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March 10, 2018

Trump Administration reportedly looking (seriously?) at the death penalty for serious drug dealers

In reported in prior posts here and here, Prez Trump has reportedly talked privately about how drug dealers are as bad as serial killers and has talked publicly about using the "ultimate penalty" to address drug problems. Now according to this new Washington Post article, headlined "Trump administration studies seeking the death penalty for drug dealers," these musings by President Trump are now a policy proposal being seriously examined by the administration:

The Trump administration is studying new policy that could allow prosecutors to seek the death penalty for drug dealers, according to people with knowledge of the discussions, a sign that the White House wants to make a strong statement in addressing the opioid crisis.

President Trump last week suggested executing drug dealers as a way to make a dent in opioid addiction. Opioids killed nearly 64,000 people in 2016, and the crisis is straining local health and emergency services.

People familiar with the discussions said that the president’s Domestic Policy Council and the Department of Justice are studying potential policy changes and that a final announcement could come within weeks. The White House has said one approach it might take is to make trafficking large quantities of fentanyl — a powerful synthetic opioid — a capital crime because even small amounts of the drug can be fatal. White House officials also are studying tougher noncapital penalties for large-scale dealers.

Trump said last week that the administration would soon roll out unspecified “strong” policies on opioids. White House officials said Trump has privately expressed interest in Singapore’s policy of executing drug dealers. “Some countries have a very tough penalty, the ultimate penalty, and they have much less of a drug problem than we do,” Trump said during an appearance at a White House summit on opioids last week.

Trump also has endorsed Philippine President Rodrigo Duterte’s approach to the issue; Duterte’s “drug war” has led to the deaths of thousands of people by extrajudicial police killings. Last year, Trump praised Duterte in a phone call for doing an “unbelievable job on the drug problem,” according to the New York Times. Kellyanne Conway, counselor to the president, is leading much of the work on opioids for the White House. Singaporean representatives have briefed senior White House officials on their country’s drug policies, which include treatment and education, but also the death penalty, and they provided a PowerPoint presentation on that country’s laws.

Singapore’s model is more in line with the administration’s goals for drug policy than some other countries, a senior administration official said. “That is seen as the holistic approach that approximates what this White House is trying to do,” a senior administration official said....

Federal law currently allows for the death penalty to be applied in four types of drug-related cases, according to the Death Penalty Information Center: murder committed during a drug-related drive-by shooting, murder committed with the use of a firearm during a drug trafficking crime, murder related to drug trafficking and the death of a law enforcement officer that relates to drugs.

Peter H. Meyers, a professor at the George Washington University School of Law, said he doesn’t agree with the idea of adding more capital crimes for drug dealers, but he said it could be a legal approach: “It very likely would be constitutional if they want to do it.”

The administration’s directives come as prosecutors nationwide are cracking down on higher-level drug dealers and law enforcement officials are looking at increased penalties for fentanyl trafficking and dealing. But at the same time, public health officials — including those in the Trump administration — and many in law enforcement are emphasizing treatment rather than punitive measures for low-level users and those addicted to drugs.

Attorney General Jeff Sessions has directed federal prosecutors to pursue the most severe penalties for drug offenses.  The Department of Justice said last year it will aggressively prosecute traffickers of any fentanyl-related substance.

If (when?) we see a serious formal death penalty proposal for drug dealers, I will have a lot more to say on the topic. For now, I will be content with three "hot takes" (with number 3 to get a lot more attention if this discourse continues):

1. It is not at all clear that death sentences for drug dealers, even for those whose drugs cause multiple deaths, would be constitutional; it is entirely clear that the issue would be litigated extensively and would have to be definitively decided by the US Supreme Court.

2. If Prez Trump is truly interested in "executing drug dealers" rather than just sending them to death row, he needs to get his Justice Department to get serious about trying to actually execute some of the five dozens murderers languishing  on federal death row (some of whom have been on federal death row for two decades or longer).  

3. If the White House (and/or Attorney General Sessions) is seriously interested in a legislative proposal to make the "worst of the worst" drug dealers eligible for the death penalty, I would seriously urge Senate Judiciary Chair Chuck Grassley to consider adding the proposal to his Sentencing Reform and Corrections Act as part of an effort to get the White House and AG Sessions to support that bill.  Even if drafted broadly, any federal "death penalty for drug dealers" law would likely only impact a few dozen cases per year, whereas the SRCA will impact tens of thousands of cases every year.  And the SRCA could help tens of thousands of least serious drug offenders while any death penalty bill would impact only the most serious drug offenders.

Prior related posts:

UPDATE: Not long after this posting, Prez Trump gave a speech in Pennsylvania that, as reported in this new Washington Post piece, covered this ground and received a positive response for the audience:

President Trump on Saturday again called for enacting the death penalty for drug dealers during a rally meant to bolster a struggling GOP candidate for a U.S. House seat here. During the campaign event in this conservative western Pennsylvania district, the president also veered off into a list of other topics, including North Korea, his distaste for the news media and his own election victory 16 months ago.

Trump said that allowing prosecutors to seek the death penalty for drug dealers — an idea he said he got from Chinese President Xi Jinping — is “a discussion we have to start thinking about. I don’t know if this country’s ready for it.”

“Do you think the drug dealers who kill thousands of people during their lifetime, do you think they care who’s on a blue-ribbon committee?” Trump asked. “The only way to solve the drug problem is through toughness. When you catch a drug dealer, you’ve got to put him away for a long time.”

It was not the first time Trump had suggested executing drug dealers. Earlier this month, he described it as a way to fight the opioid epidemic. And on Friday, The Washington Post reported that the Trump administration was considering policy changes to allow prosecutors to seek the death penalty.

But on Saturday his call for executing drug dealers got some of the most enthusiastic cheers of the night. As Trump spoke about policies on the issue in China and Singapore, dozens of people nodded their heads in agreement. “We love Trump,” one man yelled. A woman shouted: “Pass it!”

March 10, 2018 in Criminal justice in the Trump Administration, Death Penalty Reforms, Drug Offense Sentencing | Permalink | Comments (6)

Iowa Supreme Court issues latest major ruling on juve sentencing limits and process after Miller

As reported in this local article, the "Iowa Supreme Court on Friday offered guidance to judges for interpreting a 2015 law that lays out sentencing guidelines for juveniles convicted of murder."  Here is more from the press report about the latest in a series of rulings following up on the US Supreme Court's juve sentencing jurisprudence:

Some justices also signaled in concurring opinions that they believe rigid sentences for other crimes committed by juveniles should eventually be rolled back.

The court ruled Friday in a murder case in which Rene Zarate stabbed Jorge Ramos to death in 1999, when Zarate was 15.  Zarate, now 34, originally received a mandatory sentence of life without parole, but requested a resentencing hearing after a 2012 U.S. Supreme Court ruling prohibited such sentences for juveniles.  His new sentence makes him eligible for parole after 25 years, with credit for time served.

Zarate challenged his sentence as well as the constitutionality of a 2015 Iowa law that revised how juveniles who commit first-degree murder are sentenced. Under the law, the sentencing judge could choose from a variety of options including life without the possibility of parole, life with parole after a certain amount of the sentence is served, and life with the immediate possibility of parole.  The law further outlined 25 factors for the court to take into consideration when sentencing juveniles for murder.

In 2016, after that law was passed, the Iowa Supreme Court found that life sentences without parole are unconstitutional for juveniles.  But Friday's ruling was the first time the Iowa Supreme Court addressed the new law. A majority of justices said Friday that the guidelines laid out in the law are constitutional — except for the subsection that allowed for life sentences without parole....

They said judges must give juvenile offenders an individualized hearing taking the circumstances of the case into account, and must consider as mitigating factors things such as the offender's age at the time of the crime, family and home environment and the possibility for rehabilitation and change. But the district court judge who re-sentenced Zarate did so based on his belief that anyone that anyone who takes the life of another individual should spend a certain amount of time in prison, according to the opinion joined by four of the seven justices. "The sentencing judge allowed the nature of Zarate’s offense to taint his analysis by imposing a mandatory minimum sentence of imprisonment due to his belief that there should be a minimum term of imprisonment for anyone who commits murder, regardless of their age at the time of the offense," Justice Bruce Zager wrote in the majority opinion....

