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September 9, 2017

"America must listen to its prisoners before we make a major mistake"

The title of this post is the title of this extended Washington Post op-ed authored by Heather Ann Thompson. Here is how it starts and ends:  

Forty-six years ago, on Sept. 9, 1971, almost 1,300 men erupted in one of the 20th century’s most dramatic prison protests. Their goal? To be treated as human beings even as they served their time in one of New York state’s most notorious penal institutions, the Attica Correctional Facility.  These were men being fed on 63 cents a day, treated brutally by prison doctors and forced to labor whether they were sick or well.  They finally had reached the breaking point.

One year ago, on Sept. 9, 2016, thousands of prisoners, this time men and women from across the United States, marked the anniversary of Attica by engaging in another dramatic series of protests for the very same reasons that Attica’s incarcerated had rebelled in 1971.  Conditions were terrible.  Overcrowding was severe, food was maggot-ridden, and prisoners were still being forced to labor....

On this 46th anniversary of that day when almost 1300 men stood together to tell the nation of the horrors of their confinement at Attica, and this first anniversary of that day when thousands of men and women again stood together, at equally enormous risk, to remind us all that conditions are still brutal in our nation’s penal institutions, we must listen to what they were trying to tell us: Everyone behind bars remains a human being and, therefore, no crime committed, nor punishment rendered, justifies abuse.

And should we forget this basic truth — one that was understood, accepted and stands as the very foundation of the Universal Declaration of Human Rights adopted by the United Nations in 1948 — the men and women who endure our nation’s penal facilities will, inevitably, remind us again.

As those who struggled for better conditions and suffered so much in Upstate New York in 1971 oft said, “Attica is all of us.” Indeed it is.

September 9, 2017 in Prisons and prisoners | Permalink | Comments (1)

September 8, 2017

Highlighting through St. Louis the enduring challenges of battling city crime with federal emphasis

Mark Obbie has this terrific lengthy new piece in Politico Magazine with full headline that captures its key themes: "Why Jeff Sessions’ Recycled Crime-Fighting Strategy Is Doomed to Fail: Funneling more gun criminals into federal prison won't reduce homicides. Just look at St. Louis." The article merits a full read, and here are its opening passages:

Newly minted Attorney General Jeff Sessions was in St. Louis, the latest stop on his tour to promote his muscular solution to what he called the “dangerous new trend” of the rising national violent crime rate.  Addressing a crowd of more than 200 federal and local law enforcement officials at the city’s towering federal courthouse in late March, he vowed to “use every lawful tool we have to get the most dangerous offenders off America’s streets.”

The Trump Justice Department has pushed a variety of strategies for reducing violent crime.  But the tool that Sessions prefers, the one he calls the “excellent model,” is to steer more gun-crime cases to federal court, where offenders face an average of six years in prison, compared with the lighter punishments that can result from state convictions — in Missouri, for instance, gun offenders charged under state laws generally get probation.  Sessions has instructed his U.S. attorneys to step up their gun-case loads, and they are heeding his mandate: In the second quarter of this year, federal firearms prosecutions jumped 23 percent over the same period in 2016.

In his St. Louis speech, Sessions praised the city’s U.S. attorney’s office for its aggressive pursuit of gun-law violators, framing its work as the first half of a tidy formula. “The more of them we put in jail,” he said, “the fewer murders we will have.”

But Sessions is dramatically overselling the effectiveness of his prosecution-heavy prescription, those who study gun violence say.  Researchers, in fact, long ago concluded that the long prison sentences and elevated incarceration rates that result from increasing federal prosecutions have scant influence on violent crime rates.  And St. Louis is a signal example of why Sessions’ strategy does not work as he promises.

No other city has already tried harder and longer to do exactly what Sessions is pushing for nationwide.  Since the 1990s, the St. Louis-based Eastern District of Missouri has remained in the top 10 federal court districts for per capita gun prosecution rates, according to data from Syracuse University’s Transactional Records Access Clearinghouse (TRAC).  In more recent years, the St. Louis office has only increased its intake of gun cases, leading the nation in 2016.

At the same time, St. Louis’ rates of homicide and serious crimes of all types are the worst in the country, and have been stuck at or near the top of that dubious list for at least 20 years.  The city recorded 188 homicides in each of the past two years — a two-decade high.  During the first six months of 2017, murders kept pace with those brutal levels. Nonfatal shootings were up an alarming 22 percent.

