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November 4, 2017

Some more diverse reading about the opioid crisis

As I have said in prior posts, I could readily fill this blog multiple times a day with tales of the opioid crisis given the size and reach of the problem and the attention it is getting from many quarters.  Catching my attention this week are these opioid stories and commentaries, some which respond to the recommendations that emerged from Prez Trump's Commission on Combating Drug Addiction and the Opioid Crisis (discussed here):

November 4, 2017 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (6)

"Can Jared Kushner Save Criminal Justice Reform?"

The question in the title of this post is the headline of this recent Marshall Project article about a figure who has long been seen as an important figure in the fate of federal criminal justice reform in the Trump Era.  Here are some excerpts:

In July, [Pat] Nolan, now director of the American Conservative Union Foundation’s Center for Criminal Justice Reform and a leading figure in a conservative reform effort that goes under the rubric Right on Crime, picked up the newspaper and saw that Jared Kushner was well-placed to advance the cause. Nolan reconnected and began sending Kushner memos on how private businesses and church groups could be mobilized to become mentors for released prisoners. Kushner almost always responded within hours.

Nolan’s faith has been bolstered by a flurry of meetings, summits and dinners that Kushner has held in recent weeks with lawmakers and criminal justice reform advocates, leading the more optimistic activists to believe the tough-on-criminals posture of President Donald Trump and Attorney General Jeff Sessions may not mean a complete freeze on federal reforms.

Many wonder whether Kushner has the clout and skill to maneuver any reform to enactment. No new initiatives or official messages of support for reform legislation have come from a White House that has ratcheted up enforcement of drug and immigration offenses. But given a window into the 36-year-old’s dealing with bipartisan groups seeking reforms, Nolan thinks Kushner, driven by his own personal frustrations with the criminal justice system, stands a chance of success. “He cares passionately about this,” Nolan said....

In September, Nolan was among faith leaders invited by Kushner to discuss ideas for a national mentoring program to help released prisoners resettle in their communities -- a measure that would require minimal federal effort. Later that afternoon, Kushner convened a roundtable of politicians, criminal justice reform groups, religious leaders, employers and others in the Indian Treaty Room in the East Wing of the Eisenhower Executive Building. The conference was called the “Prisoner Reentry Summit” and participants had been sent questions in advance to prepare.

“Please let us know if there are ways in which the President can amplify already successful programs, Federal and private sector/nonprofit, or assist in making a program more effective,” the questionnaire said. “While suggestions for the investment of Federal resources are appreciated, please also be sure to highlight opportunities that do not require Federal funding.”In a navy blue suit, Kushner sat in the middle of a long conference table flanked to his left and right by Nolan and Kentucky Gov. Matt Bevin. Others at the meeting included U.S. senators Sheldon Whitehouse of Rhode Island and John Cornyn of Texas, U.S. representatives Chris Collins of New York and Sheila Jackson Lee of Texas, Gov. Sam Brownback of Kansas, Secretary of Housing and Urban Development Ben Carson and Secretary of Labor Alexander Acosta.

Participants spoke for three to five minutes each on a range of challenges faced by released prisoners, including housing, education and employment while Kushner took notes, asked questions and identified next steps, Holden said. A Department of Justice official who attended signaled that the DOJ was interested in drug courts and programs that could help released prisoners transition back to communities, a surprise to those who feared that Attorney General Sessions’ agenda would only focus on enforcing laws and punishing criminals. “It wasn’t ‘lock em up and throw away the key,’” Holden said. (About a week after the summit, the Department of Justice announced that it was awarding more than $9.5 million to juvenile and family drug court programs across the country.)...

No new initiatives have been launched by the White House since the meeting but other positive signs for reform have followed. Early this month a bipartisan group of senators led by Senate Judiciary Committee Chairman Chuck Grassley, Senate Democratic Whip Dick Durbin and several others reintroduced the Sentencing Reform and Corrections Act, a popular bipartisan bill that died last year when it was never put up for a vote. The bill would give judges more discretion at sentencing to skirt mandatory minimum sentence requirements for people with short criminal histories, and its revival was unexpected; Sessions had strongly opposed the bill last year when he was in the Senate.“Something happened,” said Inimai M. Chettiar, Justice Program director of the left-leaning Brennan Center for Justice. “We don’t know what happened. What I found interesting about the resurrection of this particular bill is that Sessions did a lot of work to kill this bill.”

Sources in the Senate say Kushner has pledged White House support for the bill. Does that mean he believes he has more sway with President Trump than Sessions does? Or has Sessions changed his mind or reached a compromise with Kushner and senators? Attempts to reach Kushner through the White House communications director were not successful. A DOJ spokesman declined an interview request for Sessions....

In talks with Nolan, Kushner has indicated that he believes Sessions is more of a proponent of second chance programs than many have been led to believe. Sessions’ Senate record includes sponsoring legislation that reduced the discrepancies for penalties for using crack versus cocaine and the Prison Rape Elimination Act. “He thinks that the press and the public have misinterpreted where Sessions is coming from,” Nolan said. “He thinks there is a lot more commitment from Sessions to working toward reforms. ”But even if Kushner can hurdle Sessions’ reservations, Whitehouse said, White House leadership will be needed to persuade House Speaker Paul Ryan to guide a bill through a House obstacle course, and convince Senate Majority Leader Mitch McConnell to give the bill floor time and line up votes. “There are ways to get there but it requires levers to be applied that the White House has and I do not,” Whitehouse said....

Of the conservatives who have Kushner’s ear, Whitehouse says, “To be blunt, I am skeptical of their motives.” But having participated in two meetings with Kushner on the subject, Whitehouse said he believes the president’s son-in-law is serious about improving the criminal justice system. “I’ve seen the way he talks about it,” Whitehouse said. “I haven’t the faintest idea of how he polls in the White House,” but “I know he’s sincere about this.”

November 4, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (4)

November 3, 2017

Army deserter Bowe Bergdahl gets no prison time, Prez Trump not too pleased

As reported in this Fox News story, headlined "Bergdahl dishonorably discharged, no jail time after emotional trial," a high-profile military sentencing today prompted a high-profile response from the Commander in Chief.  Here are the details:

President Trump tweeted Friday that Army Sgt. Bowe Bergdahl's sentence -- a dishonorable discharge, but no prison time for leaving his post in June 2009 -- was a "complete and total disgrace."

More than eight years after Bergdahl walked off his base in Afghanistan -- and unwittingly into the clutches of the Taliban -- Bergdahl walked out of a North Carolina courtroom a free man Friday.  Bergdahl, who pleaded guilty to endangering his comrades, was fined, reduced in rank to E1 and dishonorably discharged -- but he received no prison time.

Trump, aboard Air Force One en route to meetings in Asia, tweeted his disapproval of the sentence.  "The decision on Sergeant Bergdahl is a complete and total disgrace to our Country and to our Military," Trump wrote.....

As part of the sentence, Bergdahl will forfeit his pay of $1000 per month for ten months.  Bergdahl was shaking and appeared emotional as the verdict was quickly read.

Bergdahl's defense lawyer has told reporters after sentencing that his client "has looked forward to today for a long time." Eugene Fidell added: "Sgt. Bergdahl is grateful to everyone who searched for him in 2009, especially those who heroically sustained injuries."...