The court's remaining three justices issued separate concurrences urging the court to go further in striking down mandatory minimums for juveniles as unconstitutional. Justice Brent Appel, who authored the court's earlier opinion against life sentences without parole for juveniles, said it's time to re-examine the constitutionality of all mandatory minimum sentences for minors who commit crimes. "Instead of imposing mandatory minimums through an unreliable judicial guess, the constitutionally sound approach is to abolish mandatory minimum sentences on children and allow the parole board to make periodic judgments as to whether a child offender has demonstrated maturity and rehabilitation based on an observable track record," Appel wrote in his concurrence.

Justice Daryl Hecht, writing a concurrence joined by Justice David Wiggins, wrote that he believes mandatory minimums for juveniles are categorically prohibited by the Iowa Constitution. "Whether imposed by legislative mandate or by a sentencing court, the constitutional infirmity of mandatory minimum sentences for juvenile offenders is the same in my view," Hecht wrote.

The full opinion in Iowa v. Zarate, No. 15-2203 (Iowa Mar. 9, 2018), which rests much of its constitutional analysis on the Iowa Constitution's prohibition against cruel and unusual punishment (rather than the US Constitution's Eighth Amendment), is available at this link.

March 10, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Prez Trump issues his second pardon; Kristian Saucier, whom prosecutors sought imprisoned for six years, served year for taking photos in classified sub room

I am pleased to report that President Donald Trump is continuing to make use of his clemency power during the first part of his first term.  A relatively high-profile case is yet again the subject of his activity, as reported in this Politico article headlined "Trump pardons sailor in submarine photos case." Here are the details:

President Donald Trump has pardoned a Navy submariner sentenced to prison for taking photos inside the classified engine room of a nuclear submarine, the White House announced on Friday.

Petty Officer First Class Kristian Saucier pleaded guilty in May 2016 to two felony counts, one for unlawful retention of national defense information and another for obstruction of justice, for taking cellphone pictures inside the Navy vessel and later destroying his own equipment upon learning he was under investigation.

“The president has pardoned Kristian Saucier, a Navy submariner,” White House press secretary Sarah Huckabee Sanders announced at a briefing with reporters. The Justice Department later confirmed the move. Sanders added that “the president is appreciative of Mr. Saucier's service to the country.”

The move marked just the second pardon Trump has granted since entering office, with the first extended in August to Joe Arpaio, the former Arizona sheriff who was convicted of criminal contempt of court in a case involving his tactics targeting undocumented immigrants.

Saucier was sentenced to 12 months in prison for mishandling classified information. Critics have cited the episode to allege a double standard in how low- and high-ranking U.S. officials handle sensitive material. The president brought the case back into public view in January, when he compared the treatment of Saucier with that of his former electoral opponent Hillary Clinton and her top campaign officials....

Prosecutors had sought a much steeper sentence for the former Navy machinist, calling for him to face six years in prison, but the judge gave a more lenient sentence, a point the White House highlighted in announcing his pardon. “The sentencing judge found that Mr. Saucier’s offense stands in contrast to his commendable military service,” Sanders noted.

Though I would like to see Prez Trump issuing many more clemency grants, particularly in lower-profile cases, I remain quite pleased that Prez Trump is continued to use his clemency powers more during his first three years in office than did the last three presidents combined.

Related post on prior clemency grants:

March 10, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (7)

March 9, 2018

Federal judges fives "Pharma Bro" Martin Shkreli (waaaaaay-below-guideline) sentence of 7 years

As reported in this AP piece, "Martin Shrkeli, the smirking “Pharma Bro” vilified for jacking up the price of a lifesaving drug, was sentenced Friday to seven years in prison for defrauding investors in two failed hedge funds."  Here is more on what seems like a pretty interesting sentencing hearing:

The self-promoting pharmaceutical executive notorious for trolling critics online was convicted in a securities fraud case last year unconnected to the price increase dispute.

Shkreli, his cocky persona nowhere to be found, cried as he told U.S. District Judge Kiyo Matsumoto he made many mistakes and apologized to investors. “I want the people who came her today to support me to understand one thing, the only person to blame for me being here today is me,” he said. “I took down Martin Shkreli.” He said that he hopes to make amends and learn from his mistakes and apologized to his investors. “I am terribly sorry I lost your trust,” he said. “You deserve far better.”

The judge insisted that the punishment was not about Shkreli’s online antics or raising the cost of the drug. “This case is not about Mr. Shkreli’s self-cultivated public persona ... nor his controversial statements about politics or culture,” the judge said, calling his crimes serious.  He was also fined $75,000 and received credit for the roughly six months he has been in prison.  The judge ruled earlier this week that Shkreli would have to forfeit more than $7.3 million in a brokerage account and personal assets including his one-of-a-kind Wu-Tang Clan album that he boasted he bought for $2 million.  The judge said the property would not be seized until Shkreli had a chance to appeal.

Prosecutors argued that the 34-year-old was a master manipulator who conned wealthy investors and deserved 15 years in prison.  His lawyers said he was a misunderstood eccentric who used unconventional means to make those same investors even wealthier.  Attorney Benjamin Brafman told Matsumoto Friday that he sometimes wants to hug Shkreli and sometimes wants to punch him in the face , but he said his outspokenness shouldn’t be held against him.  He said he deserved a sentence of 18 months or less because the investors got their money back and more from stock he gave them in a successful drug company.”...

Before sentencing him, the judge said that it was up to Congress to fix the issue of the HIV price-hike.  And she spoke about how his family and friends “state, almost universally, that he is kind and misunderstood” and willing to help others in need. S he said it was clear he is a “tremendously gifted individual who has the capacity for kindness.”

She quoted from letters talking about generous acts like counseling a rape victim, teaching inmates math and chess, and funding family members.  The defense had asked the judge to consider the letters in its case for leniency, including professionals he worked with who vouched for his credentials as a self-made contributor to pharmaceutical advances.

Other testimonials were as quirky as the defendant himself.  One woman described how she became an avid follower of Shkreli’s social media commentary about science, the pharmaceutical industry, but mostly, about himself.  She suggested that those who were annoyed by it were missing the point.  “I really appreciate the social media output, which I see on par with some form of performance art,” she wrote.

Another supporter said Shkreli’s soft side was demonstrated when he adopted a cat from a shelter — named Trashy — that became a fixture on his livestreams.  Another letter was from a man who said he met Shkreli while driving a cab and expressed his appreciation at how he ended up giving him an internship at one of his drug companies.

In court filings, prosecutors argued that Shkreli’s remorse about misleading his investors was not to be believed. “At its core, this case is about Shkreli’s deception of people who trusted him,” they wrote.

Prior related posts:

March 9, 2018 in Booker in district courts, White-collar sentencing | Permalink | Comments (11)

"The Reintegrative State"

The title of this post is the title of this timely paper authored by Joy Radice that has just been posted to SSRN.  Here is its abstract

Public concern has mounted about the essentially permanent stigma created by a criminal record. This is no small problem when the U.S. criminal history database currently stores seventy-seven million criminal records, and poor people and people of color constitute a severely disproportionate number of them.  A criminal record makes it harder for people to find housing, get hired, attend college, and reunite with their families.  Yet these very things have the greatest chance of helping people lead law-abiding lives and reducing recidivism.  Scholars, legislators, and advocates have confronted this problem by arguing for reforms that give people with a conviction a second chance.  States have responded.  By one count, from 1994 to 2014, over forty state legislatures passed 155 statutes to mitigate the civil collateral consequences of a criminal record.  Although states have recognized that they have an interest in reintegrating their citizens with convictions, most people with criminal records cannot return to full citizenship.  The stigma of a conviction follows them for a lifetime, even for the most minor crimes.