If St. Louis shows why Sessions’ approach to gun violence is destined to fail, what is a more effective role for federal authorities to play in reducing violent crime?  Public safety scholars say that it starts with recognizing that no two cities’ crime problems are exactly alike.  The next step is to create a menu of interventions tailored to meet local needs — and support them with reliable funding.

September 8, 2017 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (1)

September 7, 2017

Notable reporting on a plea process after wrongful convictions

A help helpful readers have flag for me the latest work from ProPublica and The Atlantic examining how two wrongfully convicted men were treated after being proven innocent by DNA. The full headlines of the main piece and a companion provide a summary of a remarkable tale:

September 7, 2017 in Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

"Drug War Reform: Criminal Justice, Recovery, and Holistic Community Alternatives"

The title of this post is the title of this article recently posted to SSRN authored by Joshua Horton. Here is its abstract:

This article investigates the issues and possible societal solutions to the Drug War, Opiate Epidemic, Mass Incarceration and other collateral consequences of current policies in three distinct parts. First, it discusses the DeFelonization of drug possession and the ramifications this would have nationally. Next, it addresses the influx of drug users into the community that are currently receiving little to no rehabilitation behind bars. This country will need to find a revenue source to fund a massive rehabilitation effort. It will come from marijuana legalization. And lastly, I investigate an up and coming approach to recovery called Recovery Community Organizations (RCO's). These entities incorporate an innovative, holistic bottom up approach, as opposed to the current top-down, massive, paternalistic governmental and criminal justice approach.

September 7, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Just how should California implement Prop 57's call for prison releases?

The question in the title of this post is prompted by this local article headlined "Prop 57: Debate rages on about which inmates should be released early." Here are excerpts:

Ten months after California voters approved a proposition allowing thousands of prison inmates to apply for early release, a debate is still raging over who ought to be freed.

Proposition 57 left it to prison officials to clearly identify which crimes deemed nonviolent would qualify and how an inmate’s criminal history would affect eligibility. The public could weigh in during a 45-day comment period this summer — and boy, did they. More than 8,500 people threw in their two cents, in writing and at a public hearing in Sacramento last week. Now, the California Department of Corrections and Rehabilitation is sorting through bulging email boxes and stacks of letters from crime victims, inmates, prosecutors and reformers.

Meanwhile, under emergency regulations, prison officials have already notified prosecutors across California of more than 1,800 inmates who have applied for early parole. No figures are available until later this month on the number of inmates whose applications have been denied, approved or have actually been released. But a snapshot of the situation in two urban counties in Northern California shows relatively few people are being granted early parole, though it is impossible to tell if the trend will continue....

Ken Scheidegger, legal director of the Sacramento-based Criminal Justice Foundation, ... opposed Proposition 57 and is concerned about the early releases. “People got the idea a few years ago that prisons were full of harmless people,” Scheidegger said. “That is a widespread popular misconception.”

But proponents note that Proposition 57 was the third time since 2012 that voters overwhelmingly opted to ease California’s tough-on-crime laws to enhance rehabilitation, stop the revolving door of crime and prevent federal courts from indiscriminately releasing inmates to reduce prison crowding. “Prop. 57 is not a ‘get out of jail free’ card,” said Benee Vejar, an organizer with the civil rights group Silicon Valley De-Bug. “It’s asking for an early parole hearing and another chance.”...

The Department of Corrections and Rehabilitation has until Sept. 20th to develop the regulations, but it can ask for a 90-day extension. The debate over the Proposition 57 regulations is being fought along similar battle lines as the fight over the initiative itself.

Advocates, including Human Rights Watch, want prison officials to consider as many people as possible for early release. Law enforcement officials want to restrict who is eligible and change how the decisions are made. Both sides are calling for more rehabilitation programs. The state recently boosted the prison system’s rehab budget by $137 million. “We cannot repair the criminal justice system on the cheap,” said Rosen, the Santa Clara County district attorney. “If we want to improve the outcomes from prison, then we will need to change the experience of being in prison.”