Fidell told reporters that he looks forward to the appeals court reviewing Trump's statements as a candidate, which he appeared to reaffirm on the day Bergdahl pleaded guilty Oct. 16.  Addressing reporters before Trump tweeted about the sentence, Fidell said Trump had already caused one of the "most preposterous" legal situations in American history.  He said he looks forward to the appeal, adding: "We think there's an extremely strong basis for dismissal of the case."

Prosecutors had requested a 14-year prison term following a week of emotional testimony from the survivors who were wounded during missions to find Bergdahl after he left the base in June 2009.  Bergdahl's defense team had asked for no prison time.  Bergdahl faced up to life in prison for desertion and misbehavior before the enemy.

Prior related post:

November 3, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (35)

"Multiple Offenders and the Question of Desert"

The title of this post is the title of this new paper by Youngjae Lee now available via SSRN. Here is the abstract:

This essay, published as a chapter in Sentencing Multiple Crimes (Jesper Ryberg, Julian V. Roberts & Jan W. de Keijser eds., 2017) examines the bulk-discount approach to sentencing multiple offenders.  It argues that bulk discounts are not only appropriate and even mandatory from the just deserts perspective, but that as a general matter, there should be a substantial reduction in sentence for each additional offense when it comes to multiple-offense sentencing.

After providing specific examples of multiple offenders who were sentenced consecutively, the chapter discusses the relationship between culpability and character from the perspective of just deserts theory or retributivism.  It then advances the claim that sentences for multiple offenders should not reach the level at which the state would be communicating an unfairly and inappropriately harsh assessment of the character of each multiple offender.  It also considers the ways in which multiple offenders are more culpable than single-crime offenders and concludes by insisting that discounts for multiple offenders and premiums for repeat offenders are not inconsistent.

November 3, 2017 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Prof Tribe makes standard policy arguments to advocate that Supreme Court "hold the death penalty unconstitutional nationwide"

Because Harvard Law Prof Laurence Tribe has long been among the nation's most highly regarded constitutional thinkers, I got excited when I saw he penned this new Washington Post opinion piece headlined "The Supreme Court should strike down the death penalty."  I was hoping that Prof Tribe might be presenting  some novel arguments for declaring capital punishment per se unconstitutional. But, as detailed below, his piece just makes familiar policy arguments against the punishment based on how it gets applied:

After more than 40 years of experimenting with capital punishment, it is time to recognize that we have found no way to narrow the death penalty so that it applies only to the “worst of the worst.”  It also remains prone to terrible errors and unacceptable arbitrariness.

Arizona’s death-penalty scheme is a prime example of how capital punishment in the United States unavoidably violates the Eighth Amendment’s requirement that the death penalty not be applied arbitrarily.  The Supreme Court will soon consider accepting a case challenging Arizona’s statute and the death penalty nationwide, in Hidalgo v. Arizona....

As a result of Arizona’s ever-expanding list of aggravating factors, 99 percent of those convicted of first-degree murder are eligible for execution.  This wholly fails to meet the constitutional duty to narrow the punishment to those murderers who are “most deserving” of the punishment.

It has also opened the door to disturbing racial trends.  Studies show that people in Arizona (and nationally) accused of murdering white victims are much more likely to receive the death penalty.  There are also geographic disparities: Some counties do not pursue the death penalty, while Maricopa County, where the defendant in the Hidalgo case was tried, imposed the death penalty at a rate 2.3 times higher than the rest of the state over a five-year period....

Instead of continuing, in the words of Justice Harry A. Blackmun, to “tinker with the machinery of death,” the court should hold the death penalty unconstitutional nationwide.

In doing so, the court would be recognizing our country’s movement away from capital punishment: Eleven states that have the death penalty on their books have not had an execution in the past 10 years — four states have suspended the death penalty, and 19 have abolished it entirely.  Each year, the death penalty continues to shrink as its use becomes not less but more arbitrary: Death sentences have declined by more than half in just the past five years.  Executions went from a modern-era high of 98 in 1999 to 20 in 2016. A handful of counties — just 2 percent — are driving the death penalty while the rest of the nation has moved on.

One reason jurors are increasingly uncomfortable in choosing death is the growing awareness that too many condemned people are, in fact, innocent.  In the modern era of the death penalty, 160 people have been exonerated and freed from death row because of evidence that they were wrongly convicted.  A painstaking study from the National Academy of Sciences concluded that 4 out of every 100 people sentenced to death in the United States are innocent.  When even 1 in 1,000 would be unacceptable, the continued use of the death penalty undermines the public’s confidence in the criminal-justice system.

The court should acknowledge that capital punishment — in Arizona and everywhere else — violates human dignity and constitutes cruel and unusual punishment. At the very least, it should enforce the requirement that the death penalty be available only in the rarest of circumstances.

Though supporters of the death penalty can readily dicker with some particulars in Prof Tribe's complaints about arbitrariness, "racial trends," geographic disparities and wrongful convictions in the capital context, I am always struck by the suggestion that these problems of capital administration justify constitutional abolition of the death penalty and only the death penalty.  Arbitrariness, "racial trends," geographic disparities and wrongful convictions plague just about every facet of our justice systems and implicate punishments in arenas ranging from life without parole to federal mandatory minimum drug sentences to plea practices to juvenile court adjudications.  If the policy concerns expressed by Prof Tribe here justifies the Supreme Court declaring one punishment per se unconstitutional, it arguably justifies declaring many other punishments per se unconstitutional.

Of course, the Supreme Court has long developed a unique jurisprudence for capital cases that dramatically shapes and limits its application, and many abolitionists like Prof Tribe would surely like to see the Court finally convert policy arguments against the death penalty into a categorical constitutional prohibition.  But, especially with so few members of the Court now showing any eagerness to take up Justice Breyer's suggestion in Glossip to reconsider the facial constitutionality of the death penalty, there seems little reason to expect that a majority of Justices will want to do what Prof Tribe is urging anytime soon.

November 3, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

November 2, 2017

Sex offender registration laws meet Apprendi procedural rights in new Pennsylvania ruling

A helpful reader altered me to an interesting new ruling from appellate court in the Commonwealth of Pennsylvania, Commonwealth v. Butler, NO. J-A21024-17 (Pa. Supp. Ct. App. Oct. 31, 2017) (available here). Folks concerned about the reach of sex offender registration laws and fans of the Supreme Court's Apprendi line of jurisprudence will both want to check out this opinion.  Here is how it starts and a key part of the ruling:

Appellant, Joseph Dean Butler, appeals from the judgment of sentence entered on August 4, 2016, as made final by the denial of his post-sentence motion on August 10, 2016.  In this case, we are constrained by our Supreme Court’s recent decision in Commonwealth v. Muniz, 164 A.3d 1189 (Pa. 2017), to hold that 42 Pa.C.S.A. § 9799.24(e)(3), a portion of the Sexual Offender Registration and Notification Act’s (“SORNA’s”) framework for designating a convicted defendant a Sexually Violent Predator (“SVP”), violates the federal and state constitutions. As such, we are compelled to reverse the trial court’s July 25, 2016 order finding that Appellant is an SVP and we remand for the sole purpose of having the trial court issue the appropriate notice under 42 Pa.C.S.A. § 9799.23 as to Appellant’s registration requirements....

