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February 11, 2017

A (crazy) harsh sentence for a voter fraud conviction in Texas

According to Prez Trump, voter fraud may be one of the most prevalent federal crimes in the United States (perhaps second only to marijuana use).  In light of the President's claims in this regard, I have to think the crazy harsh sentence imposed by a state court in Texas reported in this New York Times article is intended to try to deter this rampant crime.  The lengthy front-page NYT article is headlined "Illegal Voting Gets Texas Woman 8 Years in Prison, and Certain Deportation," and here are the interesting details:

Despite repeated statements by Republican political leaders that American elections are rife with illegal voting, credible reports of fraud have been hard to find and convictions rarer still.

That may help explain the unusually heavy penalty imposed on Rosa Maria Ortega, 37, a permanent resident and a mother of four who lives outside Dallas. On Thursday, a Fort Worth judge sentenced her to eight years in prison — and almost certainly deportation later — after she voted illegally in elections in 2012 and 2014.

The sentence for Ms. Ortega, who was brought to this country by her mother as an infant, “shows how serious Texas is about keeping its elections secure,” Ken Paxton, the Texas attorney general, said in a statement. Her lawyer called it an egregious overreaction, made to score political points, against someone who wrongly believed she was eligible to vote.

“She has a sixth-grade education. She didn’t know she wasn’t legal,” said Ms. Ortega’s lawyer, Clark Birdsall, who once oversaw voter fraud prosecutions in neighboring Dallas County. “She can own property; she can serve in the military; she can get a job; she can pay taxes. But she can’t vote, and she didn’t know that.”

The punishment was strikingly harsh for an offense that usually merits far less jail time, if any. A second fraudulent ballot case in metropolitan Fort Worth ended in 2015 with probation. Ms. Ortega insisted in court that she had been unaware that she was ineligible to vote and was confused by registration forms and explanations by election officials.

Prosecutors for Mr. Paxton and Tarrant County said that she had lied and that the same forms and conversations proved it. A jury convicted her Wednesday of two felony charges. Mr. Birdsall said Mr. Paxton’s office had been prepared to dismiss all charges against Ms. Ortega if she agreed to testify on voting procedures before the Texas Legislature. But the Tarrant County criminal district attorney, Sharen Wilson, vetoed that deal, he said, insisting on a trial that would showcase her office’s efforts to crack down on election fraud.

Both the attorney general’s office and the county prosecutor declined to comment on the specifics of Mr. Birdsall’s statement, citing privacy rules for plea-bargain negotiations. A spokeswoman for Ms. Wilson, Sam Jordan, said any negotiations were only “discussions,” a description Mr. Birdsall disputed....

Ms. Ortega’s case is unusual not just for its harshness but for its circumstances. Many fraud convictions that draw prison sentences — and some that do not — involve clear efforts to influence election results. Texas prosecutors won prison sentences for four men who moved into a hotel in 2010 to claim residency so they could sway a local election. A woman in Brownsville, Tex., was placed on five years’ probation for casting five absentee ballots under different names in elections in 2012.

Lawyers offered no clear motive for Ms. Ortega’s decision to cast ballots beyond her desire to participate in elections. Ms. Ortega, a native of Monterrey, Mexico, came to Texas with her mother when she was an infant. More than a decade later, the family was scattered after the mother was arrested and deported. Two brothers born in Dallas automatically gained citizenship; Ms. Ortega became a permanent resident and gained a green card, her brother Tony Ortega, 35, said in an interview.

As a Dallas County resident, she registered to vote and later cast ballots in elections in 2012 and 2014, her lawyer, Mr. Birdsall, said. While that was illegal, there was no attempt to break the law, he maintained: Some government forms allow applicants to declare that they are permanent residents, but the voting registration form asks only whether an applicant is a citizen. Lacking the permanent resident option, he said, she ticked the “citizen” box. When the county later mailed her a registration card, he said, she believed she “was good to go.”

Ms. Ortega moved to neighboring Tarrant County and again registered, but this time checked a box affirming that she was not a citizen. When her application was rejected in March 2015, the trial showed, she called election officials and told them that she had previously voted in Dallas County without difficulty. Told that she could not vote unless she was a citizen, she asked for another application, and returned it with a check in the box affirming citizenship. That raised questions, and law enforcement officials arrested her on fraud charges.

Jonathan White, an assistant attorney general who helped prosecute the Ortega case with Tarrant County officials, said the evidence of fraud was unambiguous. “She told the elections office she was a citizen,” he said. “She told everyone else she wasn’t,” including a recorded statement to prosecutors in which she said she was a citizen of Mexico.

Mr. Birdsall said the arrest and prosecution are punishing a woman for her own confusion over whether residency and citizenship confer the same rights. “She wasn’t trying to topple the country,” he said. “She was trying to make more serious decisions about our country than the 50 percent of the people who didn’t bother to vote in the last election.”...

Ms. Ortega is now in a Fort Worth jail awaiting transfer to a state prison. Her four children, ages 13 to 16, are being cared for by siblings and her fiancé, Oscar Sherman, 27, a trucker who said her arrest had scotched their plans to marry. The children’s fate is unclear. Mr. Sherman lacks legal custody; her siblings are still debating their options.

Ms. Ortega’s future is bleak. The federal government frowns on giving green cards to felons. “She’ll do eight years in a Texas prison,” Mr. Birdsall said. “And then she’ll be deported, and wake up blinking and scratching in a country she doesn’t know.”

Far-right websites have seized on Ms. Ortega’s conviction as proof that Mr. Trump is right about rampant fraud and efforts by Democrats to steal the November election. There is, however, at least one flaw in that story: Ms. Ortega was a registered Republican. “She voted for Mitt Romney over Barack Obama in the 2012 election. In 2014 she voted for our current attorney general, Ken Paxton,” Mr. Birdsall said. “And guess what? He’s the one responsible for prosecuting her.”

February 11, 2017 in Examples of "over-punishment", Offender Characteristics, Offense Characteristics | Permalink | Comments (29)

Ohio Gov forced to delay scheduled executions yet again due to lethal injection ltigation

As this local article reports, "Gov. John Kasich has delayed eight scheduled executions because of continuing litigation over lethal injection drugs." Here are the details:

The governor used his executive clemency authority to reschedule the executions, beginning with Ronald Phillips who was to be put to death on Wednesday for the 1993 rape and murder of three-year-old Sheila Marie Evans. Phillips will now be executed on May 10, under the revised schedule.

The delays follow the Jan. 26 decision by U.S. District Court Magistrate Judge Craig Merz barred the state's use of a three-drug protocol, declaring it unconstitutional, and blocked the pending execution of Phillips and two other inmates. The state has appealed the ruling to the 6th U.S. Circuit Court of Appeals.