This Article takes a systematic look at state reforms and integrates them into a more workable and effective whole, which I call the Reintegrative State.  It makes four contributions to the growing literature on collateral consequences and criminal records.  First, it argues that there is a state interest, if not obligation, to create an intentional and sequenced process to remove civil legal disabilities triggered by a conviction and to mitigate the permanency of public criminal records.  Second, this Article argues that reintegrating people with convictions back into society is consistent with the state’s interest in punishment and public safety, especially in light of criminology research showing that a significant number of people stop committing crimes.  Third, it critiques current state experiments with reentry initiatives as piecemeal, discretionary, inadministrable, and limited to a narrow segment of people with criminal records.  Fourth and finally, this Article argues that the state can and should be the external force that destigmatizes a person with a conviction by reestablishing that person’s legal status.  To do so effectively, the state must incorporate reintegration approaches throughout the criminal justice system — not just after sentencing or after release.  The Reintegrative State envisions a holistic framework for helping those with criminal records re-assimilate into society.

March 9, 2018 in Collateral consequences, Purposes of Punishment and Sentencing, Race, Class, and Gender, Reentry and community supervision | Permalink | Comments (1)

"Can We Wait 75 Years to Cut the Prison Population in Half?"

The title of this post is the title of this short "Policy Brief" from The Sentencing Project.  Here is how it starts and concludes:

The U.S. prison population grew by more than 600% between 1973 and 2009 — from 200,000 people to 1.6 million.  Tough-on-crime policies expanded the number of imprisoned people even while crime rates plunged to 40% below their levels in the 1990s.  In recent years, policymakers and criminal justice professionals have implemented reforms to correct the punitive excesses of the past.  By yearend 2016 the number of people held in U.S. prisons had declined by 6% since a 2009 peak, and crime rates have continued to decline.

But the overall impact of reforms has been quite modest. With 1.5 million people in prison in 2016, the prison population remains larger than the total population of 11 states.3 If states and the federal government maintain their recent pace of decarceration, it will take 75 years — until 2093 — to cut the U.S. prison population by 50%.  Expediting the end of mass incarceration will require accelerating the end of the Drug War and scaling back sentences for serious crimes....

Just as mass incarceration was developed primarily as a result of changes in policy, not crime rates, so too has decarceration reflected changes in both policy and practice.  These have included such measures as drug policy sentencing reforms, reduced admissions to prison for technical parole violations, and diversion options for persons convicted of lower-level property and drug crimes.

The movement to end mass incarceration not only faces political reluctance to meaningfully reduce the U.S. prison population, it has also had to address renewed calls to further expand the prison population, including: increasing prison terms for immigration law violations, reversals of Obama-era reforms in federal sentencing, and punitive responses to the opioid crisis.  While defending the progress made in recent years, we must also strive for criminal justice reforms bold enough to tackle mass incarceration.

March 9, 2018 in Drug Offense Sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (2)

March 8, 2018

You be the sentencing juror: what punishment for deadly drunk driving by Texas State college student?

UntitledThe question in the title of this post is prompted by this local article in Texas, headlined "‘I’m guilty’: Former Texas State student testifies in deadly DWI crash," which highlights that in the Lone Star State jurors are sometimes called to serve as primary sentencers in non-capital cases.   Here are some case particulars via the local press piece:

When Shana Elliott took the stand Thursday morning, she admitted: “I’m guilty.” Elliott, 22, says she was intoxicated and should not have been driving the evening of Aug. 2, 2016, after a day of tubing on the San Marcos River. “We decided to go float the river, we weren’t thinking ahead, we didn’t plan who was going to be driving,” Elliott said on the stand. “The float ended around 5 and that’s when nobody else was going to drive and I decided that I would.”

On that day, Elliott, who was 21 years old at the time, allegedly drove drunk and ran head-on into a car on State Highway 21 killing 23-year-old Fabian Guerrero Moreno and injuring his pregnant wife, Kristian Nicole Guerrero. Guerrero was five months pregnant. The unborn child did not survive.

Elliott says before the crash she dropped her friends off at their homes then decided to drive home herself. “It’s really blurry, I just remember as soon as the accident happened, I know that I made the worst decision ever.”

She says she got out of her car at the scene of the crash and ran to the other vehicle. “I just remember fighting, I wanted to go to make sure they were okay,” she said. “I’m sorry. I accept responsibility and I know what I did was wrong.”

At Elliott’s home, investigators found meth, heroin and a large bag of marijuana.  On the stand Elliott admitted to being addicted to heroin at one time, she said she smoked marijuana, but never did meth. She says after a previous arrest for drugs she had plans to sober up.

While Elliott was on the stand, prosecutors presented a large bottle of alcohol that was found at the crash site.  Elliott told the jury it was hers, adding it was full before she and her friends began floating the river.

Prosecutors also played recordings of phone calls Elliott made from jail. In one of the recordings, Elliott is talking with her boyfriend, speculating the other victims of the crash were part of the cartel. In another recording, Elliott can be heard joking and laughing with her friends about getting her eyebrows threaded in jail just four days after the crash.

Elliott’s grandmother Eleanor Brumley also took the stand Thursday morning. “She was determined to make something of herself,” said Brumley. “I’ve always been proud of her.” Brumley describes Elliot’s childhood as difficult. She says her father died of a heart attack and her stepdad was an alcoholic and was abusive mentally and emotionally. “Shana would deal with that and walk out the door with a smile on her face. She didn’t complain. She’s always thinking of everybody else,” said Brumley.

Elliott says she tried to deal with the abuse herself, but when she arrived at college she sought psychiatric help through a doctor at Texas State University.  She claims the doctor diagnosed her with depression, anxiety and slight PTSD stemming from her difficult childhood.

At the time of the crash, Elliott was a senior at Texas State University. Records show her blood alcohol content was .199 at the hospital.  On Monday, Elliott entered a plea of guilty for two counts of intoxication manslaughter and intoxication assault. The jury is expected to decide her punishment this week.

UPDATE: This local article reports on the jury's sentencing decision:

Shana Elliott, a former Texas State University student, was sentenced to seven years in prison Friday afternoon on each count in the deaths of a man and his unborn child.... Elliott, who pleaded guilty Monday, received seven years in prison each for two counts of intoxication manslaughter with a vehicle in the deaths of Fabian Guerrero-Moreno and his unborn child, who were killed in a drunk driving crash in August 2016.

March 8, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (22)

Highlighting that registries are not only for sex offenders in many states

This new Marshall Project piece, headlined "Convicted of a Drug Crime, Registered with Sex Offenders," focuses on the broad reach of the offender registry employed in Kansas and debate over its reform.  I recommend the piece in full, and here are excerpts from the piece:

Lawmakers have long justified sex offender registries as a way to notify people about potentially dangerous neighbors or acquaintances, while critics say they fail to prevent crime and create a class of social outcasts.  Over the years, several states have expanded their registries to add perpetrators of other crimes, including kidnapping, assault, and murder.  Tennessee added animal abuse.  Utah added white collar crimes.  A few states considered but abandoned plans for hate crime and domestic abuse registries.  At least five states publicly display methamphetamine producers.

But Kansas went furthest, adding an array of lesser drug crimes; roughly 4,600 people in the state are now registered as drug offenders.  As deaths from opioids rise, some public officials have focused on addiction as a public health issue.  Kansas offers a different approach, as law enforcement officials argue that the registry helps keep track of people who may commit new offenses and cautions the public to avoid potentially dangerous areas and individuals.  At the same time, many registrants say it can be hard to move on when their pasts are just a click away for anyone to see.

The Kansas legislature is currently considering a bill proposed by the state’s sentencing commission that would remove drug offenders from the registry.  “It is a drain on resources with no science, studies, or data to justify it,” defense lawyer Jennifer Roth told lawmakers at an early February hearing.