Apprendi and Alleyne apply to all types of punishment, not just imprisonment.  See S. Union Co. v. United States, 567 U.S. 343, 346-360 (2012).  Thus, as our Supreme Court has stated, if registration requirements are punishment, then the facts leading to registration requirements need to be found by the fact-finder chosen by the defendant, be it a judge or a jury, beyond a reasonable doubt.  See Commonwealth v. Lee, 935 A.2d 865, 880 (Pa. 2007)....

We recognize that our Supreme Court did not consider the ramifications of its decision in Muniz with respect to individuals designated as SVPs for crimes committed after SORNA’s effective date.  Nonetheless, our Supreme Court’s holding that registration requirements under SORNA constitute a form of criminal punishment is dispositive of the issue presented in this case.  In other words, since our Supreme Court has held that SORNA registration requirements are punitive or a criminal penalty to which individuals are exposed, then under Apprendi and Alleyne, a factual finding, such as whether a defendant has a “mental abnormality or personality disorder that makes [him or her] likely to engage in predatory sexually violent offenses[,]” 42 Pa.C.S.A. § 9799.12, that increases the length of registration must be found beyond a reasonable doubt by the chosen fact-finder.  Section 9799.24(e)(3) identifies the trial court as the finder of fact in all instances and specifies clear and convincing evidence as the burden of proof required to designate a convicted defendant as an SVP.  Such a statutory scheme in the criminal context cannot withstand constitutional scrutiny.  Accordingly, we are constrained to hold that section 9799.24(e)(3) is unconstitutional and Appellant’s judgment of sentence, to the extent it required him to register as an SVP for life, was illegal.

As a fan of Apprendi rights who has long been concerned that courts sometimes work too hard to limit their logical reach, I am pleased to see this state court come to a seemingly sound conclusion in a controversial setting.  In addition, I get a kick out of imagining, if now asked what case applied Apprendi rights to the SORNA setting, saying "the Butler did it."

November 2, 2017 in Blakely in the States, Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (1)

With notable advocates, former Gov Blagojevich bringing notable sentencing issue to SCOTUS

As reported in this local press article, headlined "Imprisoned Blagojevich again asks U.S. Supreme Court to hear his case," a high-profile defendant is bringing an interesting sentencing issue to the Supreme Court. Here are the basics:

Ex-Gov. Rod Blagojevich has again appealed his case to the U.S. Supreme Court, his lawyer confirmed Thursday. The former governor’s bid to the high court is among the very few options the imprisoned Democrat has left.

Blagojevich has tried to take his case to the Supreme Court once before. It refused to hear from him early last year, and his new petition is also considered a long-shot. Blagojevich is not due out of prison until May 2024.

The new 133-page filing presents the Supreme Court with two questions: Whether prosecutors in a case like Blagojevich’s must prove a public official made an “explicit promise or undertaking” in exchange for a campaign contribution, and whether more consideration should have been given to sentences handed down in similar cases.

This big cert petition is available at this link, where one can see that Thomas Goldstein and Kevin Russell of SCOTUSblog fame are listed as counsel of record.  And here is how these two astute SCOTUS litigators frame the sentencing issue they are bringing to the Justices in this case:

May a district court decline to address a defendant’s nonfrivolous argument that a shorter sentence is necessary to avoid “unwarranted sentence disparities,” 18 U.S.C. § 3553(a)(6), so long as it issues a sentence within the U.S. Sentencing Guidelines, as the Seventh and Tenth Circuits hold, in conflict with the law of the majority of circuits?

Long-time readers know that I see a whole host of post-Booker 18 U.S.C. § 3553(a) sentencing issues as cert-worthy, but the Justices themselves have not taken up many such cases over the last decade. It is great to see experienced SCOTUS litigators making the case for cert on these kinds of grounds in a high-profile setting, though I think the "long-shot" adjective remains fitting.

November 2, 2017 in Booker and Fanfan Commentary, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Is Prez Trump making a capital prosecution for NYC terror killer harder with his death penalty tweets?

The question in the title of this post is prompted by this new Guardian article, headlined "Trump's 'alarming' death penalty call threatens suspect's chance of fair trial, experts warn." And that article was prompted by this series of tweets by Prez Trump this morning:

Prez Trump tweet around midnight on 11/2: "NYC terrorist was happy as he asked to hang ISIS flag in his hospital room.  He killed 8 people, badly injured 12. SHOULD GET DEATH PENALTY!"

Prez Trump tweets around 8am on 11/2:  "Would love to send the NYC terrorist to Guantanamo but statistically that process takes much longer than going through the Federal system... ...There is also something appropriate about keeping him in the home of the horrible crime he committed. Should move fast. DEATH PENALTY!"

I welcome all sorts of comments from all sorts of litigators about whether and how they think these tweets might impact the federal prosecution of Sayfullo Saipov for mowing down people in NYC.

Prior related posts:

November 2, 2017 in Criminal justice in the Trump Administration, Death Penalty Reforms, Who Sentences? | Permalink | Comments (22)

Opioid Crisis Commission advocates expanded federal drug court programs and lots of other (mostly public health) stuff

Prez Trump's Commission on Combating Drug Addiction and the Opioid Crisis issued this big final report yesterday, and the heart of the report's themes and recommendations are usefully summarized in this extended letter to Prez Trump penned by Commission Chair Chris Christie.  This article in The Hill, headlined "Trump opioid commission backs more drug courts, media blitz," provides this even tighter summary, including the one recommendation that may be of focused interest and concern for sentencing fans:

President Trump’s opioid commission laid out 56 recommendations for how the nation should combat the epidemic, including drug courts and a national media campaign, days after the crisis was declared a national public health emergency.  Members voted to approve the report, which was due Nov. 1, at the end of a meeting on Wednesday.

The commission didn’t weigh in on the specific amount of money needed to combat the health crisis. President Trump's declaration of a public health emergency, which doesn't free up millions of dollars in extra cash, sparked calls for more funding by Democrats and advocacy groups.  But the report calls on Congress to determine the funding required....

Advocacy groups argue a robust infusion of federal dollars is needed to combat the epidemic of prescription painkiller and heroin overdose deaths plaguing the nation. Without more money, they say, the emergency declaration won’t make a significant dent in the crisis. The public health emergency fund doesn’t have much left — about $57,000. New Jersey Gov. Chris Christie (R), who helms the commission, predicted Trump will initially ask “for billions of dollars to deal with this.”...

Here are some of the commission’s recommendations:

— A coordinated system: The Office of National Drug Control Policy (ONDCP) should create a system to track all federally funded initiatives and invest only in effective programs. “We are operating blindly today; ONDCP must establish a system of tracking and accountability,” the report notes.

— A media campaign: The White House should fund and collaborate on a multiplatform media campaign, and the commission noted a similar one occurred during the AIDS public health crisis. It should address “the hazards of substance use, the danger of opioids, and stigma.”

– Opioid prescribing: The Department of Health and Human Services should develop a “national curriculum and standard of care” on prescribing prescription painkillers. It should supplement previous guidelines from the Centers for Disease Control and Prevention.

— Improve prescription drug monitoring programs. The Department of Justice should fund and create a hub to share data on prescribing and dispensing.

— Fentanyl: The commission wants to enhance sentencing for trafficking of this potent synthetic opioid.