"While Ohio is confident its appeal will ultimately be successful ... the appellate court's scheduling will not allow the matter to be resolved in time to allow the state to move forward with its current execution dates," Kasich's office said in a statement this morning. "Accordingly, these delays are necessary to allow the judicial process to come to a full resolution, and ensure that the state can move forward with the executions."

Merz's lengthy order cited problems with executions in other states with the use of midazolam, one of the three drugs in Ohio's protocol, along with rocuronium bromide and potassium chloride.

Ohio hasn't had an execution since Jan. 16, 2014, when Dennis McGuire choked, gasped and struggled against his restraints for much of the 26 minutes it took for him to die. Midazolam was one of the drugs used to execute McGuire.

The revised schedule after Phillips [includes] Gary Otte, moved to June 13 from March 15 [and] Raymond Tibbetts, moved to July 26 from April 12.

Ever since Ohio announced it had acquired execution drugs and had a new execution protocol in early Fall 2016, I have been expecting and sort-of predicting that Ohio would finally find a way to get its machinery of death back up and running again in 2017. Given some prior Sixth Circuit and Supreme Court rulings, I continue to think Ohio will be able to complete some executions this year. But, of course, lethal injection litigation can be like Forrest Gump's box of chocolates: you never quite know what you are gonna get.

February 11, 2017 in Baze and Glossip lethal injection cases, Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

February 10, 2017

Mississippi taking steps to have firing squad, electric chair and gas chamber as execution methods again

As reported in this new Fox News piece, "Mississippi lawmakers want to bring back the firing squad, electric chair and gas chamber as execution methods, a step three other states have taken recently, but for a different reason." Here is more:

Oklahoma reintroduced the gas chamber, Utah the firing squad and Tennessee the electric chair in response to a nationwide scarcity of lethal injection drugs for death row inmates.

Mississippi legislator Andy Gipson said he introduced House Bill 638 in response to lawsuits filed by “liberal, left-wing radicals” challenging the use of lethal injection drugs as cruel and unusual punishment. "I have a constituent whose daughter was raped and killed by a serial killer over 25 years ago, and that person's still waiting for the death penalty. The family is still waiting for justice," Gipson told the Associated Press.

Gipson’s bill passed the House Wednesday, 74-43, and moves to the Senate for more debate.

Mississippi hasn't been able to acquire the execution drugs it once used, and it last carried out an execution in 2012. The state has 47 people on death row, and some have been there for decades.

The 33 states with the death penalty all have lethal injection as the primary method of execution, according to the Death Penalty Information Center and its executive director, Robert Dunham. The center says only Oklahoma and Utah have firing squads as an option; eight states have electrocution, five have the gas chamber, and three have hanging.

The firing squad became an option in Utah in 2015. That same year, Oklahoma Gov. Mary Fallin signed legislation to use nitrogen gas as an option. Tennessee enacted a law bringing back the electric chair in 2014.

“It’s interesting that what we anticipated would happen is happening,” Dunham told FoxNews.com Friday. “As states are having difficulty obtaining drugs for lethal injections, they’re looking at different options.” He expects legal challenges in states that reintroduce old execution methods. “What you will see is when states change their method of execution, there are invariably legal challenges that arise,” Dunham said.

Jim Craig, an attorney who is suing Mississippi over lethal injection drugs, told The Associated Press on Wednesday that each of the proposed new methods of executions would be challenged in court. "Every single one, in essence, just injects a whole new series of issues in the existing case," said Craig, who is with the New Orleans-based Roderick & Solange MacArthur Justice Center. He said with the firing squad, for example, the state would have to set protocols and procedures to reduce the risk of torture, and he doubts the Department of Corrections has prepared to do that....

Oklahoma officials told Fox 25 in November they haven’t established protocols to use nitrogen gas as a backup execution method but have heard from a company offering pain-free and mistake-free gas chamber executions. The company sent a letter to Oklahoma Department of Corrections guaranteeing the “demise of any mammalian life within four minutes,” according to the station.

February 10, 2017 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (15)

Third Circuit finds death row inmates granted resentencing stuck in solitary confinement have protected liberty interests

A unanimous panel ruling by the Third Circuit yesterday in Williams v. Secretary of PA Dep't of Corrections, No. 14-1469 (3d Cir. Feb. 9, 2017) (available here) spotlights an interesting connection between death row and solitary confinement.  Here is the start of the opinion and a key paragraph from its heart:

We are asked to decide whether there is a constitutionally protected liberty interest that prohibits the State from continuing to house inmates in solitary confinement on death row after they have been granted resentencing hearings, without meaningful review of the continuing placement.  For the reasons set forth below, we conclude that there is and that the Due Process Clause of the Fourteenth Amendment therefore limits the State’s ability to subject an inmate to the deprivations of death row once the death sentence initially relied upon to justify such extreme restrictions is no longer operative.  However, we also hold that, because this principle was not clearly established before today, the prison officials (“Defendants”) in this consolidated appeal are entitled to qualified immunity.

Accordingly, we will affirm the district courts’ grants of summary judgment in favor of Defendants based on qualified immunity. In reaching this conclusion, we stress that this liberty interest, as explained more fully below, is now clearly established....

In our ruling today, we now explicitly add our jurisprudential voice to this growing chorus [of concerns about the use of solitary confinement]. In doing so, we rely, in part, upon the scientific consensus and the recent precedent involving non-death row solitary confinement. Those decisions advance our inquiry into the unique, yet analogous, scenario presented here. Inmates in solitary confinement on death row without active death sentences face the perils of extreme isolation and are at risk of erroneous deprivation of their liberty.  Accordingly, they have a clearly established due process right under the Fourteenth Amendment to avoid unnecessary and unexamined solitary confinement on death row.  The State must therefore afford these inmates procedural protections that ensure that continuing this level of deprivation is required for penological purposes, and is not reflexively imposed without individualized justification.

February 10, 2017 in Death Penalty Reforms, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (1)

February 9, 2017

Prez Trump signs three crime-fighting executive orders, including one to create a “Task Force on Crime Reduction and Public Safety”

As reported and summarized in this CBS News report, this morning "President Trump signed three executive actions Thursday aimed at bolstering law enforcement and targeting violent crime and criminal drug cartels." Here is more:

The first executive order, according to what Mr. Trump outlined during the signing ceremony in the Oval Office, is meant to direct the Departments of Justice and Homeland Security to “undertake all necessary and lawful action to break the back of the criminal cartels that have spread across our nation and are destroying the blood of our youth and many other people.” The president signed the action Thursday after swearing in Attorney General Jeff Sessions. Among other powers, the action gives broad authority to increase intelligence and lawn enforcement information sharing with foreign powers in order to crack down on “transnational criminal organizations” and their subsidiaries. It also instructs an interagency panel to compile a report on crime syndicates within four months.