The ... opponents’ chief complaint is that the initiative promised voters that only nonviolent inmates would be eligible for release. But under the existing regulations, certain violent offenders are eligible once they have completed their prison term for the violent felony, but are still serving time for a nonviolent felony they were also convicted of. The Legislative Analyst’s Office also raised questions about the provision. On the other hand, Proponents want to expand the pool of inmates. Currently, about 4,000 inmates with third strikes whose last offense was nonviolent are barred from applying for early parole. Yet according to the CDCR’s own public safety risk evaluations, nonviolent third-strikers are more than three times more likely to qualify as low risk than the currently eligible prisoners.

But opponents claim crime will rise under Proposition 57, a warning they have sounded since 2011 when Gov. Jerry Brown and the Legislature began scaling back the emphasis on incarceration in response to a federal court order about prison crowding and inhumane health care. Opponents point to the fact that violent crime in 2016 rose in the state — by 4.1 percent — unlike in the country as a whole. However, proponents note California’s violent crime rate remains comparable to levels seen in the late 1960s. And property crime was down 2.9 percent and remained lower than it was in 2010, before the reforms began....

Law enforcement officials also complain about the process. Among their concerns: Early parole applications are subject to a paper review, rather than a parole hearing; prosecutors only have 30 days to prepare a recommendation; only inmates may appeal the board’s decision; and police are cut out entirely. “My rank and file are on the front lines — they’re the ones who have to encounter these individuals once they’re on the streets,” San Jose police Chief Eddie Garcia said.

September 7, 2017 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

September 6, 2017

Two of the latest remarkable variations on sex offender panics

These two headlines and stories about concerns about sex offenders caught my eye this afternoon:

I find both of these article both stunning and sad, and the bill discussed in the second article would seem, if I understand it right, to raise some serious constitutional issues.

September 6, 2017 in Collateral consequences, Sex Offender Sentencing | Permalink | Comments (8)

"The History of the Original United States Sentencing Commission, 1985–1987"

the title of this post is the title of this exciting new article about a (never really old) piece of sentencing legal history that I find fascinating. This lengthy article is authored by Brent Newton and Dawinder Sidhu, and here is the abstract:

An eighteen-month period from the fall of 1985 to the spring of 1987 witnessed the most significant change to the federal criminal justice system in American history.  In those eighteen months, the United States Sentencing Commission, a new and novel independent agency in the federal judicial branch, developed sentencing guidelines for all federal judges during the same period when Congress was enacting new mandatory minimum statutory penalties that dramatically increased existing penalties for drug trafficking and firearms offenses.

This Article describes this founding era of structured federal sentencing, beginning with the Commission’s first meeting and ending with the transmittal of the initial Guidelines Manual to Congress on April 13, 1987, for its 180-day review period.  As the guidelines remain the “lodestone” of federal sentencing thirty years later, and as improving the criminal justice system continues to be an important national bipartisan aspiration, a thorough exploration of the history of the original Commission is both timely and important.

Parts II and III of this Article discuss the historical context in which the Commission was created, the key players (Commissioners and staff) during the Commission’s first eighteen months, and the initial policy decisions of the original Commission that are reflected in the Guidelines Manual and that still largely govern federal sentencing today, albeit in an “advisory” rather than a “mandatory” guidelines system. Finally, Part V offers some conclusions about the work of the original Commission.

September 6, 2017 in Booker and Fanfan Commentary, Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (2)

Encouraging new Brennan Center data on 2017 crime trends ... let the spinning begin

The Brennan Center for Justice has this notable new report titled simply "Crime in 2017: A Preliminary Analysis," and its first section starts this way: 

Based on new data collected from police departments in the 30 largest cities, this report finds that all measures of crime — overall crime, violent crime, and murder — are projected to decline in 2017. Indicators show that 2017 will have the second lowest rates of crime and violent crime since 1990.

These findings directly undercut any claim that the nation is experiencing a crime wave. In 2015 and 2016, overall crime rates remained stable, while murder and violent crime rose slightly. Now, in 2017, crime and murder are projected to decline again. This report’s main findings are explained below, and detailed in Figure 1, and in Tables 1 and 2:

• The overall crime rate in 2017 is projected to decrease slightly, by 1.8 percent. If this estimate holds, as it has in past analyses, 2017 will have the second lowest crime rate since 1990.