The Kansas law, first passed in 2007, now requires anyone convicted of manufacturing, distributing, or possessing “with intent to distribute” drugs other than marijuana to remain on the registry for a minimum of 15 years (and a maximum of life, for multiple convictions.)  During that time, they must appear at their county sheriff’s office four times a year, as well as any time they move, get a new job, email address, vehicle, or tattoo.  Most of this information is online, searchable by name or neighborhood, and members of the public can sign up to be emailed when an offender moves in or starts work near them.  (In 2013, when businesses expressed fear of vigilantes targeting registrants at work, lawmakers removed employment addresses from the website.)  During the quarterly sheriff visits, they must pay $20 and have their picture retaken; if they work or go to school in another county, they must register there as well.  “Any time I get a new job, I have to say, ‘Sorry, I need time off’ in the first 72 hours,” said Juston Kerns, 35, arrested for involvement in the sale of methamphetamine in 2014.

A few years ago, Wesley Harden — convicted in 2008 of selling methamphetamine after he led police on a high-speed chase — was arrested and charged with “failure to register.” Harden, 35, showed up as required, but he’d recently failed to report a jet ski as a new vehicle.  He doesn’t know for sure how the authorities discovered the jet ski, but thinks it has to do with pictures he posted on Facebook.  Harden received three years of probation, but the punishment for failing to register can include prison time, even if the original conviction was handled without incarceration.  Last year, 38 people were sent to prison over their failure to register for drug crimes, and the Kansas Sentencing Commission estimates that removing drug crimes would save the state roughly a million dollars each year....

Many law enforcement officials support the registry on public safety grounds. “People who sell drugs, there tends to be dangerous activity that takes place around their residence,” said Ed Klumpp, a retired Topeka police chief who lobbies for law enforcement at the legislature and opposes the current bill. “If you’re raising children in the neighborhood, it’s good to know there is someone down the street convicted of selling or manufacturing, so maybe they won’t send the kids to get candy there on Halloween.”

In recent years, lawyers around the country have argued to increasing success that registration requirements are unconstitutional.  One county in Colorado recently took its registry offline after a judge found it to be cruel and unusual punishment. California recently passed a law allowing sex offenders to be removed from the registry after 10 to 20 years if they have not committed another serious or violent felony or sex crime.

But beyond the legal questions are practical ones.  Little is known about whether registries prevent crime, and University of Michigan law professor J.J. Prescott has speculated that they may even facilitate crimes that involve buyers and sellers.  “Imagine I move to a new city and I don't know where to find drugs,” he said.  “Oh, I can just look up people on the registry!”

Evidence to support this theory is scant — and law enforcement leaders in Kansas say they have not encountered the problem — but at the February legislative hearing, Scott Schultz, the executive director of the Kansas Sentencing Commission, said he had learned of one registrant who found people at her door, looking to buy drugs.  They’d seen her address online. “I’ve called it, tongue in cheek, state-sponsored drug-dealing,” Schultz said, describing the registry as an “online shopping portal for meth and other drugs.”

March 8, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (4)

"Turn Prisons Into Colleges" ... and urging colleges to invest in prisoner education

The quoted portion title of this post is the headline of this recent New York Times commentary authored by Elizabeth Hinton.  Here are excerpts (with a little commentary at the end from me):

Imagine if prisons looked like the grounds of universities. Instead of languishing in cells, incarcerated people sat in classrooms and learned about climate science or poetry — just like college students.  Or even with them.

This would be a boon to prisoners across the country, a vast majority of whom do not have a high school diploma. And it could help shrink our prison population. While racial disparities in arrests and convictions are alarming, education level is a far stronger predictor of future incarceration than race.

The idea is rooted in history. In the 1920s, Howard Belding Gill, a criminologist and a Harvard alumnus, developed a college-like community at the Norfolk State Prison Colony in Massachusetts, where he was the superintendent. Prisoners wore normal clothing, participated in cooperative self-government with staff, and took academic courses with instructors from Emerson, Boston University and Harvard. They ran a newspaper, radio show and jazz orchestra, and they had access to an extensive library....

Researchers from the Bureau of Prisons emulated this model when they created a prison college project in the 1960s. It allowed incarcerated people throughout the country to serve their sentences at a single site, designed like a college campus, and take classes full-time. Although the project was never completed, San Quentin State Prison in California created a scaled-down version with support from the Ford Foundation, and it was one of the few prisons then that offered higher education classes.

Today, only a third of all prisons provide ways for incarcerated people to continue their educations beyond high school. But the San Quentin Prison University Project remains one of the country’s most vibrant educational programs for inmates, so much so President Barack Obama awarded it a National Humanities Medal in 2015 for the quality of its courses.

The idea of expanding educational opportunities to prisoners as a way to reduce recidivism and government spending has again gained momentum. That’s partly because of a study published in 2013 by the right-leaning RAND Corporation showing that inmates who took classes had a 43 percent lower likelihood of recidivism and a 13 percent higher likelihood of getting a job after leaving prison.

Lawmakers have rightly recognized the wisdom in turning prisons into colleges. In 2015, Mr. Obama created the Second Chance Pell Pilot Program, which has enrolled more than 12,000 incarcerated students in higher education programs at 67 different schools. The Senate Committee on Health, Education, Labor and Pensions is considering permanently reinstating Pell Grants for incarcerated students, who lost access to federal scholarships under the 1994 crime bill. Even Education Secretary Betsy DeVos calls providing prisoners with the chance to earn a degree “a very good and interesting possibility.”...

Mass incarceration is inextricably linked to mass undereducation in America. Yale, Princeton, Cornell, Georgetown, Wesleyan and New York University are among a handful of institutions that realize this and have begun to create ways for incarcerated people to take college classes.  These universities recognize that they have a moral responsibility to pursue educational justice for prisoners, a group that has disproportionately attended under-resourced public schools.

College presidents across the country emphasize the importance of “diversity, inclusion and belonging,” and they are reckoning with their institutions’ ties to slavery.  Expanding prison education programs would link those two ventures in a forward-thinking way.  It’s clear that education will continue to be a central part of criminal justice reform.  The question we should ask ourselves is not “Will incarcerated students transform the university?” The better question is, “Will colleges begin to address and reflect the world around them?”

I very much like that this commentary is not merely suggesting prisons ought to foster educational opportunities, but also that it calls upon "college presidents across the country" to commit to "expanding prison education programs."  I blogged here last month about the new program in New York through which the company JPay will provide all New York state prison inmates with a electronic tablet, through which prisoners can purchase programming. I know many colleges and universities have a range of on-line degree programs and ample on-line education content.  I would love to see some higher education institutions partnering with JPay or other like companies to provide education content to prisons for free or at the lowest possible cost. 

As I see it, lots of the needed infrastructure and substantive content already exists to make college-level educational opportunities available to more prisons, if university administrators and prison official are truly committed to making a difference in this way.  In other words, I think there already is a way, the only question is whether there is the will.

March 8, 2018 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Technocorrections, Who Sentences | Permalink | Comments (6)

Via executive order, Prez Trump creates new Federal Interagency Council on Crime Prevention and Improving Reentry

Images (8)As reported in this Axios piece, "President Trump on Wednesday launched, by executive order, the Federal Interagency Council on Crime Prevention and Improving Reentry." Here is more:

The president enacted the council with the aim of reducing crime while looking for ways to "provide those who have engaged in criminal activity with greater opportunities to lead productive lives."...

“We applaud President Trump for following through on his stated commitment to reducing crime, reforming our prisons and rehabilitating individuals who are hungry for a second chance,” [said] Mark Holden, general counsel at Koch Industries who recently launched the Safe Streets and Second Chances prison reform initiative, told Axios. Holden said he is particularly encouraged that Jared Kushner will be one of the co-chairs.

While she thinks this is a good step from the administration, Inimai Chettiar, director of the justice program at the Brennan Center for Justice told Axios, "there can be no real criminal justice reform without reducing the number of people entering prison. The President and Attorney General are attempting to kill bipartisan sentencing reform in Congress, and offering incremental reentry reforms instead."...

The executive order calls for "mental health, vocational training, job creation, after-school programming, substance abuse, and mentoring," for inmates. "Incarceration is necessary to improve public safety, but its effectiveness can be enhanced through evidence-based rehabilitation programs." The order asks for a report from the council within 90 days that will outline a timeline for ways to reduce crime and recidivism.