“These groups are drivers of crime, corruption, violence, and misery,” the order reads. “In particular, the trafficking by cartels of controlled substances has triggered a resurgence in deadly drug abuse and a corresponding rise in violent crime related to drugs.”...

The president signed two other actions Thursday, including one that creates a task force within the Justice Department dedicated to “reducing violent crime in America.” The “Task Force on Crime Reduction and Public Safety” will have administrative and financial support from the Attorney General’s office, according to the text of the order.

The last action directs the DOJ to implement a plan to “stop crime and crimes of violence against law enforcement officers.” The order itself instructs the department to “pursue appropriate legislation...that will define new Federal crimes, and increase penalties for existing Federal crimes, in order to prevent violence against Federal, State, tribal, and local law enforcement officers.” That recommended legislation could include “defining new crimes of violence and establishing new mandatory minimum sentences for existing crimes of violence.” The order also directs a thorough evaluation of all grant funding programs currently administered by the Justice Department.

I am intrigued by all three of these orders, but I want to read the full orders before I comment on these.  Helpfully, the White House now has them available via these links:

Presidential Executive Order on a Task Force on Crime Reduction and Public Safety

Presidential Executive Order on Enforcing Federal Law with Respect to Transnational Criminal Organizations and Preventing International Trafficking

Presidential Executive Order on Preventing Violence Against Federal, State, Tribal, and Local Law Enforcement Officers

February 9, 2017 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (5)

Noting the concerns prompted by aging sex offenders

This short local Ohio article, headlined "States look for solutions to growing number of aging sex offenders," provides yet another example of how the sex offender label has echoes throughout so many aspects of society. Here are excerpts from the piece:

As states like Ohio deal with a growing number of aging registered sex offenders, another state is examining what to do with elderly sex offenders when they are in need of nursing home care.  In Iowa, lawmakers are studying whether to establish a separate facility for sex offenders to keep them away from other nursing home residents.

A Dayton Daily News examination found numerous examples of lax oversight of sex offenders in nursing homes in Ohio.  This newspaper’s investigation found 136 sex offenders were living in 43 nursing homes in Ohio in October. It also identified potential problems with the safety net, from under-staffing at homes with offenders to a lack of information on the public registry used by facilities to make admission decisions.

The Iowa Senate Human Resources Committee this week approved a resolution which asks the state’s legislature to create a committee to study the establishment of a facility to care specifically for those who are sex offenders or are sexually aggressive.

Iowa, like Ohio, has no dedicated facility for housing sex offenders in need of long-term care.  “The lack of such a facility places other geriatric patients, residents, and tenants at risk for being sexually abused,” the Iowa resolution says.

The proposal suggests studying either establishing a new facility, or expanding an existing one to keep sex offenders or sexually aggressive individuals separate from the general nursing home population.

February 9, 2017 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (9)

February 8, 2017

Jeff Sessions confirmed as Attorney General ... now what for federal sentencing policies and practices?

Jeff_Sessions_official_portraitAs Fox News reports here, "Sen. Jeff Sessions won confirmation Wednesday evening to become the next attorney general of the United States," and here's more of the basic backstory:

The Senate narrowly approved the Alabama Republican’s nomination on a 52-47 vote, the latest in a series of confirmation votes that have been dragged out amid Democratic protests. One Democrat, Joe Manchin of West Virginia, joined Republicans in voting to confirm Sessions. Sessions himself voted present.

In his farewell address Wednesday evening, Sessions urged his erstwhile colleagues to get along better following days of bruising debate. "We need latitude in our relationships," Sessions said. "Denigrating people who disagree with us is not a healthy trend for our body."...

Wednesday’s vote came after a rowdy overnight session during which Sen. Elizabeth Warren, D-Mass., was formally chastised for allegedly impugning Sessions’ integrity on the floor. Warren had read a letter authored in 1986 by Coretta Scott King, who was against Sessions’ nomination at the time to the federal bench, arguing he used the power of his office to “chill” black voting rights. Warren also quoted the late Sen. Ted Kennedy, D-Mass., who originally had entered King’s letter into the record, describing Sessions as “disgraceful.”

GOP Senate leaders said Warren had violated Senate rules and should lose her speaking privileges. In a remarkable scene, the Senate then voted 49-43 to suspend Warren’s speaking privileges for the rest of the nomination process – the first time the Senate has imposed such a punishment in decades.

Democrats had repeatedly contended that Sessions is too close to Trump, too harsh on immigrants, and weak on civil rights for minorities, immigrants, gay people and women. Sessions was a prominent early backer of Trump, a supporter of his hard line on illegal immigration and joined Trump's advocacy of a wall along the U.S.-Mexico border....

Republicans argued Sessions has demonstrated over a long career in public service, including two decades in the Senate, that he possesses integrity, honesty, and is committed to justice and the rule of law.

Everyone interested in federal sentencing law, policy and reform as well as all federal sentencing practitioners now must wonder what exactly an Attorney General Sessions will mean for federal sentencing policies and practices emerging from the U.S. Department of Justice.  (Over at Marijuana Law, Policy and Reform, I made the same point with respect to federal marijuana policies.)  

I am expecting and somewhat fearing the possibility that AG Sessions will be eager, though new memoranda to US Attorneys, to ramp up application of mandatory minimums in a variety of settings.  AG Sessions can formally and informally push for "tough and tougher" sentencing policies in lots of other ways as well, and it will be interesting to see whether and how he does in the weeks and months ahead. 

February 8, 2017 in Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (7)

Prez Trump talks crime and support for law enforcement with police chiefs . . . and says some interesting things

Prez Donald Trump gave this lengthy speech to a gathering of major city police chiefs, and he had a lot to say about crime and law enforcement toward its conclusion (after an extended Trumpian discussion of the litigation surrounding his travel executive order).  Here is some of what the Prez has to say on the crime front (with a few points of emphasis added based on what struck me as especially interesting):

Right now, many communities in America are facing a public safety crisis.  Murders in 2015 experienced their largest single-year increase in nearly half a century. In 2016, murders in large cities continued to climb by double digits. In many of our biggest cities, 2016 brought an increase in the number of homicides, rapes, assaults and shootings. In Chicago, more than 4,000 people were shot last year alone, and the rate so far this year has been even higher. What is going on in Chicago?

We cannot allow this to continue. We’ve allowed too many young lives to be claimed -- and you see that, you see that all over -- claimed by gangs, and too many neighborhoods to be crippled by violence and fear.  Sixty percent of murder victims under the age of 22 are African American. This is a national tragedy, and it requires national action. This violence must end, and we must all work together to end it.