• The violent crime rate is projected to decrease slightly, by 0.6 percent, essentially remaining stable. This result is driven primarily by stabilization in Chicago and declines in Washington, D.C., two large cities that experienced increases in violence in recent years. The violent crime rate for this year is projected to be the second lowest since 1990 — about one percent above 2014’s violent crime rate.

• The 2017 murder rate is projected to be 2.5 percent lower than last year.  This year’s decline is driven primarily by decreases in Detroit (down 25.6 percent), Houston (down 20.5 percent), and New York (down 19.1 percent).  Chicago’s murder rate is also projected to fall, by 2.4 percent.  The 2017 murder rate is expected to be on par with that of 2009, well at the bottom of the historic post-1990 decline, yet still higher than the lowest recorded rate in 2013.  Notably, more than half the murder increase from 2014 to 2017 (55.6 percent) is attributable to two cities — Chicago and Baltimore.  This year’s decrease could indicate that the increases in 2015 and 2016 were short-term fluctuations in a longer-term downward trend.

• While crime is down this year, some cities are projected to experience localized increases. For example, Charlotte’s murder rate doubled in the first six months of 2017 relative to last year.

Before even starting to spin this new data, it bears emphasis that there could be developments in the last four months of 2017 that alter this prediction that crime will decline for the year.  But assuming these encouraging new crime numbers hold upon further developments and analysis, it will be interesting to watch different advocates making different claims about what a return to declining crimes means. I would certainly expect Prez Trump and AG Sessions to assert that their reversal of a variety of Obama era policies and practices is already having a positive impact, while advocates for progressive "smart on crime" reforms will surely claim that this data shows we can and should be able to continue to reduce prison populations and reduce crime at the same time.

Critically, whatever gets spun, these data are a cause for celebration and everyone should be rooting for the numbers to continue to trend in a positive direction in the months and years ahead.

September 6, 2017 in National and State Crime Data, Offense Characteristics | Permalink | Comments (7)

September 5, 2017

A deep look at "tough on crime" responses to the opioid epidemic

German Lopez has this lengthy important new Vox piece under the headlined "The new war on drugs: Not every state is responding to the opioid epidemic with just public health policies." I recommend the piece in full, and this excerpt highlights its themes:

There has been much discussion of criminal justice reform in the past several years. And there has been a lot of talk about treating the opioid epidemic — the deadliest overdose crisis in US history — as a public health, not criminal justice, issue, unlike past drug crises. The cliché about the crisis, said by both Democrats and Republicans, is that “we can’t arrest our way out of the problem.”

Yet the rhetoric doesn’t tell the whole story. In my own investigation, I found at least 13 states, including Kentucky, that passed laws in recent years that stiffened penalties for opioids painkillers, heroin, or fentanyl — largely in response to the epidemic.  In sharp contrast to all the talk about criminal justice reform and public health, these laws risk sending even low-level, nonviolent drug offenders — many of whom are addicted to drugs and need help for that addiction — to prison for years or decades.

The facts show that the conventional narrative about the opioid epidemic and criminal justice reform is incomplete. Most states — including many of the states I found that passed new “tough on crime” laws in response to the opioid epidemic — have passed criminal justice reform at some level in the past several years.  And the rhetoric about drugs has undeniably changed a lot in recent years across both political parties.

But as the opioid epidemic continues to kill tens of thousands of people in the US each year, many state lawmakers have gone back to the old criminal justice playbook to fight the crisis — even as the empirical evidence remains clear that tougher prison sentences are not an effective means to stopping the epidemic.  The new laws are just one example.  Several states have also dusted off old laws to lock up more opioid users and dealers.

And that shows that for all the talk about reform, America’s instincts for the “tough on crime” approach are still very much here.

September 5, 2017 in Drug Offense Sentencing, Offense Characteristics, Who Sentences? | Permalink | Comments (1)

US Sentencing Commission releases big new analysis of Prez Obama's 2014 Clemency Initiative

I am excited to see that the US Sentencing Commission has this morning released this big new report titled simply "An Analysis of the Implementation of the 2014 Clemency Initiative." I hope to find the time in the coming days to dig into many of the report's particulars; for now, I can just reprint the text of this USSC overview page about the report and add a few comments:

Report Summary

This report analyzes the sentence commutations granted under the 2014 Clemency Initiative.  It provides data concerning the offenders who received a sentence commutation under the initiative and the offenses for which they were incarcerated.  It examines the extent of the sentence reductions resulting from the commutations and the conditions placed on commutations.  It also provides an analysis of the extent to which these offenders appear to have met the announced criteria for the initiative.  Finally, it provides an analysis of the number of offenders incarcerated at the time the initiative was announced who appear to have met the eligibility criteria for the initiative and the number of those offenders who received a sentence commutation.