The council will be co-chaired by Jared Kushner, Attorney General Jeff Sessions and the Assistant to the President of Domestic Policy Andrew Bremberg.  The council will include the heads of: The Department of the Treasury, the Department of the Interior, the Department of Agriculture, the Department of Commerce, the Department of Labor, the Department of Health and Human Services, the Department of Housing and Urban Development, the Department of Education, the Department of Veterans Affairs, the Office of Management and Budget, and the Office of National Drug Control Policy.

The executive order asks for ways to reduce recidivism and better re-entry for those coming out of the criminal justice system, but does not suggest looking at changes to sentencing guidelines. 

The full Executive Order creating the Federal Interagency Council on Crime Prevention and Improving Reentry can be accessed at this link. The first section of the EO provides as follows:

Section 1. Purpose. The Federal Government must reduce crime, enhance public safety, and increase opportunity, thereby improving the lives of all Americans. In 2016, the violent crime rate in the United States increased by 3.4 percent, the largest single-year increase since 1991. Additionally, in 2016, there were more than 17,000 murders and nonnegligent manslaughters in the United States, a more than 20 percent increase in just 2 years. The Department of Justice, alongside State, local, and tribal law enforcement, has focused its efforts on the most violent criminals. Preliminary statistics indicate that, in the last year, the increase in the murder rate slowed and the violent crime rate decreased.

To further improve public safety, we should aim not only to prevent crime in the first place, but also to provide those who have engaged in criminal activity with greater opportunities to lead productive lives.  The Federal Government can assist in breaking this cycle of crime through a comprehensive strategy that addresses a range of issues, including mental health, vocational training, job creation, after-school programming, substance abuse, and mentoring. Incarceration is necessary to improve public safety, but its effectiveness can be enhanced through evidence-based rehabilitation programs.  These efforts will lower recidivism rates, ease incarcerated individuals’ reentry into the community, reduce future incarceration costs, and promote positive social and economic outcomes.

I am not going to get too excited by this new Council until I see what kind of "recommendations for evidence-based programmatic and other reforms" appear in the various reports it is tasked to issue. But this order provides still more reason to believe that the Trump White House wants to (and wants to be able to claim) it is doing something productive in the arena of criminal justice reform.

Notably, President Barack Obama formally acted in a fairly similar manner via this Presidential Memorandum in late April 2016 discussing "Federal Interagency Reentry Council." That memorandum noted that "in 2011, the Attorney General formed the Federal Interagency Reentry Council, a Cabinet-level working group dedicated to the rehabilitation and reintegration of individuals returning to their communities from prisons and jails" and said the 2016 memorandum was being issued to "ensure that the Federal Government continues the important work of this council and builds on its successes." This new Executive Order by Prez Trump formerly states that it revokes Prez Obama's 2016 memorandum, but in substance it looks quite similar.

March 8, 2018 in Collateral consequences, Criminal justice in the Trump Administration, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

March 7, 2018

"Plea Bargaining: From Patent Unfairness to Transparent Justice"

The title of this post is the title of this new paper now appearing on SSRN authored by Mirko Bagaric, Julie Clarke and William Rininger. Here is its abstract:

The United States is in the midst of an unprecedented mass incarceration crisis.  It imprisons more of its citizens than any other country — and by a considerable margin.  It is now widely acknowledged that there is no community dividend stemming from an overly punitive sentencing system.  Over-incarceration does not make the community safer and diverts billions of dollars annually from productive social services, such as health and education.  Lawmakers have failed to find overarching solutions to this crisis. This Article proposes to change that paradigm by offering concrete reforms to a key failing of the sentencing system.

Emerging evidence suggests that one of the main reasons for the mass incarceration crisis relates to the dysfunctional plea bargaining process, in which the prosecution has the stronger negotiating power and often uses it to press for harsh penalties.  The reality is that most defendants in the United States do not receive a trial, let alone a fair one.  Their fate is determined by a negotiation with a prosecutor. More than ninety percent of all criminal matters in the United States are finalized in this manner.   There is a wide-ranging consensus that this process is flawed. It results in a large portion of defendants receiving harsher penalties than is commensurate with the seriousness of their offense. Sometimes it also leads to defendants who are innocent pleading guilty, in order to avoid the uncertainty of a trial.  The process is especially unfair on minority groups, with evidence establishing that African Americans in particular, receive harsher penalties than similarly situated white defendants.

This Article proposes reforms to the plea bargaining process that will demonstrably and profoundly reshape the framework for plea negotiations.  The central plank of the proposed reform is to shift more discretion and power from prosecutors, who invariably agitate for tougher sentences, into the hands of (impartial) sentencing judges.  This can be achieved by conferring a discount to offenders who plead guilty.  The size of the discount should be up to thirty percent.  A similar system already operates effectively in Australia.  In addition to this, defendants who plead guilty in circumstances when there is a weak prosecution case (and who are tenably innocent) should receive a discount of up to seventy-five percent.  This proposal would considerably reduce incarceration numbers in a way that does not compromise community safety and preserves the cost-saving benefits of the current plea bargaining process.  The reform will also reduce the discriminatory operation of the sentencing system against offenders who come from socially and economically deprived backgrounds.

March 7, 2018 in Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

Another sad account of how US Bureau of Prisons administers compassionate release program

The Marshall Project and the New York Times have this lengthy new piece about the ugly administration of the federal compassionate release program by the US Bureau of Prisons. At the Marshall Project, the piece has this full headline summarizing its content: "Old, Sick and Dying in Shackles: 'Compassionate release' has bipartisan support as a way to reduce the federal prison population and save taxpayer money. New data shows that it’s rarely used." Here are excerpts:

Congress created compassionate release as a way to free certain inmates, such as the terminally ill, when it becomes “inequitable” to keep them in prison any longer.  Supporters view the program as a humanitarian measure and a sensible way to reduce health care costs for ailing, elderly inmates who pose little risk to public safety.  But despite urging from lawmakers of both parties, numerous advocacy groups and even the Bureau of Prisons’ own watchdog, prison officials use it only sparingly.

Officials deny or delay the vast majority of requests, including that of one of the oldest federal prisoners, who was 94, according to new federal data analyzed by The Marshall Project and The New York Times.  From 2013 to 2017, the Bureau of Prisons approved 6 percent of the 5,400 applications received, while 266 inmates who requested compassionate release died in custody. The bureau’s denials, a review of dozens of cases shows, often override the opinions of those closest to the prisoners, like their doctors and wardens.

Advocates for the program say the bureau, which oversees roughly 183,000 inmates, denies thousands of deserving applicants. About half of those who died after applying were convicted of nonviolent fraud or drug crimes. “It makes sense to release prisoners who present very little danger to society. It’s the humane thing to do, and it’s the fiscally responsible thing to do,” said Senator Brian Schatz of Hawaii, a Democrat. “The Bureau of Prisons has the theoretical authority to do this, but they basically do none of it.”

Case files show that prison officials reject many prisoners’ applications on the grounds that they pose a risk to public safety or that their crime was too serious to justify early release. In 2013, an inspector general reported that nearly 60 percent of inmates were denied based on the severity of their offense or criminal history. The United States Sentencing Commission has said that such considerations are better left to judges — but judges can rule on compassionate release requests only if the Bureau of Prisons approves them first.

Late last month, Schatz introduced legislation — co-sponsored with Senators Mike Lee of Utah, a Republican, and Patrick Leahy of Vermont, a Democrat — that would let prisoners petition the courts directly if the bureau denies or delays their requests.

Many are turned down for not meeting medical requirements. [Kevin] Zeich, who was serving 27 years for dealing methamphetamine, requested compassionate release three times, but was repeatedly told he was not sick enough. On his fourth try, his daughter, Kimberly Heraldez, finally received a phone call in March 2016 saying her father would soon be on a plane, headed to her home in California. Early the next morning, she was awakened by another call. Her father had died....