Whether a child lives in Detroit, Chicago, Baltimore, or anywhere in our country, he or she has the right to grow up in safety and in peace. No one in America should be punished because of the city where he or she is born. Every child in America should be able to play outside without fear, walk home without danger, and attend a school without being worried about drugs or gangs or violence.

So many lives and so many people have been cut short.  Their potential, their life has been cut short. So much potential has been sidelined. And so many dreams have been shattered and broken, totally broken. It’s time to stop the drugs from pouring into our country. And, by the way, we will do that. And I will say this: General, now Secretary, Kelly will be the man to do it, and we will give him a wall.  And it will be a real wall. (Applause.) And a lot of things will happen very positively for your cities, your states, believe me. The wall is getting designed right now....

It’s time to dismantle the gangs terrorizing our citizens, and it’s time to ensure that every young American can be raised in an environment of decency, dignity, love and support. You have asked for the resources, tools and support you need to get the job done. We will do whatever we can to help you meet those demands. That includes a zero tolerance policy for acts of violence against law enforcement. (Applause.)  We all see what happens. We all see what happens and what’s been happening to you. It’s not fair.

We must protect those who protect us. The number of officers shot and killed in the line of duty last year increased by 56 percent from the year before. Last year, in Dallas, police officers were targeted for execution –- think of this. Who ever heard of this? They were targeted for execution. Twelve were shot and five were killed. These heroic officers died as they lived -– protecting the innocent, rushing into danger, risking their lives for people they did not even know, but for people that they were determined to save. Hats off to you people....

[I]nstead of division and disunity -- and which is so much disunity -- we must build bridges of partnership and of trust. Those who demonize law enforcement or who use the actions of a few to discredit the service of many are hurting the very people they say that they want to help. When policing is reduced, crime is increased, and our poorest citizens suffer the most. And I see it all the time. When the number of police goes down, crime goes up.

To build needed trust between law enforcement and the communities they serve, it is not enough for us to merely talk to each other. We must listen to each other. All of us share the view that those in uniform must be held to the highest possible standard of conduct -- so important. ...

That is why our commitment to law and law enforcement also includes ensuring that we are giving departments the resources they need to train, recruit and retain talent. As part of our commitment to safe communities, we will also work to address the mental health crisis.  Prisons should not be a substitute for treatment. We will fight to increase access to life-saving treatment to battle the addiction to drugs, which is afflicting our nation like never ever before -- ever. (Applause.)

I've been here two weeks. I've met a lot of law enforcement officials. Yesterday, I brought them into the Oval Office. I asked a group, what impact do drugs have in terms of a percentage on crime? They said, 75 to 80 percent. That's pretty sad. We're going to stop the drugs from pouring in. We're going to stop those drugs from poisoning our youth, from poisoning our people. We're going to be ruthless in that fight. We have no choice. (Applause.)

And we're going to take that fight to the drug cartels and work to liberate our communities from their terrible grip of violence. You have the power and knowledge to tell General Kelly -- now Secretary Kelly -- who the illegal immigrant gang members are. Now, you have that power because you know them, you're there, you're local. You know the illegals, you know them by their first name, you know them by their nicknames. You have that power. The federal government can never be that precise. But you're in the neighborhoods -- you know the bad ones, you know the good ones.

I want you to turn in the bad ones. Call Secretary Kelly's representatives and we'll get them out of our country and bring them back where they came from, and we'll do it fast. You have to call up the federal government, Homeland Security, because so much of the problems -- you look at Chicago and you look at other places. So many of the problems are caused by gang members, many of whom are not even legally in our country.

I saw a few folks tweeting concerns this morning about Prez Trump's statement that we are "going to be ruthless in that fight" against "drugs from poisoning our youth, from poisoning our people."  And, with coming likely confirmation of AG Jeff Sessions, there is a very reasonable basis for fearing that the Trump Administration is going to seek to double-down on old tough-and-tougher approaches to the drug war.  But given some of the other Trump comments highlighted here (particular the comment that "prisons should not be a substitute for treatment"), I am holding out at least some hope that some nuance will be a part of the particulars of any new Trumpian drug war offensive.

February 8, 2017 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (11)

New report details stability of California crime rates during period of huge sentencing reform

UntitledThis new Fact Sheet produced by the Center on Juvenile and Criminal Justice tells and interesting and important story about crime in California.  The main prose of the report provides the data highlights:

Newly released Federal Bureau of Investigation (FBI) statistics for the first six months of 2016 show California’s reported urban crime rate remained stable from 2010 through 2016, despite the implementation of large-scale criminal justice reforms during that period.

Total urban crime fell in the first half of 2016 compared to the first half of 2015.

The first six months of 2016 saw a decline in California’s urban crime rate compared to the first six months of 2015, though trends in specific crime categories were wide-ranging. During this period, reported crime declined 3 percent overall, driven by a 4 percent reduction in property offenses.  Burglary, arson, and theft decreased, while vehicle theft increased, resulting in approximately 7,400 fewer property offenses in early 2016.  At the same time, violent crime rose 4 percent, with total violent offenses increasing by approximately 2,800 from early 2015 to early 2016.1

The statewide urban crime rate stabilized from 2010 to 2016, after decades of decline.

Urban crime rates in California declined precipitously through the 1990s and 2000s (See Appendix A).  Since 2010, crime in California has stabilized, hovering near historically low levels. Comparing the first six months of 2016 to the first six months of 2010, total crime rates experienced no net change, while property crime declined by 1 percent and violent crime increased by 3 percent (see Table 1).

• Historically low urban crime rates have persisted through an era of justice reform.

Crime rates have remained low and stable through several major criminal justice reforms, particularly Public Safety Realignment and Proposition 47.  Realignment, which was enacted in 2011 through Assembly Bill 109, shifted responsibility for those with nonviolent, non-sexual, and non-serious convictions from the state to the county in an attempt to reduce prison populations.  In 2014, California voters passed Prop 47, which reduced six minor drug and property felonies to misdemeanors, prompting the resentencing and release of thousands from jails and prisons across the state. Though each policy was met with some initial concerns over public safety, a seven-year view of the data suggests that no visible change in crime resulted from Realignment (CJCJ, 2015). More data are needed before drawing conclusions about Prop 47’s effect on crime (CJCJ, 2016).