Key Findings

The key findings of this report are:

  • President Obama made 1,928 grants of clemency during his presidency.  Of them, 1,716 were commutations of sentence, more commutations than any other President has granted.

  • Of the 1,928 grants of clemency that President Obama made, 1,696 were sentence commutations under the 2014 Clemency Initiative.

  • The commutations in sentence granted through the Clemency Initiative resulted in an average sentence reduction of 39.0 percent, or approximately 140 months.

  • Of the 1,696 offenders who received a commuted sentence under the Clemency Initiative, 86 (5.1%) met all the announced Clemency Initiative factors for consideration.

  • On April 24, 2014, there were 1,025 drug trafficking offenders incarcerated in the Federal Bureau of Prisons who appeared to meet all the announced Clemency Initiative factors.  Of them, 54 (5.3%) received clemency from President Obama.

  • By January 19, 2017, there were 2,687 drug trafficking offenders who had been incarcerated in the Federal Bureau of Prisons when the Clemency Initiative was announced and who appeared to meet all the announced Clemency Initiative factors. Of them, 92 (3.4%) received clemency from President Obama.

Back in 2014 when the clemency initiative was announced and certain criteria emphasized (basics here), I had an inkling that the criteria would end up both over-inclusive and under-inclusive. I figured Prez Obama would ultimately not want to grant clemency to everyone who met the criteria announced and also would want to grant clemency to some who did not meet all the criteria. That said, I am still surprised that only 5% of those prisoners who got clemency meet all the criteria and that only about 5% of those prisoners who met all the criteria get clemency. (Based on a quick scan of the USSC report, it seems the vast majority of those who got clemency had some criminal history, which put most of the recipients outside the stated DOJ criteria.)

These additional insights and data points from the USSC report highlight what really seemed to move a clemency applicant toward the front of the line:

A review of the offenders granted clemency under the Initiative shows that at some point the Clemency Initiative was limited to drug trafficking offenders, as all the offenders who received commutations under the Initiative had committed a drug trafficking offense.  This focus was not identified when the Initiative was announced and no formal public announcement was made later that the Initiative had been limited to drug trafficking offenders....

Almost all Clemency Initiative offenders (95.3%) had been convicted of an offense carrying a mandatory minimum penalty.  Most (89.7%) were charged in such a way that the mandatory minimum penalty that applied in the case was ten years or longer.  Indeed, most of the Clemency Initiative offenders (88.2%) received a sentence of 20 years or longer, or life imprisonment.

In the end, then, it appears the 2014 Clemency Initiative turned out to be almost exclusively about identifying and reducing some sentences of some federal drug offenders subject to long mandatory prison terms. Somewhat disappointingly, this USSC report does not appear to speak to whether and how offenders who received clemency were distinct from the general federal prison population in case processing terms. My own rough research suggests that a great disproportion of those who got clemency were subject to extreme mandatory minimums because they opted to put the government to its burden of proof at trial rather than accept a plea deal. Also, if the goal ultimately was to remedy the worst applications of mandatory minimum sentences, it is not surprising that a lot of clemency recipients had some criminal history that would serve to both enhance the applicable mandatory minimum AND make an otherwise lower-level offender not eligible for statutory safety-valve relief from the mandatory term.

September 5, 2017 in Clemency and Pardons, Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Lamenting a "liberal tilt in criminology"

John Paul Wright and Matt DeLisi have this provocative essay in the Summer 2017 issue of City Journal under the full headline "What Criminologists Don’t Say, and Why: Monopolized by the Left, academic research on crime gets almost everything wrong." Here are a few excerpts from what merits a full read by all criminal justice academics (and others):

Evidence of the liberal tilt in criminology is widespread.  Surveys show a 30:1 ratio of liberals to conservatives within the field, a spread comparable with that in other social sciences.  The largest group of criminologists self-identify as radical or “critical.”  These designations include many leftist intellectual orientations, from radical feminism to Marxism to postmodernism.  Themes of injustice, oppression, disparity, marginalization, economic and social justice, racial discrimination, and state-sanctioned violence dominate criminological teaching and scholarship, as represented in books with titles like Search and Destroy: African American Males in the Criminal Justice System, The New Jim Crow: Mass Incarceration in the Age of Colorblindness, and Imprisoning Communities: How Mass Incarceration Makes Disadvantaged Neighborhoods Worse....