Compassionate release dates back to an overhaul of federal sentencing laws in the 1980s. While abolishing federal parole, Congress supplied a safety valve, giving judges the power to retroactively cut sentences short in “extraordinary and compelling” circumstances. But a court could do so only if the Bureau of Prisons filed a motion on an inmate’s behalf. For years, the agency approved only prisoners who were near death or completely debilitated. While nonmedical releases were permitted, an inspector general report found in 2013, not a single one was approved over a six-year period.

The report said the program should be expanded beyond terminal illness cases and used more frequently as a low-risk way to reduce overcrowding and health care spending. The Bureau of Prisons widened the criteria to explicitly include inmates over 65 and those who are the sole possible caregiver for a family member.  Then Attorney General Eric H. Holder, Jr., promoted the changes as part of his “Smart on Crime” initiative to “use our limited resources to house those who pose the greatest threat.

”But the bureau, which is part of the Justice Department, has yet to fully embrace those changes. Of those inmates who have applied for nonmedical reasons, 2 percent (50 cases) have been approved since 2013, according to an analysis of federal prison data.  And although overall approval numbers increased slightly between 2013 and 2015, they have since fallen.

At a 2016 sentencing commission hearing, Bureau of Prisons officials said they believed the program should not be used to reduce overcrowding.  And even the principal deputy assistant to Holder, Jonathan Wroblewski, said the program was not an “appropriate vehicle for a broad reduction” in the prison population.  “Every administration has taken the position that part of our responsibility is to ensure that public safety is not undermined,” he said.

After the hearing, the commission released new guidelines encouraging prison officials to determine only whether inmates fit the criteria for release — that is, if they are old enough, sick or disabled enough, or if they are the sole possible caregiver for someone on the outside. Whether the prisoner poses a risk to the public should be left to a judge to decide, the commission said.

Mark Inch, who was appointed director of the Bureau of Prisons by Attorney General Jeff Sessions last August, has made no public statements about the program. The bureau declined to make Inch available for an interview and did not respond to emailed questions.

As this article indicates, there are bills now pending in Congress that would in various ways address deficiencies in the current compassionate release mechanisms. This is on of many reasons I am hopeful (but not optimistic) that folks on both sides of the aisle in Congress will try hard in the coming weeks to get at least some form of prison reform legislation to Prez Trump's desk. A revised and expanded compassionate release mechanism could and should help hundreds, perhaps thousands, of federal prisoners, particularly those who have likely already served a very long time in federal prison and who pose little or no risk to public safety.

A few recent of many prior related posts:

March 7, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (4)

"Lethal Rejection: An Empirical Analysis of the Astonishing Plunge in Death Sentences in the United States from Their Post-Furman Peak"

The title of this post is the title of this interesting new paper by David McCord and Talia Roitberg Harmon now available via SSRN. Here is the abstract:

The authors gathered information on 1665 death-eligible cases nationwide for three years at decade intervals: 1994, 2004, and 2014.  In 517 cases death sentences were imposed; in 311 cases sentencers spared the defendants from death sentences, and in 837 cases prosecutors spared defendants from death sentences.  The Article proceeds in three Parts. Part I explains the methodology for unearthing relevant data and preparing it for analysis.  Part II analyzes declines in death sentences due to decreasing death eligibility, that is, fewer murderers over time meeting the criteria that made death a sentencing option.  Four reasons are examined: fewer death-eligible murders, the United States Supreme Court’s exemptions of juveniles who were less than eighteen years of age at the time of the commission of the murder, and persons with intellectual disability (known to the law as the “mentally retarded”); and the abolition of the death penalty in several states.  This Part concludes that about half of the decline in death sentences is attributable to decreased death-eligibility, mostly due to the steep decrease in the number of death-eligible murders.

Part III examines increasingly narrower perceptions of death-worthiness, that is, the evolution in attitudes among prosecutors and sentencers toward deeming fewer among the many death-eligible defendants worthy of death sentences.  This Part requires the most complicated analysis because unlike death-eligibility decisions, which are dictated by law, death-worthiness decisions emerge from an opaque brew of many factors, including, but not limited to, resource differentials among jurisdictions, prosecutorial attitudes, the wishes of the murder victim’s survivors, defense counsel performance, public opinion, and sentencer reactions.  But while death-worthiness decisions are often opaque in individual cases, each case generates empirical data from which patterns may be discerned. Part III uses such data to analyze ten questions and arrive at tentative answers:

• Did the advent of life-without-parole (hereinafter “LWOP”) reduce death sentences in jurisdictions where it was added as an option? (only in Texas)

• Did sentencers become more reluctant to return death sentences? (no)

• Were death sentences decreasingly imposed in less aggravated cases and increasingly imposed in more aggravated cases? (to some extent)

• Did presentation of greater numbers of mitigating factors conduce to fewer death sentences? (no)

• Did robbery during a murder became a less powerful aggravator? (yes)

• Did 18-to-20 year-olds benefit from a ripple effect from the exemption of juveniles? (yes)

• Did death sentences become less common in multiple perpetrator cases? (yes)

• Did low population counties increasingly drop out of death sentencing? (yes)

• Did low revenue counties increasingly drop out of death sentencing? (no) and

• Did a few traditionally high-volume death sentencing counties skew the figures by cutting back on the use of the death penalty due to local political factors? (yes)

March 7, 2018 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (8)

March 6, 2018

Noting the focus on prosecutor elections as new front in criminal justice reform efforts

This new McClatchy article, headlined "Progressive groups investing in district attorney races as path to criminal justice reform," highlights the new focus on DA elections within the broader modern criminal justice reform movement. Here is how the piece starts:

The American Civil Liberties Union, backed by millions in funding from billionaire Democratic donor George Soros, is investing resources and applying organizational muscle in local district attorney races in 2018.

The ACLU is among a variety of organizations working to elect prosecutors willing to jumpstart a laundry list of criminal justice reforms, including an overhaul of the pretrial bail bond system. It received a $50 million grant from Soros’ Open Society Foundations in 2014.

Now, in this year’s elections, the organization is planning voter education and outreach campaigns in district attorney races in California, Florida, Maine, Massachusetts, Minnesota, Oklahoma, Oregon, Vermont and possibly North Carolina and Missouri.

The group hasn’t determined which local races will be targeted, but it will focus on contests in big cities with large jail populations that feed the state prison system, said Taylor Pendergrass, senior campaign strategist for the ACLU’s Campaign for Smart Justice.  More than 1,000 local prosecutors are up for election in November, according to the group. “We’re just recognizing how powerful district attorneys are in shaping criminal justice policies, both at the local level, but also at the statehouse,” Pendergrass said. “The lobbying power of prosecutors is really a substantial force almost everywhere we want to see change made in the criminal justice system.”

The ACLU doesn’t endorse political candidates. Instead, it said the objective is to raise awareness about criminal justice issues of concern to the organization, its members and the voting public.  But Soros-funded super PACs and advocacy groups have helped elect a growing number of progressive district attorneys who now serve metro areas such as Chicago, Denver, Houston, Philadelphia and Orlando. And it’s looking to add more in 2018.

The Color of Change Political Action Committee, which has also received Soros funding, is urging black voters to support Democratic candidate Elizabeth Frizell for Dallas County District Attorney in Texas.  A former state district judge, Frizell has called for special prosecutors to investigate shootings by police.  She also supports replacing cash bail bonds with a pretrial release system based on factors such as the type of offense, the facts of the case and the defendants’ likelihood to re-offend and return to court.

An African American, Frizell reflects a new wave of ethnically diverse, activist district attorney candidates, many of whom support policies such as diversion programs for minor drug offenders, reentry programs for people leaving prison and reducing disparities that disproportionately impact poor and minority defendants in the courts.

March 6, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (4)

Federal prosecutors seeking (way-below-guideline) sentence of 15 years for "Pharma Bro" Martin Shkreli

As reported in this new Reuters piece, "U.S. prosecutors on Tuesday said former drug company executive Martin Shkreli should spend at least 15 years in prison after being convicted of fraud, saying his lack of remorse and respect for the law justified a long time behind bars." Here is more, with a final point stressed for commentary:

The request by the Department of Justice came three days before Shkreli’s scheduled sentencing by U.S. District Judge Kiyo Matsumoto in Brooklyn federal court. Prosecutors called Shkreli “a man who stands before this court without any showing of genuine remorse, a man who has consistently chosen to put profit and the cultivation of a public image before all else, and a man who believes the ends always justify the means.”