February 8, 2017 in Data on sentencing, National and State Crime Data, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

February 7, 2017

"How States Can Take a Stand Against Prison Profiteers"

The title of this post is the title of this paper newly posted to SSRN and authored by Catherine Elizabeth Akenhead. Here is the abstract:

In recent years, state corrections departments have faced pressure to provide better prison conditions, while simultaneously cutting costs.  Many critics have touted the emergence of privatized prison services as a cost-effective resolution.  However, those services shift the costs on to some of the poorest and most vulnerable consumers, prisoners and their families.  This Note explores how private companies providing prison banking services to state correctional facilities use unfair practices to increase profits.  The umbrella of prison banking services includes deposits into inmate trust accounts, which allow prisoners to purchase necessities, as well as prepaid debit release cards, which are used to return money to prisoners upon release.  This Note describes how certain private companies retain a monopoly on these services, and are awarded contracts based on the amount of commission paid to state correctional facilities.

As a result of paying those commissions and having no incentive to cut costs, private companies drive up their prices and charge consumers exorbitant rates to make deposits or to utilize prepaid cards.  These practices are disproportionately affecting prisoners’ families who provide their incarcerated loved ones with monetary support, as well as released inmates struggling to get back on their feet post-incarceration. Statistically speaking, both of these groups are more likely to be low-income and least able to manage additional financial strain.  This Note proposes state-level legislation to better protect consumers from these abuses and outlines five key provisions that, if adopted, will serve to prevent private companies from increasing their profit margins at the expense of vulnerable consumers.

February 7, 2017 in Prisons and prisoners, Who Sentences? | Permalink | Comments (7)

Prez Trump in sheriffs meeting expresses support for broad civil forfeiture police powers

This Washington Post report details the notable joke Prez Trump made regarding a state legislator who apparently wants to limit police civil forfeiture powers, and highlights the broader issues raised by the surrounding discussion.  Here are the details:

At a meeting on Tuesday with sheriffs from across the country, President Trump joked about destroying the career of an unnamed Texas state senator who supported curtailing a controversial police practice for seizing people's property....

Sheriff Harold Eavenson of Rockwall County, Tex., brought up the issue of civil asset forfeiture, which allows authorities to seize cash and property from people suspected, but in some cases never convicted or even charged, with a crime. Eavenson told Trump of a “state senator in Texas that was talking about legislation to require conviction before we could receive that forfeiture money.”

“Can you believe that?” Trump interjected. “And,” Eavenson went on, “I told him that the cartel would build a monument to him in Mexico if he could get that legislation passed.”

“Who's the state senator?” Trump asked. “Do you want to give his name? We'll destroy his career,” he joked, to laughter from the law enforcement officials in the room....

While many people are unfamiliar with the practice, asset forfeiture is widespread. In 2014, federal authorities alone seized over $5 billion from suspected criminals, more than the total losses to burglary that year. That number doesn't even count seizures conducted by state and local law enforcement. Critics of asset forfeiture policies say the broad leeway afforded to law enforcement officers in most states creates a system ripe for abuse....

A 2015 ACLU investigation found that Philadelphia police routinely seized what amounted to “pocket change” from some of the city's poorest residents. A 2014 Washington Post investigation found that police seized $2.5 billion in cash from motorists not charged with crimes as part of a federal program.

When told of the practice, a large majority of Americans are opposed to it. A December 2016 survey by YouGov and the libertarian Cato Institute found that 84 percent of Americans oppose taking “a person’s money or property that is suspected to have been involved in a drug crime before the person is convicted of a crime.”...

But law enforcement groups have been resolute in their support for the practice. They say seizing money from people not charged with crimes is sometimes necessary to protect public safety, particularly in cases where it may be hard to obtain a criminal conviction against a suspect.

Law enforcement groups often cast asset forfeiture as a tool for fighting drug kingpins and foreign drug cartels, as Sheriff Eavenson implied at the White House meeting. But reports of asset forfeiture abuse suffered by American citizens have become more common. Nonetheless, police have had great success in convincing state and federal lawmakers to uphold the practice.

President Trump has not spoken much about the practice, and the White House did not immediately return a request for comment. But Trump's nominee to lead the Justice Department, Sen. Jeff Sessions, has been an enthusiastic proponent of civil asset forfeiture. In a 2015 Senate hearing, Sessions said that “95 percent” of forfeitures involve suspects who have “done nothing in their lives but sell dope.”

February 7, 2017 in Criminal justice in the Trump Administration, Criminal Sentences Alternatives, Fines, Restitution and Other Economic Sanctions, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

"The Death Penalty & the Dignity Clauses"

The title of this post is the title of this notable new article by Kevin Barry, and here is its abstract:

“The question now to be faced is whether American society has reached a point where abolition is not dependent on a successful grass roots movement in particular jurisdictions, but is demanded by the Eighth Amendment.” Justice Thurgood Marshall posed this question in 1972, in his concurring opinion in the landmark case of Furman v. Georgia, which halted executions nationwide.  Four years later, in Gregg v. Georgia, a majority of the Supreme Court answered this question in the negative.

Now, 40 years after Gregg, the question is being asked once more.  But this time seems different. That is because, for the first time in our Nation’s history, the answer is likely to be yes.  The Supreme Court, with Justice Kennedy at its helm, is poised to declare the death penalty unconstitutional.  No matter what the Court’s answer, one thing is certain: dignity will figure prominently in its decision.

Dignity’s doctrinal significance has been much discussed in recent years, thanks in large part to the Supreme Court’s watershed decisions in United States v. Windsor and Obergefell v. Hodges, which struck down laws prohibiting same-sex marriage as a deprivation of same-sex couples’ dignity under the Fourteenth Amendment. Few, however, have examined dignity as a unifying principle under the Eighth and Fourteenth Amendments — which have long shared a commitment to dignity — and under the Court’s LGBT rights and death penalty jurisprudence, in particular, which give substance to this commitment. That is the aim of this Article.

This Article suggests that dignity embodies three primary concerns — liberty, equality, and life.  The triumph of LGBT rights under the Fourteenth Amendment and the persistence of the death penalty under the Eighth Amendment expose a tension in dignity doctrine: the most basic aspect of dignity (life) receives the least protection under the law.  Because dignity doctrine demands liberty and equality for LGBT people, it must also demand an end to the death penalty.  If dignity means anything, it must mean this.

In anticipation of the Court’s invalidation of the death penalty on dignity grounds, this Article offers a framework to guide the Court, drawn from federal and state supreme court death penalty decisions new and old, statistics detailing the death penalty’s record decline in recent years, and the Court’s recent LGBT rights jurisprudence.  It also responds to several likely counterarguments and considers abolition’s important implications for dignity doctrine under the Eighth Amendment and beyond.

February 7, 2017 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (11)

Might marijuana legalization "be inducing a crime drop" in US states?