Walter Miller, one of the few mid-twentieth-century criminologists whose work was unapologetically conservative, suggested that ideology can turn “plausibility into ironclad certainty . . . conditional belief into ardent conviction . . . and reasoned advocate into the implacable zealot.”  When shared beliefs take hold, as they often do in the academic bubble in which most criminologists live, ideological assumptions about crime and criminals can “take the form of the sacred and inviolable dogma of the one true faith, the questioning of which is heresy, and the opposing of which is profoundly evil.”

Miller’s observations have proved prophetic.  Led by the work of Jonathan Haidt, a growing number of scholars now acknowledge that a lack of ideological diversity in the social sciences skews research in favor of leftist claims, which become the guiding principles of many fields, challenged only at the risk of harming one’s career.  Liberal assumptions go unchecked and tendentious claims of evidence become fact, while countervailing evidence doesn’t get published or faces much more rigorous scrutiny than the assertions that it challenges.

Liberal political values can shape and distort the research that criminologists do and the public positions that they take. Lee Ellis and Anthony Walsh surveyed several hundred criminologists and found that self-reported ideological perspective was strongly associated with the type of theory that the scholar most often advocated, with liberal criminologists primarily supporting theories that locate the causes of crime in social and economic deprivation.  Coauthor John Wright has recently collected data showing that political ideology predicts almost perfectly the policy positions of criminologists.  On issues ranging from gun control to capital punishment to three-strikes laws, liberal criminologists showed almost no variation in their beliefs. (Needless to say, they dislike guns, oppose punitive sentences, and vehemently object to the death penalty.)

 

Because I am a law professor and not a criminologist, I cannot speak directly to biases and their impactsin the ranks of criminologists.  But I think it notable that the authors note that other social sciences — and here I would assume law is included — also attract so many more liberals relative to conservatives.  I fear that, in any and every academic setting, this dramatic kind of political imbalance can and will always risk badly distorting the research, teaching and service of an academic department.

September 5, 2017 in Who Sentences? | Permalink | Comments (20)

Split Tenth Circuit panel finds mandatory five-year prison term for violation of supervised release itself violates Fifth and Sixth Amendments

I just saw that an interesting and  important constitutional procedure opinion was handed down by the Tenth Circuit last week in US v. Haymond, No. 16-5156 (10th Cir. Aug 31, 2017) (available here).  Here is how the panel's majority opinion gets started and some of the opinion's substantive analysis:

The district court revoked Andre Ralph Haymond’s supervised release based in part on a finding that Haymond knowingly possessed thirteen images of child pornography. The district court imposed the mandatory minimum sentence required by 18 U.S.C. § 3583(k). Haymond appeals and argues that the evidence was insufficient to support a finding by a preponderance of the evidence that he possessed child pornography, and that 18 U.S.C. § 3583(k) is unconstitutional because it violates his right to due process.

We conclude that the evidence was sufficient to support the district court’s finding that Haymond violated the conditions of his supervised release, but we agree that 18 U.S.C. § 3583(k) is unconstitutional because it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and it imposes heightened punishment on sex offenders based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt. Thus, we affirm the district court’s revocation of Haymond’s supervised release, but we vacate Haymond’s sentence and remand for resentencing....

We conclude that 18 U.S.C. § 3583(k) violates the Fifth and Sixth Amendments because (1) it strips the sentencing judge of discretion to impose punishment within the statutorily prescribed range, and (2) it imposes heightened punishment on sex offenders expressly based, not on their original crimes of conviction, but on new conduct for which they have not been convicted by a jury beyond a reasonable doubt and for which they may be separately charged, convicted, and punished....