Shkreli, 34, had requested a 12-to-18-month term following his conviction last August for lying to investors about the performance of his hedge funds MSMB Capital and MSMB Healthcare, and conspiring to manipulate the stock price of the drug company Retrophin Inc. Known as “Pharma Bro,” in part for his ability to attract attention, Shkreli is perhaps best known for raising the price of the anti-parasitic drug Daraprim by more than 5,000 percent in 2015, while serving as chief executive of Turing Pharmaceuticals, now called Vyera Pharmaceuticals....

Shkreli has been in jail since September, when Matsumoto revoked his bail after he offered social media followers $5,000 for a hair from former U.S. presidential candidate Hillary Clinton. On Monday, Matsumoto ordered Shkreli to forfeit $7.36 million of ill-gotten gains. She said he may be forced to give up assets such as a Picasso painting and a one-of-a-kind Wu-Tang Clan album if he cannot find the money....

In a letter to the judge last week, Shkreli said he accepted that he had made “serious mistakes,” but still considered himself “a good person with much potential.”

But prosecutors said that while in jail, Shkreli has privately expressed disdain for his conviction and the judicial process, providing further evidence he does not deserve mercy. It cited a January email conversation where Shkreli allegedly wrote “fuck the feds” and expressed hope for a big tax refund because only his “liquid money” was affected by the forfeiture. “Shkreli’s email communications confirm that any remorse he may express publicly is a carefully constructed facade,” prosecutors said.

A 15-year term is shorter than the minimum 27 years recommended under federal guidelines. Brafman has called that length “draconian and offensive.”

There is much in this story and in this high-profile sentencing that merits commentary, but I am especially struck by the decision by federal prosecutors to request a sentence here that is more than a decade below the advisory guideline range.  Recall that the May 2017 Sessions Memo said federal prosecutors "should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553. In most cases, recommending a sentence within the advisory guideline range will be appropriate."  This high-profile case is still more proof that federal prosecutors recognize that the applicable federal sentencing guidelines for at least some fraud offenses are not reasonable and can be unreasonable extreme by more than a decade.

Prior related posts:

March 6, 2018 in Federal Sentencing Guidelines, Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (1)

US Sentencing Commission releases 2017 Annual Report and Sourcebook of Federal Sentencing Statistics

2017-sourcebook-image_cropVia email, I just received this notice from the US Sentencing Commission about the publication of lots of new federal sentencing data:

Just Released

The United States Sentencing Commission’s 2017 Annual Report and 2017 Sourcebook of Federal Sentencing Statistics are now available online.

The Annual Report provides an overview of the Commission’s activities and accomplishments in fiscal year 2017.

The Sourcebook of Federal Sentencing Statistics presents tables, figures, and charts on selected district, circuit, and national sentencing data for fiscal year 2017. The Commission collected and analyzed data from more than 311,000 court documents in the production of this year’s Sourcebook.

I fear I won't be able to find all the time I would like to churn over all the notable data in these reports.  But I can already see from the start of the 2017 Annual Report some noteworthy data points, embedded in this overview of modern federal sentencing realities (with my emphasis added):

The Commission's data collection, analysis, and reporting requirements are impacted by the high volume of cases sentenced in the federal system annually. The Commission received approximately 310,000 documents for the 66,873 individual original sentencings that occurred in FY 2017.  To put this caseload in perspective, in FY 1995, the Commission received documentation for 38,500 original sentencings.  Select highlights from FY 2017 data are outlined below:

  • In FY 2017, the courts reported 66,873 felony and Class A misdemeanor cases to the Commission. This represents a decrease of 869 cases from the prior fiscal year.

  • The race of federal offenders remained largely unchanged from prior years.  In FY 2017, 53.2 percent of all offenders were Hispanic, 21.5 percent were White, 21.1 percent were Black, and 4.2 percent were of another race.  Non-U.S. citizens accounted for 40.7 percent of all offenders.

  • Drug cases accounted for the largest single group of offenses in FY 2017, comprising 30.8 percent of all reported cases. Cases involving immigration, firearms, and fraud were the next most common types of offenses after drug cases. Together these four types of offenses accounted for 82.4 percent of all cases reported to the Commission in FY 2017.

  • Among drug cases, offenses involving methamphetamine were most common, accounting for 34.6 percent of all drug cases.

  • Drug sentences remained relatively stable across all drug types in fiscal year 2017.  The average length of imprisonment increased slightly from FY 2016 in cases involving methamphetamines, from 90 months to 91 months, and also in marijuana cases, from 28 months to 29 months. In fiscal year 2017, 44.2 percent of drug offenders were convicted of an offense carrying a mandatory minimum penalty.

Overall, 79.8 percent of all sentences imposed in FY 2017 were either within the applicable guidelines range, above the range, or below the range at the request of the government.  Slightly less than half (49.1 percent) of all cases were sentenced within the guidelines range, compared to 48.6 percent in FY 2016.  In FY 2017, 20.1 percent of the sentences imposed were departures or variances below the guideline range other than at the government’s request, compared to 20.8 percent in fiscal year 2016.

March 6, 2018 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines | Permalink | Comments (2)

March 5, 2018

Making a fulsome case on the merits against sex offender registries

This morning, the US Supreme Court granted cert in Gundy v. US to consider whether Congress's delegation to the attorney general the power to issue regulations interpreting the federal Sex Offender Notification and Registration Act violates the nondelegation doctrine. That grant on that issue right has Con Law fans buzzing. But sentencing fans more interested in the substance of sex offender registries will want to check out this new commentary by Jesse Kelley in The Hill under the headline "The Sex Offender Registry: Vengeful, unconstitutional and due for full repeal." Here are excerpts:

The Bureau of Justice Statistics reports that at least 95 percent of all state prisoners will be released from prison at some point. However, convicted sex-offenders almost exclusively face the vengeful, additional punishment of registration under the Sex Offender Registry and Notification Act (SORNA).

Generally, under SORNA, an individual who is required to register as a sex offender must register at least once a year; report any change of address within as little as three days; produce vehicle information, a recent photograph and a DNA sample; and abide by stringent residency restrictions, which can force individuals out of urban areas, away from family and into unemployment.

SORNA violates our nation’s founding documents by singling out a specific category of offenders for unfair, unconstitutional punishment. While the Department of Justice cites public safety as its rationale for continuing to enforce the overreaching requirements of SORNA, the program has metastasized, defacing some of our most treasured rights: the right to due process, the right to be free from double jeopardy and the right to avoid cruel and unusual punishment.....

The Pennsylvania Supreme Court ruled that the state’s version of SORNA violates juvenile offenders’ due process rights because the requirements of satisfying SORNA assume that a juvenile will commit some sex offense in the future without giving him or her the opportunity to challenge that assumption. Equity demands assigning this same ruling to adult reporting requirements.

Another element of due process known as “double jeopardy” appears in the Fifth Amendment and protects an individual from being prosecuted for the same offense twice. It also bars multiple punishments for the same crime. Individuals convicted of crimes who have faced incarceration and then must begin sex registry-reporting are certainly being punished repeatedly.

SORNA requirements punish ex-offenders by inflicting upon them tangible, secondary punishments, like the inability to qualify for housing and increased difficulties securing employment. These secondary punishments effectively banish ex-offenders to a modern leper colony by not only removing re-entry resources but also by affirmatively ostracizing those attempting to rebuild a life after incarceration.

In addition to violating double jeopardy, repeated punishments violate the Eighth Amendment by imposing cruel and unusual punishment. The government is prohibited from imposing a criminal sentence that is either vindictive or far too harsh for the crime committed. Incarceration is intended to be a punishment and a deterrence, so any subsequent punishment can only be vindictive. After incarceration, an ex-offender’s privacy is significantly diminished by the requirement to report one’s name, address, photo, employment status and provide a DNA sample.