The question in the title of this post is prompted by this notable new empirical article on SSRN titled "Crime and the Legalization of Recreational Marijuana" and authored by quartet of economists from the University of Bologna.  Here is the abstract:

We provide first-pass evidence that the legalization of the cannabis market across US states may be inducing a crime drop.  Exploiting the recent staggered legalization enacted by the adjacent states of Washington (end of 2012) and Oregon (end of 2014) we find, combining county-level difference-in-differences and spatial regression discontinuity designs, that the legalization of recreational marijuana caused a significant reduction of rapes and thefts on the Washington side of the border in 2013-2014 relative to the Oregon side and relative to the pre-legalization years 2010-2012.  We also find evidence that the legalization increased consumption of marijuana and reduced consumption of other drugs and both ordinary and binge alcohol.

Regular readers will not be surprised that I view the posting of this article as an excuse to provide a round-up of recent posts from my other blog, Marijuana Law, Policy and Reform:

February 7, 2017 in Marijuana Legalization in the States, National and State Crime Data, Pot Prohibition Issues | Permalink | Comments (3)

Florida legislature finally moving toward really fixing its capital procedures after Hurst

As reported in this AP article, "with death penalty cases grinding to a halt across the state, the Florida Legislature is finally taking its first — and probably only steps — to fix the law so prosecutors can resume cases once again." Here is more:

Legislators are moving ahead with a measure that would require a unanimous jury verdict in cases where the death penalty is being sought. Just a year ago legislators rejected the idea, but the state Supreme Court last October struck down a 2016 law that said the death penalty could be imposed after a 10-2 jury vote.

A Senate panel on Monday approved a bill requiring a unanimous jury verdict and a similar measure is being considered in the state House. The legislation could be among the first bills passed and sent to Gov. Rick Scott when the session officially kicks off in March.

"It is important that we have an orderly system of justice in place for both families of victims and individuals charged with serious crimes," said Sen. Randolph Bracy, an Ocoee Democrat who sponsored the bill. "This legislation removes ambiguity from our death penalty statute, which will help reduce delays in due process for all parties involved in death penalty cases."

Bracy's bill, however, doesn't address other questions raised by recent court decisions, including whether or not the state's nearly 400 current death row inmates deserve a new sentencing hearing if a jury did not unanimously recommend the death penalty. Katie Betta, a spokeswoman for Senate President Joe Negron, said he wants to keep the legislation narrow to get it passed quickly....

Bracy wanted to amend his bill so all current death row inmates would be treated the same but said he didn't have the votes to get the proposal adopted. Sen. Jeff Clemens, a Lake Worth Democrat, complained that legislators should be taking a comprehensive look at the death penalty to avoid having to deal with the issue year after year. But he said that some legislators are concerned they would look "weak" on the death penalty.

The Senate Criminal Justice Committee reported that there are more than 300 death penalty cases pending across the state, including 66 that are now ready for trial. Prosecutors have put some of these trials on hold while they wait for the Legislature to act.

February 7, 2017 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

February 6, 2017

"A Theory of Differential Punishment"

The title of this post is the title of this notable new paper authored by John Boeglin and Zachary Shapiro now available via SSRN. Here is the abstract:

A puzzle pervades the criminal law: Why is it that two offenders who behave identically are sentenced differently when one of them, due to circumstances beyond her control, causes a harmful result? Through first proposing a novel deconstruction of this question by separating theories of punishment into two broad categories (namely, offender-facing and victim-facing justifications for punishment), the Article demonstrates that results-based “differential punishment” in the criminal law can only be justified, if at all, by victim-facing theories.

The Article then makes its central claim: while victim-facing theories may be capable of justifying results-based punishment in respect to many types of offenses, there are three distinct classes of offenses for which everyone should agree that differential punishment is unjustified.  We conclude by showing how applying our framework would reduce the unnecessary incarceration of a significant class of criminal offenders, without sacrificing any legitimate goals of the criminal justice system.

February 6, 2017 in Offense Characteristics, Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (5)

Idaho judge includes celibacy for teen sex offender on intensive probation

As reported in this local article, after "sentencing a 19-year-old Twin Falls man to a year-long therapeutic prison program on a rape charge last week, a judge added an unusual caveat should the teen successfully complete the program and be placed on probation." Specifically:

“If you’re ever on probation with this court, a condition of that will be you will not have sexual relations with anyone except who you’re married to, if you’re married,” 5th District Judge Randy Stoker said.

The judge’s unusual proclamation was made during the sentencing of Cody Duane Scott Herrera, who pleaded guilty to the statutory rape of a 14-year-old girl in March 2015. Now, legal scholars are questioning whether the judge could hold Herrara to his warning.

Stoker said the condition would be put in place in part because Herrera told presentence investigators he’s had 34 sexual partners. “I have never seen that level of sexual activity by a 19-year-old,” Stoker said. Prosecutors also revealed Herrera, who could face more sex-related charges involving an underage girl, has had fantasies about a 13-year-old girl and watches pornography depicting rape.

The Idaho Department of Health and Welfare “did not designate Mr. Herrera as a sexual predator,” Stoker said during his sentencing, “though there seems to be an argument that could be made for that.”

The victim’s mother, making a victim-impact statement, certainly believed Herrera was a predator. “It was his intent from the beginning to take what he wanted from my 14-year-old child — her virginity,” the victim’s mother told the court. “And he stayed around until he got it from her. Cody will never understand what he has done to our family. Cody robbed her of her innocence. He destroyed the child left in her. This can never be returned.”

Stoker sentenced Herrera to an underlying prison sentence of five to 15 years, but suspended the sentence in favor of the year-long rider program. If Herrera successfully completes the program, he’ll be released to probation, and, according to Stoker, a life of celibacy unless he weds.

But that probation condition might be illegal or unenforceable, according to Shaakirrah R. Sanders, an associate professor at the University of Idaho College of Law. “I would suspect (a judge can’t do that),” Sanders said. “I think it infringes on his constitutional rights.” While judges “have quite a bit of discretion” in creating special probation terms, Sanders said, they can’t violate the federal or state constitution. “I think if he appealed, he would win,” Sanders said.

Twin Falls County Prosecutor Grant Loebs said he did think Stoker would be able to impose the probation condition.  “The judge has the ability to tell people to do or not do all sorts of things that are (otherwise) legal and constitutional,” Loebs said, pointing out that abstaining from alcohol is a condition of most probations.

“A judge’s purpose is to keep them from committing another offense,” Loebs said. “A judge has right to order things to keep him from doing that … I don’t think this goes beyond what a judge is allowed to do.”

I have personally always viewed probationary conditions that prohibit alcohol more than a bit suspect, but I know that they are regularly imposed and have often been upheld when sufficiently linked to the offense of conviction. With that background, I think the prosecutor here has a reasonable basis for arguing that this celibacy condition could be upheld if challenged. Then again, even though sex and alcohol often are linked, some significant distinctions might be made in this context were there to be legal appeals by the defendant here.