By requiring a mandatory term of reimprisonment, 18 U.S.C. § 3583(k) increases the minimum sentence to which a defendant may be subjected. For example, when Haymond was originally convicted by a jury, the sentencing judge was authorized to impose a term of imprisonment between zero and ten years.  See 18 U.S.C. § 2252(b)(2). After the judge found, by a preponderance of the evidence, however, that Haymond had violated a particular condition of his supervised release, the mandatory provision in § 3583(k) required that Haymond be sentenced to a term of reincarceration of at least five years, up to a maximum term of life. This unquestionably increased the mandatory minimum sentence of incarceration to which he was exposed from no years to five years, yet the jury did not make the factual finding required to change his statutorily prescribed sentencing range. Instead, that finding was made by a judge by only a preponderance of the evidence. This violates the Sixth Amendment....

In Johnson v. United States, 529 U.S. 694 (2000), the Supreme Court made clear that, in order to avoid serious constitutional concerns, revocation of supervised release must be viewed as punishment for the original crime of conviction, not as punishment for the violation of the conditions of supervised release....

Regardless of the nature or severity of the defendant’s original crime of conviction, § 3583(k) imposes a mandatory minimum five-year term of imprisonment for only those specific offenses enumerated, while all other violations are subject to the maximum terms set in § 3583(e)(3). By separating these crimes from other violations, § 3583(k) imposes a heightened penalty that must be viewed, at least in part, as punishment for the subsequent conduct — conduct for which the defendant has not been tried by a jury or found guilty beyond a reasonable doubt.  This, the Court has said, is not permitted. 

To be sure, the sentencing judge can and, according to the Sentencing Guidelines, should consider the severity of the conduct by which a defendant violated the conditions of his or her supervised release.  A more serious violation might well recommend a longer term of reimprisonment.  But, if we wish to maintain the premise that revocation of supervised release is a punishment for the original crime of conviction, Congress must set the authorized term of reimprisonment based on the severity of that original crime.

Notably, Judge Kelly dissents in part because he is (reasonably) concerned that the majority's reasoning might impact any and all judicial fact-finding supporting the revocation of supervised release:

Were the court correct [in its constitutional analysis], the problem it identifies seems like it would be true of all revocation proceedings: if a defendant is sentenced to any term of supervised release, the fact that the release can then be revoked and the defendant be sent back to prison for an additional term means that “the penalty to which a defendant may be subjected” has been increased based on facts not found by a jury. Id. (emphasis added).

In other words, unless either (a) all revocation proceedings must empanel juries for fact-finding (which the Supreme Court, with good reason, has told us is not the case) or (b) the revocation proceeding is treated as a new criminal prosecution (which the Supreme Court also has told us is not the case), it is hard to understand why under current precedent Booker would apply but Apprendi and Alleyne would not. While postrevocation penalties might be considered attributable to the original conviction, the revocation proceeding is neither part of that criminal prosecution nor is it a new criminal prosecution. See Johnson, 529 U.S. at 700....

[According to the majority], the distinction, apparently, is that the terms of revocation differ based on what kind of new crime the defendant committed. But I see no reason why Congress cannot make that distinction. As the Sentencing Guidelines explain, under the “breach of trust” theory applicable to the revocation of supervised release, “the nature of the conduct leading to the revocation [can] be considered in measuring the extent of the breach of trust.” U.S. Sentencing Guidelines Manual § 7A3(b) (2016). In my view, Congress can determine that the commission of certain crimes constitutes a more serious breach of trust warranting a longer term of revocation. Doing so does not thereby make the revocation proceeding a new criminal prosecution....

Ultimately, we should not jump ahead of the Supreme Court when it has already spoken on this issue. Any tension between the supervised release scheme approved in Johnson and the rationale of the Apprendi / Booker line of cases is for the Supreme Court itself to resolve.

Ever since the Supreme Court got serious about applying its Apprendi doctrine to various sentencing determinations in cases like Blakely and Booker, I have thought the judicial fact-finding that takes place in federal supervised release proceedings were on constitutionally shaky grounds.  Or, to parrot Judge Kelly's final statment, I have long believed that there is significant tension between the supervised release scheme approved in Johnson and the rationale of the Apprendi / Booker line of cases.  But, in various settings, various lower federal courts have found various ways to uphold the judicial fact-finding involved in supervised release revocations — revocations that result in a significant number of federal defendants getting sent back to prison.  (This 2010 USSC report found that roughly 1/3 of all released federal prisoners get revoked and sent back to prison, and that 6% of the federal prison population are serving revocation terms.)