November 2, 2017 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Drug Offense Sentencing, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Lots more impressive work in Teen Vogue's "Kids Incarcerated" series

In this post a few weeks ago I noted that Teen Vogue has been giving sustained attention to the issues of juvenile incarceration in this "Kids Incarcerated" series of articles.  This series now has dozens of articles that are work checking out, and these recent articles especially caught my attention and seemed worthy of additional promotion (though every article in the series looks great):

November 2, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Congratulations to new addition to Third Circuit, Judge (and sentencing scholar) Stephanos Bibas

As first noted in this post five months ago, Prez Donald Trump nominated a prominent sentencing scholar, Professor Stephanos Bibas, for a judgeship on the US Court of Appeal Third Circuit. As I said back then, I have a particular affinity for Prof Bibas not only because of his long history as a sentencing scholar, but also because we worked together on a Supreme Court case Tapia in which he was an appointed amicus and because we have co-authored articles such as Making Sentencing Sensible and Engaging Capital Emotions.  (Also, Prof Bibas did a stint of guest-blogging in this space in conjunction with the release of his book, "The Machinery of Criminal Justice," which was published in 2012 by Oxford University Press; his posts are linked under the category tab, Guest blogging by Professor Stephanos Bibas.)

Given this background, nobody should be surprised that I am extremely excited by this news from DC that today the "Senate voted to confirm Stephanos Bibas to the 3rd Circuit Court of Appeals."  I am confident that Judge Bibas will be a spectacular jurist, and I am especially eager to see how he handles the many federal sentencing appeals that are a regular part of the docket of every US Court of Appeals.

November 2, 2017 in Who Sentences? | Permalink | Comments (4)

November 1, 2017

Federal defenders write Senators in support of federal criminal justice reforms including mens rea reforms

A helpful reader pointed me to this lengthy letter sent to the leaders of the Senate Judiciary Committee on behalf of the Federal Public and Community Defenders to urge passage of legislation to reform federal mandatory sentencing laws. The letter's introduction highlights the themes of a document worth a full read:

Federal Defenders represent most of the indigent defendants in 91 of the 94 federal judicial districts nationwide. Over 80 percent of people charged with federal crimes cannot afford a lawyer, and nearly 80 percent of people charged with federal crimes are Black, Hispanic, or Native American.  Our clients bear the overwhelming, and disproportionate, brunt of mandatory minimum sentences.

Real sentencing reform is desperately needed.  The most significant driver of the five-fold increase in the federal prison population over the past thirty years has been mandatory minimums, particularly those for drug offenses.  The extreme levels of incarceration come at a human and financial cost that is unjustified by the legitimate purposes of sentencing, and that perversely undermines public safety.  The mandatory minimums that Congress intended for drug kingpins and serious traffickers are routinely and most often applied to low-level non-violent offenders.  Moreover, mandatory minimums have a racially disparate impact, and have been shown to be charged in a racially disparate manner.

The decision to charge mandatory minimums, or not, is entirely in the hands of prosecutors.  This provides a single government actor with unchecked power that is wholly inconsistent with traditional notions of legality and due process.  In light of the proven, longstanding problems created by mandatory minimums, they should be eliminated altogether.  Sentencing authority should be placed back in the hands of neutral judges where it has traditionally resided.

Short of those more comprehensive reforms, the Smarter Sentencing Act or the Sentencing Reform and Corrections Act would be a good start.  Both bills, in different ways and to different extents, would reduce mandatory minimums and expand judicial discretion, thus reducing unnecessarily harsh sentences and lessening unchecked prosecutorial power.  Neither bill is perfect.  Congress should pass one or the other, or a combination of the two.  Each of these bills represents a compromise, and should not be weakened any further.

We urge you not to pass the Corrections Act as a standalone measure.  It would provide time off at the end of a sentence only for certain select inmates, and would have little or no impact on the poor and racial minorities who comprise the vast majority of federal prisoners and are most in need of relief.  All inmates should have an opportunity to earn time off at the end of their sentences through demonstrated efforts at rehabilitation.  This too is consistent with traditional notions of punishment. However, the Corrections Act would make incentives to participate in rehabilitative programming unavailable to those who need it most.

We do support the Mens Rea Reform Act of 2017 because it embodies the fundamental principle that a person should be convicted of and punished for a crime only if he or she acted with a guilty mind, and because it would prevent many of our clients with low-level involvement in drug offenses from being over-charged and over-punished for the conduct of others of which they were not aware and that they did not intend.  However, mens rea reform is not a substitute for sentencing reform. True criminal justice reform must tackle the single biggest contributor to injustice in the federal system: mandatory minimum sentences.

November 1, 2017 in Aspects and impact of Sentencing Reform and Corrections Act, Drug Offense Sentencing, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

"Trump labels US justice system 'laughing stock' "

In this post last night, I flagged the prospect of yesterday's NYC terror attack becoming the first big federal capital prosecution of the Trump era.  But some sharp commenters surprised me by noting that it was not entirely clear that a federal criminal statute carrying the possibility of the death penalty was violated by Sayfullo Saipov.  Moreover, as reflected in this new CNN article which carries the headline that serves as the title of this post, it is not entirely clear that Prez Trump would be content with having Sayfullo Saipov subject to federal prosecution in the same way as Boston Marathon bomber Dzhokhar Tsarnaev and Charleston church shooter Dylann Roof:

President Donald Trump called for "quick" and "strong" justice for terror suspects in the wake of the deadly New York City attack, saying that it is not surprising terror attacks happen because the way the United States punishes terrorists is "a laughing stock."

Tuesday's terror attack in New York was the city's deadliest since 9/11.  Sayfullo Habibullaevic Saipov drove a rented van down a bike path, law enforcement sources have said.  The attack killed six victims instantly, while two others died later.  New York politicians and officials quickly labeled the incident a terror attack.

Trump's comments, made during a White House Cabinet meeting Wednesday, malign the justice system for a lack of toughness.  Attorney General Jeff Sessions, the head of the so-called 'laughing stock' justice system, was in the room for this comment -- sitting across from Trump.

The President also said he would consider sending the attacker to the controversial prison at Guantanamo Bay. "We also have to come up with punishment that's far quicker and far greater than the punishment these animals are getting right now," Trump told reporters. "They'll go through court for years. And at the end, they'll be -- who knows what happens."

He added: "We need quick justice and we need strong justice -- much quicker and much stronger than we have right now.  Because what we have right now is a joke and it's a laughing stock.  And no wonder so much of this stuff takes place."

White House press secretary Sarah Sanders, defending the President, claimed during her Wednesday briefing with reporters that Trump said "the process has people calling us a joke and calling us a laughing stock" -- which is not what Trump said.  Sanders also added that Trump was "voicing his frustration with the lengthy process that often comes with a case like this."...

Legal scholars are divided on whether Trump could actually send people to Guantanamo, with most acknowledging that such an action would set up an unprecedented constitutional showdown. Daphne Eviatar, the Human Rights Director with Amnesty International, slammed Trump's suggestion that he would consider sending Saipov to Guantanamo, stating that he was "a criminal suspect and should be treated as such by the US justice system."

Trump also derided political correctness in his Wednesday remarks, complaining that the country is "so politically correct that we're afraid to do anything."