February 6, 2017 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)

The hardest of cases for death penalty abolitionists: convicted murderer who keeps murdering while in prison

This local news report of an apparent murder by an Ohio inmate already convicted in two other murders serves as a reminder that there are limits on how much you can incapacitate some persons who seem intent on being violent.  The article is headlined "Two-time murderer suspected of killing another inmate, " and here are the ugly details:

A two-time murderer is suspected of killing another inmate, a Franklin County man, aboard a prison transport bus while it traveled south on Rt. 23 from Columbus on Wednesday evening.  The body of David L. Johnson, 61, was found in the Ohio Department of Rehabilitation and Correction bus on Thursday evening when it stopped to deliver him to the Ross Correctional Institution, said Ross County Prosecutor Matthew Schmidt.

Johnson, who was serving an eight-year sentence for sexual battery, apparently was strangled; Casey Pigge, 28, is "absolutely the suspect" in the death, Schmidt said. Other inmates also were locked into a caged section of the bus with Johnson and Pigge, but apparently did not alert the guards and driver at the front of the bus of the assault, Schmidt said. The guards apparently cannot see back into all sections of the bus, he said.  The inmates were wearing handcuffs, and perhaps belly chains, but could move around, the prosecutor said.

Inmates, including from the Southern Ohio Correctional Facility near Lucasville and the Ross Correctional Institution near Chillicothe, were taken aboard the bus to Columbus for medical treatment on Thursday and were on the return leg of the trip south when the apparent slaying occurred.

Pigge is serving a 30-year to life sentence at the Lucasville prison for the 2008 murder of Rhonda Sommers, 52, the mother of his then-girlfriend. Pigge was convicted of stabbing the woman and then setting her apartment on fire.  Last week, Pigge pleaded guilty to using a cement block last year to repeatedly strike to kill his cellmate, Luther Wade, 26, of Springfield, at the Lebanon Correctional Institution in Warren County. Wade, serving a 10-year sentence for aggravated burglary, was repeatedly struck in the head. Pigge faces another life sentence in the slaying.

Schmidt... questioned Pigge having access to other inmates aboard the bus given his history of violence. Investigators are working to determine if Johnson died in Franklin County, Pickaway County or Ross Country as the bus traveled south, Schmidt said. "He crushed his cellmate's head with a cinder block. You would think the sensible thing to do would be to make sure he doesn't have free access to other inmates at any time.  Apparently that is not an issue for the folks at DRC," Schmidt said.

Given that Pigge is seemingly due to get an LWOP sentence for previously having "crushed his cellmate's head with a cinder block," he would be essentially getting a "free" murder if he were not at least potentially subject to something worse than LWOP for his latest murder.  Moreover, given than Pigge has now slaughtered two fellow inmates during his first decade of incarceration, the only real public safety options for him would seem to be long-term solitary confinement or the death penalty. 

I am not asserting that folks like Pigge make the death penalty a must, but I am saying that it seems quite difficult to figure out what a just and effective punishment is for a murderer who seems keen and able to keep killing even while incarcerated.

February 6, 2017 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (8)

"Why we should free violent criminals"

The title of this post is the headline of this Boston Globe commentary authored by By David Scharfenberg. Here are excerpts:

The drug war, [some experts] say, is not the major force behind America’s huge prison growth over the last several decades. In fact, less than 20 percent of the country’s 1.5 million prisoners are serving time for such offenses. Free them all tomorrow, and the United States would still have the largest prison population in the world — larger than Russia, Mexico, and Iran combined.

Violent crime is a much more important driver, with almost half of prisoners doing time for offenses like murder and robbery. To make a real dent in mass incarceration, experts say, the country will have to do the difficult work of freeing more of these criminals sooner. “We put all of our attention — almost all of our attention — on things that aren’t nearly as important as the things we ignore,” says Fordham Law School professor John Pfaff, author of the forthcoming book “Locked In: The True Causes of Mass Incarceration and How to Achieve Real Reform.”

Pfaff says the criminal justice reform movement had to start with talk of greater leniency for nonviolent offenders.  It couldn’t leap right to a discussion of, say, cutting murderers’ sentences down to a European-style 10 years. But now, he says, it’s time for something more. Not all “violent crime” is as serious as the phrase would imply. In some states, burglarizing a house when no one is home is considered a violent offense. And what about the 18-year-old robber who was carrying a gun but didn’t actually use it?

As for long sentences, it’s true that they play a role in driving prison growth.  “Three strikes” laws, mandatory minimums, and other tough-on-crime measures have increased time served for all kinds of offenders — pot dealers and violent criminals alike.  A Pew analysis of state prison data showed that prisoners released in 2009 served 36 percent longer than those who were released in 1990.

But at three years, the average prison term is shorter than the conventional wisdom would suggest. Pfaff argues that the real concern is not sentence length, but serving any time in prison at all. Whether you serve 12 or 16 months, he says, the impact is the same. Upon release, convicted felons have a hard time getting decent jobs or good housing. And with the odds heavily stacked against them, they’re more likely to reoffend.

The criminal justice reform movement, Pfaff argues, needs a reorientation — and a willingness to show mercy for prisoners beyond the proverbial nonviolent drug offender.  That means diverting more people — whatever their offenses — away from the system, thereby sparing them from a criminal record. And there’s only one way to do that, he says: Change the behavior of the most powerful actor in the criminal justice system, the prosecutor....

Over the last couple of decades, Pfaff’s research shows, they’ve become ever-more aggressive about seeking jail time. In the mid-’90s, prosecutors filed felony charges against about one in three arrestees.  By 2008, it was more like two in three. Why are prosecutors getting more aggressive? Maybe because they’re more politically ambitious, Pfaff theorizes. They may think a tough-on-crime record can be parlayed into a run for higher office. Or maybe the police are developing stronger cases, using more surveillance-camera footage, for example.

Whatever the cause, the impact has been enormous.  The push to file more felony charges, Pfaff writes in his forthcoming book, is the single most important factor in the growth in prison admissions since crime started dropping in the early-’90s.  One solution: legislate a reduction in prosecutorial power.  Pfaff suggests creating detailed charging guidelines that would force prosecutors to steer more offenders away from the prison system.

Getting that sort of thing on the books will be difficult though; prosecutors have substantial clout in state legislatures and don’t want to see their power diminished . Which is why advocates may have better luck urging district and state attorneys’ offices to change from within and produce more flexible prosecutors.