It will be very interest to watch if the Justice Department seeks en banc or SCOTUS review of this Tenth Circuit ruling.  I hope they will, in part because this case seems like it might just get SCOTUS to finally take a look at what its modern Fifth and Sixth Amendment doctrines should mean for supervised release revocation proceedings.

September 5, 2017 in Blakely Commentary and News, Booker and Fanfan Commentary, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

September 4, 2017

"The Racial Politics of Mass Incarceration"

The title of this post is the title of this notable paper authored by John Clegg and Adaner Usmani recently posted to SSRN.  Here is the abstract:

Dominant accounts of America's punitive turn assume that black elected officials and their constituents resisted higher levels of imprisonment and policing.  We gather new data and find little support for this view.  Panel regressions and an analysis of federally-mandated redistricting suggest that black elected officials had a punitive impact on imprisonment and policing.  We corroborate this with public opinion and legislative data. Pooling 300,000 respondents to polls between 1955 and 2014, we find that blacks became substantially more punitive over this period, and were consistently more fearful of crime than whites.

The punitive impact of black elected officials at the state and federal level was concentrated at the height of public punitiveness.  In short, the racial politics of punishment are more complex than the conventional view allows.  We find evidence that black elected officials and the black public were more likely than whites to support non-punitive policies, but conclude that they were constrained by the context in which they sought remedies from crime.

September 4, 2017 in Race, Class, and Gender, Who Sentences? | Permalink | Comments (3)

September 3, 2017

A long-weekend review of some marijuana reform news and notes

A long weekend seems to provide a good excuse to review some recent posts of note from Marijuana Law, Policy & Reform. So here goes:

September 3, 2017 in Marijuana Legalization in the States, Pot Prohibition Issues, Preparing for pot professing | Permalink | Comments (3)

Ohio Gov delays multiple executions while denying clemency for double murderer slated to die later this month

As noted and lamented in this recent Fair Punishment Project report, "Prisoners on Ohio’s Execution List Defined by Intellectual Impairment, Mental Illness, Trauma, and Young Age," as of the end of August 2017, Ohio had scheduled 26 executions to take place between now and 2020.  But as of the start of September 2017, thanks to the clemency/reprieve powers of Ohio Gov John Kasich and as detailed here, Ohio has only 18 executions scheduled to take place between now and 2020 with eight others being pushed back to 2021 and 2022.

The delaying of numerous execution was explained in this press release, which also notes that Gov Kasich has (unsurprisingly) denied clemency for a double murderer still scheduled to be executed on September 13:

Gov. John R. Kasich has denied a request for executive clemency from Gary Otte who was convicted in Cuyahoga County for the 1992 robbery and murder of 61 year-old Robert Wasikowski and 45 year-old Sharon Kostura at their respective apartments in Parma, OH.  The Governor’s decision follows the advice of the Ohio Parole Board, who on February 10, 2017, recommended against clemency for Otte by a vote of 11-0.

Additionally, in consultation with the Ohio Department of Rehabilitation and Correction, the governor updated Ohio’s current execution schedule.  After the U.S. Supreme Court rejected claims by Ohio inmates that the state’s protocol was unconstitutional, allowing the execution of Ronald Phillips to proceed in July, the state reviewed the existing schedule to ensure Ohio would meet the goal of conducting court-ordered executions in a humane and professional manner.

Looking over the revised execution schedule, I surmise that the folks at the Ohio Department of Rehabilitation and Correction were not too keen on having to gear up for an execution scheduled nearly every month for the next two years and so they urged Gov Kasich to set a revised schedule that now has an execution taking place only, roughly, every other month through the next five years.

Notably, there are, as detailed here, another 123 persons on Ohio's death row in addition the the 26 with current execution date. That means that even if Ohio were to keep up the pace of six execution per year going forward after 2022, it would take until 2042 to carry out the sentences only of those currently condemned to die. That reality, in turn, lead me to start speculating about who might be governor of Ohio in a quarter century and whether she might be a proponent or opponent of capital punishment.

September 3, 2017 in Clemency and Pardons, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11)