Prior related post:

November 1, 2017 in Criminal justice in the Trump Administration, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (26)

Noticing how federal drug laws, rather than state homicide laws, are used to severely punish drug distribution resulting in death

One way the criminal justice system has been operationalized in response to the opioid crisis has been in the form of various state homicide charges — ranging from manslaughter to murder — being brought against persons who distribute drugs that result in the death of a drug user.  But this news report from North Carolina, headlined "How the ‘Len Bias Law’ of 1988 is being used to get longer prison sentences today," details how federal prosecutors can and will be able to pursue and secure more extreme sentences on drug offenders without ever bringing a homicide charge:

In 2015, local police and federal drug agents identified Walston as a major source of heroin in the Wilson, Greenville and Nash County area.  The investigators also confirmed that Walston sold heroin that led to a Wilson man’s death that year.  On March 27 that year, Sarah Anne Mollenhauer, 32, called the mother of the overdose victim and told the woman her son was not breathing, Higdon said.

Elton Wayne Walston was sentenced to 27 years in prison Monday after he was found guilty of distributing heroin that resulted in the death of a Wilson man in 2015. Walston, 66, was also found guilty of one count each of possession with intent to distribute heroin and illegally possessing a firearm and ammunition, along with four counts of distribution of heroin.

U.S. District Court Judge Louise W. Flanagan handed down the sentence, which was announced Tuesday in Raleigh by Robert J. Higdon Jr., the U.S. Attorney for the Eastern District of North Carolina. Walston was sentenced under the U.S. Anti-Drug Abuse Act of 1988, which carries a mandatory minimum prison term of 20 years and a maximum life sentence, along with a fine of up to $2 million, Higdon said. The statute is also known as the Len Bias Law, named for the first-team all-American basketball player at the University of Maryland who died of a cocaine overdose in June 1986, two days after he was the second overall pick by the Boston Celtics in the 1986 NBA draft.

A charge of second-degree murder might sound more imposing, but a conviction under the Len Bias Law usually results in a longer prison sentence, said Special Assistant U.S. Attorney Boz Zellinger.  Unlike in cases of second-degree murder, prosecutors do not have to prove malice, only that the victim’s death was caused by ingesting the drugs....

Higdon said the opioid crisis is a matter of life and death. The federal statute, he said, is needed to help combat a soaring epidemic that resulted in 60,000 drug overdoses across America last year.  He said 1,100 people died of overdoses last year in North Carolina, with three dying each day across the state.  “The death result law will be used more and more frequently,” Higdon said during a news conference Tuesday afternoon at the Terry Sanford Federal Building in downtown Raleigh.  “Our office, along with the entire U.S. Department of Justice, is determined to hold accountable those who deal these deadly drugs to enrich themselves. This prosecution is an example of that determination.”

U.S. Assistant Attorney Edward Gray said Walston first came to the attention of federal prosecutors after a member of a drug task force in Wilson reported a rise in heroin overdoses in the area.   In 2015, local police and federal drug agents identified Walston as a major source of heroin in the Wilson, Greenville and Nash County area. The investigators also confirmed that Walston sold heroin that led to a Wilson man’s death that year. On March 27 that year, Sarah Anne Mollenhauer, 32, called the mother of the overdose victim and told the woman her son was not breathing, Higdon said. The victim was at his brother’s home in Wilson....  Mollenahauer said she and her boyfriend left the home again at 1:30 a.m. When she returned at 5:30 a.m. she found the victim lying on the bathroom floor and not breathing. Emergency workers arrived and pronounced the man dead at 6:21 a.m., Higdon said.

Mollenhauer pleaded guilty to distribution of a quantity of heroin and aiding and abetting.  She was sentenced to nearly four years in prison.

Walston’s aunt, Emma Hardeman, a retired teacher who lives in Chicago, said Tuesday that her nephew is not the “big-time drug dealer” portrayed by federal prosecutors during his trial and at Tuesday’s press conference.  Hardeman said Walston was a former U.S. Air Force serviceman who suffered from post-traumatic stress syndrome after serving in Vietnam. She said her nephew was a longtime “functional addict” who sold drugs to support his own habit.

“He was a nickle-and-dime person,” she said. “He couldn’t even keep the lights and cable on. He didn’t have a $100,000 and a 100 pounds of heroin when they arrested him. He was a victim, too.” Hardeman said prosecutors should have held Mollenhauer more responsible.  She said Mollenhauer and her boyfriend returned to the victim’s home twice as he lay dying to take money from his wallet to buy more heroin.  Hardeman said family members have met with several federal lawyers and intend to appeal Walston’s sentence. “We are not going to lay down and let this die without fighting back,” she said. 

November 1, 2017 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics | Permalink | Comments (0)

Very excited for (not-so) new endeavor at OSU Moritz College of Law with creation of new Drug Enforcement and Policy Center (DEPC)

Images (1)Regular readers know that I often write about a range of drug enforcement and policy issues in this space and elsewhere, so I doubt anyone will be too surprised to read about this exciting new chapter for my work in this arena via this Ohio State University press release:

The Ohio State University Moritz College of Law announced today that it will establish the Drug Enforcement and Policy Center (DEPC) with funding provided by a $4.5 million gift from the Charles Koch Foundation.

The DEPC will support and promote interdisciplinary research, scholarship, education, community outreach and public engagement on the societal impacts surrounding legal reforms that prohibit or regulate the use and distribution of traditionally illicit drugs. Robert J. Watkins/Procter & Gamble Professor of Law Douglas A. Berman will lead the center, which will draw on institutional expertise from the Moritz College of Law, John Glenn College of Public Affairs, College of Social Work and across the university to examine the impact of modern drug laws, policies and enforcement on personal freedoms.

“The Drug Enforcement and Policy Center will serve as an objective, reputable voice in the national conversation relating to drug laws and enforcement,” said Moritz College of Law Dean Alan C. Michaels. “Doug is the perfect person to lead this interdisciplinary endeavor as we build on our strengths at the law school -- and comprehensively across Ohio State -- with research and outreach activities that will provide critical evidence to help inform policy decisions at the local, state and national levels.”

The DEPC will foster collaboration among Ohio State’s nationally recognized faculty in the areas of criminal law, public affairs, legislative reform, community well-being, economic development and social justice to explore how the “war on drugs” and other drug enforcement policies have affected Americans over the past half-century and possibilities for reform and improvement. It will also serve as an independent and reliable source for researchers, policymakers, the media and others interested in objective information about drug enforcement and reform, including rigorous examination of ongoing efforts by many states to replace blanket marijuana prohibition with various legalization and regulatory systems and rules.

“I am honored to serve as the first executive director of the Drug Enforcement and Policy Center as we begin important work across a breadth of critical topics at a time when leaders of all political beliefs are looking for reliable and objective evidence concerning the impact of modern drug policies and practices,” Berman said.

Cross-posted at Marijuana Law, Policy and Reform

November 1, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences? | Permalink | Comments (4)

October 31, 2017

Will NYC terror attack become the first big federal capital case for Trump's Department of Justice?