February 6, 2017 in Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (9)

Setting my DVR for "Solitary: Inside Red Onion State Prison"

HBO is premiering a notable new documentary tonight, "Solitary: Inside Red Onion State Prison." Here is how HBO describes the movie:

Located on an Appalachian mountaintop in Wise County, Va., Red Onion State Prison is a “supermax” facility built to house individual inmates in 8’x10’ solitary-confinement cells, 23 hours a day, for months, years and sometimes decades.  Directed by Kristi Jacobson, Solitary: Inside Red Onion State Prison explores life on both sides of the bars, raising provocative questions about punishment in America today.

Drawing on unprecedented, unrestricted access, Solitary: Inside Red Onion State Prison was filmed over the course of one year, chronicling a new reform program intended to reduce the number of solitary-confinement inmates.  The recently initiated “Step-Down Program” has allowed more than 350 inmates a chance to return to the general population.  But all too often, after months of solitary isolation, prisoners are ill-equipped to deal with the stresses of being a part of the regular prison population – let alone life on the outside.

This unflinching, immersive documentary features intimate interviews with several inmates who reflect on their violent childhoods, open up about the dangers of prison life and articulate their struggles to maintain sanity in the unrelenting monotony and isolation of confinement.  Interwoven with these stories are observations of corrections officers, who describe the toll their stressful jobs can take in a community with few employment opportunities.

Solitary: Inside Red Onion State Prison captures the chilling sounds and haunting atmosphere of daily life at Red Onion, focusing on the effect of loneliness and isolation on the prisoners’ mental health. 

The filmmaker website has this little blurb to describe the movie:

SOLITARY is a daring exploration of the lives of inmates and corrections officers in one of America's most notorious supermax prisons, built to hold inmates in 8x10 cells, 23-hours-a-day, for months, years and sometimes decades.  With unprecedented access, the film captures a complex, unexpected and deeply moving portrait of life inside.

February 6, 2017 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

Questions raised about Judge Gorsuch's law school work for Harvard Defenders and PLAP

The night Prez Trump nominated Judge Neil Gorsuch to be on the Supreme Court, I noted in this post that I found it notable that Prez Trump stated that "[w]hile in law school, he demonstrated a commitment to helping the less fortunate [by having] worked in both Harvard Prison Legal Assistance Projects and Harvard Defenders Program."  But this Wall Street Journal article, headlined "Few Recall Gorsuch’s Volunteer Work at Harvard: Questions arise over Trump Supreme Court pick’s level of participation in programs to help less fortunate while in law school," raises questions about the scope and significance of Judge Gorsuch's work in these organizations:

When President Donald Trump introduced his Supreme Court pick on live television last week, he said Neil Gorsuch had “demonstrated a commitment to helping the less fortunate” by working in the Harvard Prison Legal Assistance Project and the Harvard Defenders.  His affiliation with these volunteer programs — which offer law school students real-life legal experience representing prison inmates and the poor — helped give Mr. Gorsuch’s deeply conservative résumé a personal touch, and the groups were highlighted in news reports about his nomination.

But roughly three dozen students who participated in the two programs while Mr. Gorsuch was at Harvard Law School from 1988 to 1991 said they have no recollection of his involvement. “If he was active in PLAP I am sure I would remember him,” said Elizabeth Buckley Lewis, who attended Harvard at the same time as Mr. Gorsuch. Now a New York City tax lawyer who advises nonprofits, she said PLAP was her “most meaningful experience” at Harvard.

The White House gave The Wall Street Journal the name of one Harvard Law School graduate who said he could corroborate that Judge Gorsuch was in the Defenders, but declined to give any details of the judge’s participation.  The White House also provided copies of a 2008 email exchange between the Defenders’ alumni director and Judge Gorsuch.

Two people who broadly oversaw the students during this period said they had no memory of Judge Gorsuch’s involvement, a third one declined to say, and a fourth died in 1998. Other Harvard classmates and friends of Mr. Gorsuch say they have no recollection of him discussing either program. Memories can fade over 25 years, and the programs demanded no specific time commitment. Mr. Gorsuch didn’t respond to emailed questions.

The White House referred The Wall Street Journal to Chris Edel, a New York County prosecutor who said he attended a few weeks of training for the Defenders program with Judge Gorsuch in either 1990 or 1991.  They also lived together and were members of the Lincoln’s Inn Society, a social club. “What I am prepared to do is corroborate that Neil Gorsuch was in the Harvard Defenders,” said Mr. Edel. “I have a specific recollection of talking to him about one case, but I don’t want to go into the details…I’d like to leave it there.” Mr. Edel recalled one other classmate in the program. David E. Nahmias, now a Georgia Supreme Court justice. Mr. Nahmias said he didn’t remember whether Mr. Gorsuch was involved in the Defenders.

In PLAP, students represent inmates at disciplinary and parole hearings.  Defenders provide representation to indigent defendants.  In both cases, students are guided by more experienced students and by supervising attorneys. PLAP and Defenders are volunteer programs and students don’t earn credit, so participation isn’t reflected on Harvard’s transcripts....

Not every official bio of Mr. Gorsuch names his involvement with the groups. But they are included in a biography posted online by President George W. Bush’s White House after the judge’s 2006 confirmation to a federal appeals court, as well as a White House press release at the time.

On a Senate questionnaire in connection with the 2006 judicial appointment, Mr. Gorsuch answered a question about “serving the disadvantaged” in part by saying he had done pro bono work beginning in law school, citing the two programs. He said he helped Massachusetts inmates “with respect to, among other things, hearings on disciplinary actions taken against them” and represented “defendants in criminal proceedings in Massachusetts state courts.” Mr. Gorsuch didn’t go further, despite the questionnaire’s request that nominees “describe specific instances and the amount of time devoted to each.”

Mr. Gorsuch was among the recipients of a Nov. 2, 2008, email sent to 124 alumni of the Defender program by Alicia Reed, then the alumni director of the Defenders, who was seeking volunteers to mentor Harvard students. Mr. Gorsuch, by then serving as an appeals court judge in Denver, responded the following day: “I don’t know if I can be of much help this far away from Cambridge, but if I can please do let me know. I found Defenders to be a very rewarding experience.” 

Upon seeing the headline of the Wall Street Journal article, I was tempted to accuse Prez Trump of peddling "fake news" when he stressed Judge Gorsuch's involvement with these programs. But it seems that Prez Trump was only repeating a claim that Prez Bush made that it seems was reasonable based on reports by Judge Gorsuch himself. And my guess based on this WSJ reporting is that the Judge was involved in a few cases with both of these groups, but never made work with the groups a centerpiece of his Harvard Law experience the way that some other students did.  My experiences a few years later with a could volunteer activities at Harvard Law was similar — e.g., for one journal and the newspaper, I was only involving in a few editing assignments  — and I am sure that those who were most involved in those particular activities would not recall my limited involvement.  

Prior related post:

February 6, 2017 in Who Sentences? | Permalink | Comments (5)