Last fall, a federal judge found that the Colorado sex offender registry’s punitive impact outweighed any value it might have had in protecting the public and concluded that registration violates the prohibition against cruel and unusual punishment. As the judge specifically stated, “This ongoing imposition of a known and uncontrollable risk of public abuse of information from the sex offender registry, in the absence of any link to an objective risk to the public posed by each individual sex offender, has resulted in and continues to threaten [sex offenders] with punishment disproportionate to the offenses they committed.”

As Clarence Darrow famously said, “You can only protect your liberties in this world by protecting the other man's freedom. You can only be free if I am free.” Protecting the constitutional rights of everyone, even those convicted of sex offenses, is of the upmost importance for protecting our freedom. Therefore, both legislators — by way of developing and amending laws — and judges — via hearing arguments and creating case law — must re-examine SORNA in order to preserve liberty and uphold the Constitution.

March 5, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (9)

Spotlighting the modern realities and challenges of geriatric executions

Adam Liptak has this new Sidebar piece in the New York Times headlined "Too Old to Be Executed?  Supreme Court Considers an Aging Death Row." Here is how the piece gets started:

The nation’s death rows are starting to look like geriatric wards. Condemned inmates in many states are more likely to die of natural causes than to be executed.  The rare ones who are put to death often first spend decades behind bars, waiting.

It turns out that executing old men is not easy.  In November, Ohio called off an attempt to execute Alva Campbell, 69, after the execution team could not find a suitable vein into which to pump lethal chemicals.  The state announced that it would try again in June 2019, by which time he would have been 71.

But Mr. Campbell suffered from what one judge called an “extraordinary list of ailments.”  He used a walker, could barely breathe and relied on a colostomy bag.  He was found lifeless in his cell on Saturday, having died in the usual way, without government assistance.

In Alabama last month, state officials called off the execution of Doyle Lee Hamm, 61, also because they could not find a suitable vein. Mr. Hamm has at least two kinds of cancer, cranial and lymphatic, and he may not have long to live with or without the state’s efforts.

Last week, the Supreme Court agreed to hear the case of another Alabama inmate, Vernon Madison, 67, who suffers from dementia and cannot remember the crime that sent him to death row.  The court, which has barred the execution of juvenile offenders and the intellectually disabled, is now turning its attention to old people.

Prior related posts:

March 5, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

SCOTUS grants cert on structural SORNA issue and Justice Sotomayor dissents in capital case with IAC issues

The Supreme Court has been mulling over a number of cases that would, if cert were granted, be of great interest to sentencing fans. But the Justices, via today's new SCOTUS order list, did not grant (or deny) cert on any blockbusters. Here is the SCOTUSblog accounting of what sentencing fans did get today:

The second grant is Gundy v. US, but only limited to the fourth question presented by the petition: whether Congress's delegation of power to the attorney general to issue regulations interpreting the Sex Offender Notification and Registration Act violates the nondelegation doctrine....

The non-delegation challenge to SORNA is (1) more plausible than most non-delegation challenges because of the criminal context; but (2) would be the first non-delegation challenge that has prevailed at the Court in a very long time. And it would blast a giant hole in SORNA.

Justice Sotomayor dissented from the denial of review in Wessinger v. Vannoy, a capital case involving an attorney's duties to conduct a mitigation investigation when the court has denied funds for expert assistance.

Justice Sotomayor's solo dissent in Wessinger ends this way:

The Court’s denial of certiorari here belies the “bedrock principle in our justice system” that a defendant has a right to effective assistance of trial counsel, and undermines the protections this Court has recognized are necessary to protect that right. Martinez, 566 U.S., at 12. Indeed, the investigation of mitigation evidence and its presentation at sentencing are crucial to maintaining the integrity of capital proceedings.  The layers of ineffective assistance of counsel that Wessinger received constitute precisely the type of error that warrants relief under this Court’s precedent.  Yet, Wessinger will remain on death row without a jury ever considering the significant mitigation evidence that is now apparent. Because that outcome is contrary to precedent and deeply unjust and unfair, I dissent from the denial of certiorari.

March 5, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (4)

"Sixth Amendment Sentencing after Hurst"

The title of this post is the title of this notable new article authored by Carissa Byrne Hessick and William Berry available via SSRN. Here is the abstract:

The Supreme Court’s 2016 decision in Hurst v. Florida, which struck down Florida’s capital sentencing scheme, altered the Court’s Sixth Amendment sentencing doctrine. That doctrine has undergone several important changes since it was first recognized.  At times the doctrine has expanded—invalidating sentencing practices across the country — and at times it has contracted — allowing restrictions on judicial sentencing discretion based on findings that are not submitted to a jury. Hurst represents another expansion of the doctrine.  Although the precise scope of the decision is unclear, the most sensible reading of Hurst suggests that any finding required before a judge may impose a higher sentence must be submitted to a jury and proven beyond a reasonable doubt.  This reading invalidates several state capital sentencing systems and several non-capital systems, and it would require dramatic changes to federal sentencing as well.

March 5, 2018 in Blakely in the Supreme Court, Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

March 4, 2018

Noting lengthy struggles in California over the definition of a violent crime

Federal sentencing practitioner know all too well how hard it can be to clearly define what offenses qualify as a "crime of violence" or a violent felony. And while the federal jurisprudence over this issue can be hellish, states can struggle with similar issues in various contexts.  This new Los Angeles Times article, headlined "How a list of 23 crimes now dominates California's debate over prison punishment," explains:

Consider the last two years of debate over what should, and should not, be a "violent" crime. That debate begins with the index of crimes in section 667.5 of the California Penal Code. The list was first enacted in 1976, and has been tinkered with so many times it's hard to say whether it's a fair representation of the most heinous crimes.

Here's why that matters: The list is now a key part of determining which California prison inmates are eligible for early parole under Gov. Jerry Brown's 2016 ballot measure, Proposition 57. A legal fight over how to interpret the ballot measure could become a potent political issue.

Brown signed the law creating the original list of violent crimes during his first tour of duty as governor. It's since been amended or expanded 38 times, the last effort in 2014. Eight specific offenses or crime categories were in the original version. Now, there are 23 crimes. The list almost doubled in size in just the five years between 1988 and 1993.

So what's included? Some violent crimes are relatively straightforward — murder, attempted murder, voluntary manslaughter, robbery, kidnapping. (Kidnapping, interestingly, was dropped from the list in 1977 with no noteworthy explanation and added back in 1991.) Some additions, like the inclusion of carjacking in 1993, were sparked by news events. A prosecutor told The Times that year that classifying the crime as "violent" would give "local district attorneys another weapon in their arsenal to attack this epidemic."

Voters opted to tweak the law twice, making substantial changes that weren't well publicized in those elections. Proposition 21 in 2000 removed the long-standing focus on specific kinds of robberies — those in someone's home and involving a "deadly or dangerous weapon" — and instead made "any robbery" a violent crime. In 2006, voters added more definitions of sex crimes.

And yet other crimes have long been sliced relatively thin. Only specific circumstances in the case of rape or first-degree burglary are on the list of violent crimes. It's doubtful, as a result, that the 23 offenses cover everything the average Californian would think of as being "violent."

This might not be a pressing issue if not for the changes brought on by Brown's 2016 ballot measure, which expanded parole opportunities to those serving time for a "nonviolent felony offense." That phrase is brand new, and Proposition 57 placed the term in the California Constitution.

It's unclear, though, whether "nonviolent felony offense" is just another way of saying any crime that's not on the list of violent crimes. A Sacramento Superior Court judge last month rejected that idea. At the same time, the judge ruled that some convicted sex offenders — who the Brown administration has deemed ineligible under Proposition 57 — should be considered for release because they weren't convicted of one of the 23 crimes.

Judge Allen Sumner's ruling seemed to hint that current law is full of knots crying out to be untangled. He wrote that "it is by no means clear what the voters understood, or intended, the term 'nonviolent' to mean."

Some prior related posts:

March 4, 2018 in Offense Characteristics, Sentences Reconsidered | Permalink | Comments (2)