Despite the fact that Prez Obama and Attorney General Eric Holder sometimes hinted at having some ambivalence about the modern death penalty, the Justice Department during the Obama era consistently pursued and secured federal death sentences against high-profile mass murderers such as the Boston Marathon bomber Dzhokhar Tsarnaev and Charleston church shooter Dylann Roof.  Now, sadly, we have our first high-profile mass murder of the Trump era in which the murderer lives on to be subject to criminal prosecution.  The headline, "NYC terror attack leaves 8 dead, several injured; suspect's notes pledged ISIS loyalty," and first few paragraphs of this Fox News report highlight some of the reasons I would expect this latest mass murderer to soon be facing a federal capital charge:

A suspect accused of plowing a pickup truck onto a bike path and into a crowd in New York City Tuesday, killing at least eight people and injuring 11 more, is not a U.S. citizen and is originally from Uzbekistan, federal law enforcement sources have confirmed to Fox News.

The suspected driver, 29-year-old Sayfullo Saipov, had handwritten notes pledging his loyalty to the Islamic State terror network and shouted "Allahu Akbar" after the crash, law enforcement officials told Fox News. Saipov, who was shot by police, was taken into custody and remains hospitalized.

The suspect, from Ukbekistan, had a green card, a source told Fox News. Saipov came to the U.S. in 2010, and, according to The Associated Press, has a Florida license but may have been living in New Jersey.  Saipov was an Uber driver who had passed a background check, the company told Fox News.  It added that Saipov has now been banned from the app, and Uber has offered assistance to the FBI.

His notes, written in Arabic and pledging loyalty to ISIS, turned up in and near the vehicle, Fox News is told. In addition, The New York Post reported that investigators found "an image of the ISIS flag inside his vehicle."

Four of the injured were teachers and students who were riding on a short yellow school bus near Stuyvesant High School when they were hit by the suspect's Home Depot rental truck. One student remains in critical condition.

A victim killed in the attack was a Belgian citizen, Belgian Deputy Prime Minister and Foreign Affairs Minister of Belgium Didier Reyners tweeted on Tuesday. Three Belgians were also injured.  Others killed in the attack were Argentine citizens, according to Argentina's Foreign Ministry. Argentine newspaper La Nacion reported five of the eight people killed were Argentines traveling in the U.S. on a celebratory vacation.

As I have said after other similar horrible mass killing incidents, jurisdictions that retain the death penalty presumably do so in order to have the ultimate punishment available for these kinds of ultimate crimes.  Especially because both Prez Trump and Attorney General Sessions have be express supporters of the death penalty, I would be truly shocked if Sayfullo Saipov is not soon a capital defendant.

October 31, 2017 in Death Penalty Reforms, Offense Characteristics, Who Sentences? | Permalink | Comments (11)

"What Constitutes 'Consideration' of Mitigating Evidence?"

The question in the title of this post is the title of this new paper available via SSRN authored by Emad Atiq and Erin Lynn Miller. Here is the abstract:

Capital sentencers are constitutionally required to “consider” any mitigating evidence presented by the defense.  Under Lockett v. Ohio and its progeny, neither statutes nor common law can exclude mitigating factors from the sentencer’s consideration or place conditions on when such factors may be considered.  We argue that the principle underlying this line of doctrine is broader than courts have so far recognized.

A natural starting point for our analysis is judicial treatment of evidence that the defendant suffered severe environmental deprivation (“SED”), such as egregious child abuse or poverty.  SED has played a central role in the Court’s elaboration of the “consideration” requirement.  It is often given what we call “narrow-scope consideration,” because its mitigating value is conditioned on a finding that the deprivation, or a diagnosable illness resulting from it, was an immediate cause of the crime.  We point out, first, that the line of constitutional doctrine precluding statutory and precedential constraints on the consideration of mitigating evidence rests on a more general principle that “consideration” demands an individualized, moral — as opposed to legalistic — appraisal of the evidence.  When judges determine mitigating significance based on precedential reasoning or judge-made rules they fail to give a reasoned moral response to the evidence.  We articulate a three-factor test for when legalistic thinking prevents a judge from satisfying the constitutional requirement.  Narrow-scope consideration of SED evidence, in many jurisdictions, fails the test.

We contend, second, that, when the capital sentencer is a judge rather than a jury, she has a special responsibility to refrain from narrow scope consideration of mitigating evidence.  The Constitution requires that death sentences must be consistent with community values.  Broad scope consideration of mitigating evidence ensures that the diverse moral views of the community are brought to bear on the question of death-deservingness before a capital sentence is issued.

October 31, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

You be the state judge: what sentence for autistic man whose first convictions resulted from years of fondling young girl?

Perhaps because we recently have been discussing mandatory minimum sentences for aggravated sexual offenses in my Criminal Law class, I was intrigued by this sentencing story out of the state courts in Kansas.  The piece is headlined "Judge to weigh input before sentencing child molester, including numerous letters supporting him," and here are the basics that set up the question in the title of this post:

In August a jury convicted James M. Fletcher, 35, of Lawrence, of five counts of aggravated indecent liberties with a child, for repeatedly fondling a girl over the course of more than two years, starting when she was 11. Under sentencing guidelines, even though he has no other criminal history, Fletcher faces up to life in prison with no possibility of parole for at least 25 years, plus lifetime registration and supervision if he were to be paroled.

Fletcher’s sentencing hearing was Monday, but a ruling was delayed until Nov. 9. Judge Peggy Kittel took under advisement a request from Fletcher’s attorneys to give him a lighter sentence than what the guidelines require. Kittel said she wanted time to weigh her decision “due to the length of sentence Mr. Fletcher is facing.”

His situation is unusual, Kittel said.  “What makes this case so hard is that Mr. Fletcher has no criminal history, yet is facing a lifetime sentence,” Kittel said.

The numerous letters of support from family, friends, neighbors and co-workers are “impressive,” Kittel said. Fletcher’s co-workers lauded him as a capable electrical engineer, intelligent and even “brilliant,” she said.  “And yet a jury found him guilty of betraying the trust of (the victim),” the judge said. “…He stands convicted of something, really, ethically and morally wrong.”

More than three dozen people attended Monday’s hearing.  That included the victim, who also testified at the trial, but most were supporters of Fletcher. None spoke, and neither did Fletcher other than yes and no answers to the judge, with his head otherwise bowed. Fletcher, who has been jailed since his conviction, appeared in shackles and inmate clothing. The judge did, through prosecutors, receive and read a letter from the victim with a picture that she drew, but the letter was not read aloud nor the picture displayed in court. The judge also referenced the many letters in Fletcher’s support that she received earlier.

Fletcher’s attorneys, Sarah Swain and Cooper Overstreet, emphasized his lack of criminal history, his strong support system — pointing to Fletcher’s wife, parents, relatives and friends in the audience — his model behavior while out on bond prior to his conviction and his proactivity in seeking counseling for what was described in trial as a sexual attraction to the teenage body type. “That’s a very rare thing,” Swain said. “These can only be positive steps, steps in the right direction.”

Swain also added that, prior to legislation known as Jessica’s Law, the crimes of which Fletcher was convicted would have carried a substantially lighter sentence. That law, in part, increased penalties for certain sex crimes against children. Defense attorneys requested a total sentence for Fletcher of two and a half years, or 29 and a half months on each count, running concurrently.

Prosecutor Mark Simpson said the defense's arguments were not compelling enough to depart from sentencing guidelines. In fact, Simpson said some of those same points made Fletcher’s crimes even worse. “She trusted him,” Simpson said of the victim. “He was able to have access to her in a way that she could not have been more vulnerable.”

