his award — approximately $30,000 — to his attorney, with the roughly $78,000 remaining to come from the corrections officers. But on appeal, the U.S. Court of Appeals for the 7th Circuit reversed the district court’s ruling on the attorney’s fees award.  It interpreted the phrase “not to exceed 25 percent” to mean that 25 percent of the prisoner’s award was required to go to attorney’s fees; under this construction, the corrections officials would have to pitch in only if the prisoners’ attorneys were still owed money after that.  The court of appeals therefore ordered Murphy to contribute approximately $77,000 (rather than roughly $30,000) of his award to his attorneys; this left corrections officials on the hook for only approximately $31,000 (rather than the $78,000 that they owed under the district court’s order).

Murphy took his case to the Supreme Court, where he urged the justices to step in and resolve a conflict between the 7th Circuit’s interpretation and those of several other circuits that would give district courts discretion to decide how much of a prisoner’s award should go to his attorneys.  The 7th Circuit’s rule, he argued, “leaves prisoners whose constitutional rights have been violated with smaller net recoveries than Congress intended them to receive.”

Opposing review, the corrections officers ... effectively conceded that the courts of appeals are divided on how to interpret the phrase “not to exceed 25 percent.”  But, they emphasized, the conflict is not as widespread as Murphy suggests, because only two courts of appeals “have squarely held that the PLRA gives district courts discretion to choose any portion of the judgment up to 25% to apply to a fee award.”  And in any event, they added, the issue arises relatively rarely, because virtually no prisoners in PLRA cases are even represented by attorneys, much less prevail and receive money damages....

The [SCOTUS] calendar for October arguments is full, bolstered by two cases in which the justices are hearing oral arguments for the second time and two other cases — involving the Trump administration’s “travel ban” and a challenge to Wisconsin’s redistricting maps — that are being argued earlier than they might normally have been. But the court still has 12 days of arguments (for a total of up to 24 arguments) to fill in the November and December sittings, with only 17 hours’ worth of arguments before today’s grant.  [This] grant should allow Murphy’s case to be briefed in time for oral argument in December, bringing the total of November and December arguments to 18.

Though I suppose it is useful for SCOTUS to settle a circuit split on this little fee issue, I find it more than a bit intriguing and ultimately frustrating that a rare dispute over how much a prisoner must pay his lawyer is now going to get more SCOTUS attention than far-more-common disputes over, say, how much time a juve offender can gets under Graham and Miller Eighth Amendment precedents or whether and how guideline enhancements based on acquitted conduct may be problematic in some cases given Apprendi/Booker Sixth Amendment jurisprudence.  It seems a clear circuit split on a little issue that impacts a handful of prisoners still has a better chance of garnering SCOTUS review than challenging sentencing issues that can impact thousands of cases every year.

August 27, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

"The Use and Abuse of Mutual-Support Programs in Drug Courts"

The title of this post is the title of this notable new article authored by Sara Gordon now available via SSRN.  Here is the abstract:

There is a large gap between what we know about the disease of addiction and its appropriate treatment, and the treatment received by individuals who are ordered into treatment as a condition of participation in drug court.  Most medical professionals are not appropriately trained about addiction and most addiction treatment providers do not have the education and training necessary to provide appropriate evidence-based services to individuals who are referred by drug courts for addiction treatment.

This disconnect between our understanding of addiction and available addiction treatment has wide reaching impact for individuals who attempt to receive medical care for addiction in this country, as well as for those individuals who are compelled by a drug court to receive that treatment.  Instead of receiving evidence-based treatment, most drug court participants are referred to mutual-support groups and programs based largely or entirely on 12-step principles.  Mutual-support groups, while well-intentioned and helpful as a supplement to evidence-based addiction treatment, are not a substitute for scientifically valid addiction treatment and should not constitute the primary form of medical assistance received by drug court participants.

This Article argues that drug and other specialty courts can be part of the transformation of the public perception of addiction, as well as the integration of addiction treatment into mainstream medicine by incorporating and endorsing evidence-based strategies for the treatment of addiction, including psychosocial and pharmacological treatments.  Moreover, by adopting these treatments more readily and providing more opportunities for drug court participants to receive evidence-based treatment, drug courts can dramatically improve treatment outcomes for participants.

August 27, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Will deadly protests impact high-profile sentencing in India? Should they?

A classic hypothetical question for hard-core fans of a strictly utilitarian approach to punishment is whether they should and would be inclined to go easy or even release a guilty criminal in order to avoid possible harms being threatened by an angry mob.  (The even harder variation is whether they would punish an innocent person to mollify a mob.)  I bring this up because, as reported in this Reuters article, concerns about mob violence are now not hypothetical in the northern part of India.  The article is headlined "After deadly protests, Indian states in lockdown for 'godman's' rape sentencing," and here are excerpts:

India is deploying thousands of riot police and shutting down internet services in two northern states, as it prepares for the sentencing on Monday of a self-styled ’godman’ whose followers went on the rampage after he was convicted of rape on Friday.

Gurmeet Ram Rahim Singh’s cult Dera Sacha Sauda has a vast rural following in Punjab and Haryana states, where frenzied mobs burned down gas stations and train stations and torched vehicles after a local court found him guilty of raping two women in a 2002 case.  At least 38 people were killed and more than 200 injured in the violence in Haryana, officials said, drawing sharp criticism for the state government run by Prime Minister Narendra Modi’s Bharatiya Janata Party (BJP).

The case has also highlighted the Indian heartland’s fascination with spiritual gurus, who enjoy immense political clout for their ability to mobilize millions of followers frustrated by the shortcomings of the state.  Security forces have cordoned off a jail in Rohtak city, 70 km (44 miles) from New Delhi, where Singh - also known as the guru of bling for the clothes he wears in the movies he has starred in - is being held.

The judge who convicted Singh will hold a special hearing inside the prison in Rohtak around 2.30 pm local time (0900 GMT) on Monday to decide the punishment, in a move that officials hope will prevent his followers from gathering in the streets like they did on Friday. Singh faces a minimum of seven years in prison.

The town of Sirsa, home to Dera’s headquarters, is already under lockdown, BS Sandhu, Haryana’s police chief, told Reuters. School and colleges have been ordered shut, the government said....

In godman Singh’s two films, “Messenger of God” and its sequel, there are sequences in which he fights off villains and tosses burning motorbikes into the air. In his spiritual avatar, Singh dresses in plain white traditional clothes, giving sermons or planting trees. In the movies he dons bejeweled costumes, rides motorbikes and sends bad guys flying.

The Haryana government has faced severe criticism from opposition Congress and a state court for failing to stop the rioting and vandalism. Singh, whose verified Twitter profile calls him a saint, philanthropist, sportsman, actor, singer, movie director, writer, lyricists, and autobiographer, has been photographed with senior BJP leaders including Haryana chief minister Manohar Lal Khattar....

Singh's conviction in a rape case is the latest in a series of cases involving spiritual leaders who have been accused of sexually abusing followers, amassing untaxed money and finding favor with politicians. Besides the rape charges, he is also under investigation over allegations that he convinced 400 of his male followers to undergo castration, allegations he denies.

August 27, 2017 in Purposes of Punishment and Sentencing, Sentencing around the world | Permalink | Comments (3)