A psychological evaluation of Fletcher concluded that he would not be able to “groom” a child because he had autism, Simpson said, but that diagnoses only came when Fletcher was 34 and seemed to contradict descriptions of him in the numerous letters of support. The same analysis concluded that Fletcher intellectualized and rationalized behavior, limiting the ability of any treatment to be effective, Simpson said.

Simpson said the crimes occurred in a house under the same roof as several of Fletcher’s relatives, who at one point even suggested that his “cuddling” was inappropriate. Simpson said Fletcher orchestrated the abuse in part by trying to convince the girl she was only dreaming it. “This was not one bad decision,” Simpson said. “This was ongoing — years of carefully planned abuse by the defendant.”

Prosecutors are requesting a sentence of life in prison for Fletcher.  Simpson said that if Fletcher were paroled after 25 years, he would have served the equivalent of five years of prison for each count. "That does not seem like an inappropriately long sentence to me," he said.

Fletcher was charged in Douglas County District Court in September 2015 with one count of aggravated indecent liberties with a child under 14, with four more counts added in May 2016.  Charges indicate Fletcher molested the girl from December 2012 through January 2015, when the victim was 13.  The victim told the jury that numerous times when she stayed at Fletcher’s house in Lawrence, he fondled her bare breasts under her T-shirt at night. She said sometimes she was awakened by the action but that she pretended to be asleep, and that afterward she felt “scared,” “confused” and initially passed off the encounters as dreams “to give myself a reason to not have to tell anybody.”

The girl said no one else saw the alleged molestation and that she never told anyone until February 2015, after a confrontation between Fletcher and her mother, where Fletcher told her mother he was sexually attracted to teens and worried he would develop an attraction to the girl.

This kind of case is the sort that, in my view, showcases why sentencing decision-making can be so challenging for judges and why modern mass incarceration in a consequences of so many choices by so many players in the criminal justice system.  As the article reveals, the severity of the sentence here appears to be the product of, inter alia, the legislature increasing punishments under Jessica's law, prosecutors bringing multiple charges, the defendant contesting those charges at trial, and the operation of state sentencing guidelines.  And still, it appears, the sentencing judge has authority to impose a sentence as low as only 2.5 years in prison or as long as a mandatory 25 years in prison.  If/when judges regularly max out sentences in these kinds of tough cases, prison populations will always be large.

This case also serves as a notable example of how many different ways one can characterize offense conduct and offender characteristics.  Is this case properly and usefully labelled a violent offense?  Is it properly and usefully labelled a first or a repeat offense?  Is this the worst kind of sex offense because of the age of the victim and the duration of the activity or would the label repeat child rape not fairly characterize the the criminal activity.  And is the defendant here clearly autistic?  Does that matter?  Is he at high risk to reoffend if he only serves 2.5 years in prison?  Might be be at higher risk to reoffend if he were sentenced to a longer prison term? 

October 31, 2017 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

October 30, 2017

Interesting and encouraging new Gallup numbers on reports of crime victimization

Adj9kjn7qecu-5slyra5yqAs reported in this new posting from Gallup, "Twenty-two percent of Americans say a conventional crime was committed against their household in the previous 12 months, the lowest proportion since 2001." Here is more:

Over the past decade, the percentage reporting their household was victimized by any of seven different crimes averaged 26% and never dropped below 24%.

Gallup began computing its annual index of self-reported crime victimization in 2000.  The index is based on the "yes" responses from U.S. adults as to whether they or anyone in their household was the victim of any of seven common crimes -- ranging from vandalism to violent crimes -- in the past 12 months.

This year's drop in crime was not reported across all groups equally. Nonwhites and those with annual household incomes under $40,000 are about as likely this year as they were in 2016 to say their household had experienced a crime.  Some crimes were also much more likely to occur than others:

  • 12% said someone in their household had money or property stolen, down from 17% in 2016.
  • 10% were the victims of vandalism, down from 14% last year.
  • 3% had their house or apartment broken into, down from 5%.
  • 3% had an automobile stolen, compared with 4% in 2016.
  • 2% said someone in their household was mugged or physically assaulted, compared with 3% last year.
  • 2% said someone in their household was sexually assaulted, compared with 1% in 2016.
  • 1% had money or property taken by force with a gun, a knife, another weapon or physical attack, compared with 2% in 2016....

In all cases, the crime may or may not have been reported to the police. Some official statistics on crime rely only on counts of crimes reported to police, so they may underestimate crime incidence. Not included in the list are digital crimes such as identity theft or computer hacking, which will be the subject of a future Gallup report....

Americans ranked crime as one of the nation's most important problems two decades ago, but the combination of dramatically falling crime rates through most of the 1990s and the rise of other issues in the new century pushed it down the priority list of national problems.

With at least one in four American households victimized by crime every year from 2008 through last year, however, the threat of crime has continued to be a concern for many Americans.

Theories abound for why crime rates rise and fall, and it is too early to know whether this year's drop in reported crime will be sustained. But at worst, it ends the increase of recent years and, at best, it holds the potential to signal further reductions in crime in the future.

October 30, 2017 in National and State Crime Data, Offense Characteristics | Permalink | Comments (5)

"Most California Jurisdictions Show Declines In Property Crime During Justice Reform Era, 2010-2016"

The title of this post is the title of this short research report that I learned about via email from the Center on Juvenile and Criminal Justice. Here I how the email describe the report:

A new research report released today from the Center on Juvenile and Criminal Justice examines local trends in California’s property crime from 2010 through 2016, a period marked by major justice system reform, including Public Safety Realignment, Prop 47, and Prop 57.  Despite the relative stability of recent property crime trends, the report finds substantial variation in crime at the local level, which suggests that recent crime patterns may result from local policies rather than state policy reform.

The report finds:

• From 2010 to 2016, property crime rates fell more than 3 percent statewide despite the implementation of large-scale criminal justice reforms.

• For every major crime except vehicle theft, more California jurisdictions reported decreases than increases in their crime rates from 2010 to 2016. For example, just 141 jurisdictions reported increased rates of burglary, while 367 jurisdictions showed decreases.

• Across California, crime trends have been highly localized. Of the 511 cities and local areas included in this analysis, 42 percent showed rising rates of property crime from 2010 to 2016, with an average increase of 12.8 percent, and 58 percent showed decreases, with an average decline of 18.1 percent.

• Many jurisdictions, especially those that began with higher rates of property crime, have devised successful policies and practices that are improving local safety. Jurisdictions that showed decreasing rates of property crime between 2010 and 2016 had higher rates at the start of the reform era than those showing increases.

"The divergence between the 213 cities that have shown property crime increases since 2010 versus the 298 cities with property crime decreases was so large — a 31 percentage point difference — that the two categories of cities actually swapped places. This striking result suggests that reform measures such as Proposition 47 are not the reason a minority of cities experienced crime increases." — Mike Males, Ph.D., Senior Research Fellow

October 30, 2017 in National and State Crime Data, Offense Characteristics | Permalink | Comments (4)

Appreciating ugly sentencing realities facing Paul Manafort and Rick Gates after federal indictment

The big news in the political world this morning is the indictment of Paul Manafort, President Donald Trump’s former campaign chairman, which flows from special counsel Robert Mueller's investigation into Russian meddling in the 2016 election.  Along for the ride is another Trump campaign official, Rick Gates, who is also facing 12 federal criminal counts thanks to the work of a federal grand jury.  As is my tendency, I will be content to respond to this news with a few sentencing-related observations while leaving it to others to engage in political spin and other forms of legal speculation.

The full 31-page indictment of Manafort and Gates is available via this link, and the 12 federal criminal counts facing them are conspiracy against the United States (count 1), conspiracy to launder money (count 2), failure to file required reports (counts 3 to 9), being an unregistered agent of a foreign principal (count 10), false/misleading FARA statements (count 11) and false statements (count 12). Though a number of these counts, coupled with the narrative of the defendants' actions in the indictment, can sound quite ominous, it is ultimately the money laundering count that should send a Halloween chill down the spine of Manafort and Gates (and, presumably, their defense lawyers).

The money laundering count appears to carry the highest statutory sentencing range (20 years) of all the charges. In addition, because of the large amounts of money involved in these offenses — the indictment alleges Manafort laundered $18 million — the calculated guideline range for this offense is least a decade (and likely more).  In other words, if Manafort were convicted of just the money laundering allegations against him, the "starting point and the initial benchmark" for his sentencing is 10+ years in federal prison. (It is not clear from a quick review of the indictment whether the amounts involved for Gates would drive his guideline range up quite so high.)

Manafort, who is 68 years old, surely would like to avoid any prison time and he certainly does not want to risk spending the rest of his life in the federal pen.  He can, of course, choose to fight all the charges at trial, but I suspect Mueller and his team only moved forward with these indictment allegations after becoming confident they could prove them all beyond a reasonable doubt.  Moreover, thanks to the reality that federal judges can and often do consider "acquitted conduct" at sentencing, even an acquittal on most but not all of the counts may not significantly change these ugly sentencing realities for Manafort and Gates.

Of course, what can change these sentencing dynamics is a plea deal that locks in some favorable sentencing terms and/or a decision by the defendants to, in the language of 5K1.1 of the federal sentencing guidelines, "provide substantial assistance in the investigation or prosecution of another person who has committed an offense."  Those hoping that these indictments turn up the heat on current members of Team Trump can and should relish the reality that Manafort and Gates now have strong sentencing reasons to consider providing substantial assistance in the investigation of others.  What others they might have information about, and what others Mueller and his team are seeking information on, will sure keep folks inside the Beltway chattering in the coming weeks and months.

October 30, 2017 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (24)

October 29, 2017

"A Culture that is Hard to Defend: Extralegal Factors in Federal Death Penalty Cases"

The title of this post is the title of this notable new empirical paper authored by Jon Gould and Kenneth Leon. Here is the abstract:

Empirical research has exposed a troubling pattern of capital punishment in the United States, with extralegal factors such as race, class, and gender strongly correlated with the probability of a death sentence.  Capital sentencing also shows significant geographic disparities, although existing research tends to be more descriptive than explanatory.  This study offers an alternative conception of local legal culture to explain place-based variation in the outcomes of federal capital trials, accounting for the level of attorney time and expert resources granted by the federal courts to defend against a death sentence.

Using frequentist and Bayesian methods — supplemented with expert interviews — we empirically assess the processes determining the total allocation of defense resources in federal death penalty trials at the peak of the federal death penalty — between 1998 and 2004. Our findings strongly connect extralegal factors to the lowest levels of defense resources, which in turn correlate with a higher risk of a death sentence.  Far from being idiosyncratic discrepancies, these are systemic and systematic extralegal factors that stand between a defendant and his opportunity to defend against a death sentence.  Ultimately, we argue for a reconceptualization of extralegal influences and the relationship between local legal culture and capital case outcomes.

October 29, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

SCOTUS back in action with two intricate habeas cases

After a late October break (which included for some Justices a notable trip to my alma mater), the Supreme Court is back in action on Monday.  And right out of the gate, SCOTUS hears oral argument in two habaes procedure cases: Ayestas v. Davis and Wilson v. Sellers.  Steve Vladeck has thoughtful previews of both cases at SCOTUSblog, and here are links and the start of each preview:

Ayestas v. Davis Argument preview: A subtle but significant dispute over funding federal habeas petitions in capital cases:

As part of the Criminal Justice Act, Congress has provided in 18 U.S.C. § 3599(f) that federal courts in capital cases involving indigent defendants (including suits for post-conviction relief) should fund “investigative, expert, or other services [that] are reasonably necessary for the representation of the defendant, whether in connection with issues relating to guilt or the sentence.”  When the Supreme Court returns to the bench next Monday morning to hear argument in Ayestas v. Davis, it will consider a recurring question in federal habeas cases, especially those raising claims that the prisoner’s trial lawyers provided ineffective assistance of counsel: What, exactly, must habeas counsel demonstrate to show that such services are “reasonably necessary for the representation of the [petitioner]”?

The U.S. Court of Appeals for the 5th Circuit has imposed a high bar in such cases, holding that such funding is “reasonably necessary” only when the petitioner can demonstrate a “substantial need” for the services contemplated by the statute — i.e., “substantiated argument, not speculation, about what the prior counsel did or omitted doing.” The question at the heart of this case is whether that standard puts too high a burden on capital habeas petitioners — requiring them to all-but describe the merits of their ineffective-assistance claims in order to obtain funding to prove those claims.  Assuming the Supreme Court has jurisdiction to answer that question (an issue raised by the state of Texas), the answer could have enormous consequences for the ability of indigent death-row inmates to use federal habeas petitions to challenge the effectiveness of their trial lawyers.

Wilson v. Sellers Argument preview: To which state-court adjudications must federal habeas courts defer?

In its 2011 decision in Harrington v. Richter, the Supreme Court held that even a summary ruling by a state court can count as an adjudication “on the merits” to which federal habeas courts must defer under the Antiterrorism and Effective Death Penalty Act of 1996.  But the court in Richter specifically distinguished, rather than overruled, its 1991 decision in Ylst v. Nunnemaker, which had erected a presumption that, “[w]here there has been one reasoned state judgment rejecting a federal claim, later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground.”  Under the Ylst presumption, federal habeas courts are supposed to “look through” the summary state-court ruling to the decision that was actually on the merits of the claim raised in the federal habeas petition.  Richter holds that, at least when the Ylst presumption doesn’t apply (i.e., when there is no reasoned state-court decision on the merits issue), a summary state-court ruling still triggers “AEDPA deference.”

The question the justices will consider next Monday in Wilson v. Sellers, a capital case out of Georgia, is whether the Ylst presumption in fact survived Richter.  Even though the state of Georgia and the petitioner, Marion Wilson, agreed below that the answer was yes, a 6-5 majority of the en banc U.S. Court of Appeals for the 11th Circuit came to the opposite conclusion.  And although the state has since changed its position and is now arguing for affirmance, it may have a difficult time attracting a majority of the Supreme Court to this new and expansive take on Richter.

October 29, 2017 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Just a smattering of Fall highlights from Marijuana Law, Policy & Reform

It has been quite some time since I have done a round-up of posts of note from all the blogging I now do over at Marijuana Law, Policy & Reform.  Here are just some (of many) legal and policy highlights from the last few months at MLP&R that sentencing fans might find worth checking out:

October 29, 2017 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)