March 31, 2018
Prez Trump declares April 2018 to be "Second Chance Month"
As reported in this official White House statement, President Donald Trump yesterday proclaimed April 2018 as "Second Chance Month." Here is the heart of the statement with a few lines stressed here that will become the basis for some commentary in a future post:
During Second Chance Month, our Nation emphasizes the need to prevent crime on our streets, to respect the rule of law by prosecuting individuals who break the law, and to provide opportunities for people with criminal records to earn an honest second chance. Affording those who have been held accountable for their crimes an opportunity to become contributing members of society is a critical element of criminal justice that can reduce our crime rates and prison populations, decrease burdens to the American taxpayer, and make America safer.
According to the Bureau of Justice Statistics, each year, approximately 650,000 individuals complete prison sentences and rejoin society. Unfortunately, two-thirds of these individuals are re-arrested within 3 years of their release. We must do more ‑‑ and use all the tools at our disposal ‑‑ to break this vicious cycle of crime and diminish the rate of recidivism.
For the millions of American citizens with criminal records, the keys to successful re-entry are becoming employable and securing employment. Beyond the income earned from a steady paycheck, gainful employment teaches responsibility and commitment and affirms human dignity. As a Nation, we are stronger when more individuals have stable jobs that allow them to provide for both themselves and their loved ones.
I am committed to advancing reform efforts to prevent crime, improve reentry, and reduce recidivism. I expressed this commitment in my 2018 State of the Union Address and reinforced it by signing an Executive Order to reinvigorate the “Federal Interagency Council on Crime Prevention and Improving Reentry.” In the spirit of these efforts, I call on Federal, State, and local prison systems to implement evidence-based programs that will provide prisoners with the skills and preparation they need to succeed in society. This includes programs focused on mentorship and treatment for drug addiction and mental health issues, in addition to job training.
This month, we celebrate those who have exited the prison system and successfully reentered society. We encourage expanded opportunities for those who have worked to overcome bad decisions earlier in life and emphasize our belief in second chances for all who are willing to work hard to turn their lives around.
NOW, THEREFORE, I, DONALD J. TRUMP, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim April 2018 as Second Chance Month. I call on all Americans to commemorate this month with events and activities that raise public awareness about preventing crime and providing those who have completed their sentences an opportunity for an honest second chance.
A few prior recent related posts:
- Interesting report of plans for Prez Trump to hold a "listening session on prison reform" this week
- Press reports indicate White House listening session to be focused only on reentry issues, not sentencing reform
- Notable comments by Prez Trump during meeting on prison review
- Encouraging new report on prospects for prison reform legislation emerging from Congress
- Prez Trump, in his first State of the Union address, mentions "reforming our prisons" and need to "get much tougher on drug dealers"
- Prez Trump speaks again about prison reform at the 2018 House and Senate Republican Member Conference
- Reviewing the potential import and impact of Prez Trump's talk of prison reform
March 30, 2018
Examining gender realities and disparities in modern federal sentencing
David Dagan has this interesting new piece at FiveThirtyEight under the headline "Women Aren’t Always Sentenced By The Book. Maybe Men Shouldn’t Be, Either." As this title suggests, the piece is about gender disparities in sentencing, and here are excerpts:
Official federal sentencing guidelines don’t distinguish between female and male offenders. They often downplay or outright disregard circumstances that are common among women, such as the role of an offender as the sole caretaker for children or an offender having been coerced into committing a crime. But judges commonly compensate ad hoc, which has led to women on the whole receiving much shorter sentences than men when facing the same punishments.
Critics say the sentencing benchmarks should provide more flexibility from the start — a change that would benefit women ... but also men in similar circumstances, whose extenuating factors may be even more likely to be overlooked. “The notion that you simply deal with a complicated situation by saying, ‘Let’s ignore the complexity,’ is idiotic,” said former federal judge Nancy Gertner, now a lecturer at Harvard Law School.
Congress established the U.S. Sentencing Commission in 1984 with the Sentencing Reform Act, partly in response to concerns that sentencing was marred by racial and geographic disparities. The commission was charged with writing the federal guidelines to remedy those problems, and it updates them occasionally.
But people of different races and genders still fare differently under the guidelines. Race looms large, according to a November 2017 report from the sentencing commission. It found that black men in federal court are sentenced to 19.1 percent more time, on average, than white men who, at least on paper, committed the same crimes and have similar criminal histories. Women receive much shorter sentences than even white men — though the difference also varies by race.
That disparity grows even larger when the full scope of discretionary decision-making is considered. Prosecutors exercise at least as much power as judges in sentencing because they decide what charges to bring after an arrest. A 2015 study from the University of Michigan Law School found that when such decisions are taken into account, sentences for men are on average 63 percent longer than sentences for women.
But women’s criminal involvement often looks different than men’s: They may be minor players in drug rings, are sometimes pushed into crime by a violent partner and often carry trauma from physical and sexual abuse.... More than 56 percent of the women in federal prison are there for drug offenses, compared with about 47 percent of men. In drug cases involving multiple people, each defendant can be held responsible for the full weight of the drugs involved, even if he or she were far down on the organizational chart. That approach is hard on women, who are often low-level players in such operations, experts said.
The guidelines do compensate by offering “role adjustments” for people who were merely drug mules, for example. But for many women, Gertner said, “those adjustments don’t begin to capture their insubstantial role.” So judges, who must consider the guidelines but since 2005 have not been compelled to follow them, may be responding with lower-than-recommended sentences.
Also largely excluded from the guidelines is any consideration of how a defendant got into crime in the first place. Yet research on incarcerated women shows that abusive relationships can put them on the wrong side of the law. Most women who assault their intimate partners have also been victimized by those partners, and they often cite self-defense as a motive. Researchers have also turned up many cases of incarcerated women who reported being forced into committing a crime by threats of violence.
A broader history of victimization is also common among female offenders. When researchers interviewed 125 women awaiting release from North Carolina prisons, they found that almost two-thirds had experienced childhood physical or sexual abuse and more than a quarter had been sexually victimized in the year before they went to prison. (Most studies do not draw explicit comparisons with men, but a survey of about 7,500 state prisoners conducted in 2005 found that while men and women had similar rates of childhood physical abuse, women had far higher rates of childhood sexual abuse.)
The sentencing guidelines set a high bar for considering such life experiences, and then only in cases involving nonviolent crimes. Judges are also discouraged from factoring in the role of drug addiction except in extraordinary circumstances.
The upshot is that the guidelines “disproportionately disadvantage anyone who has a significant trauma,” said Christine Freeman, who runs an Alabama organization that provides lawyers to poor clients charged with federal crimes. The exclusion of life experience may have been motivated by an effort to ensure that people of higher socioeconomic status could not work the system to their advantage, Freeman said. “But what it did was tell the courts that it was OK to ignore all these factors that obviously have motivated this situation and led a person to this point.”...
And the federal guidelines specifically discourage taking family considerations into account, declaring them “not ordinarily relevant” to sentencing. But they are certainly relevant to defendants like James who face separation from their children — and women appear to be particularly affected. Among federal prisoners in 2004, a higher share of men than women reported being the parents of minor children, but almost 80 percent of the mothers reported that they lived with their children just before incarceration, compared with half of the fathers. Gertner said that judges might be particularly sensitive to the consideration that sending parents away is bad for public safety: “We know as a public-safety measure that (in) families that have been fractured by imprisonment, there’s actually a risk to the next generation.”...
Whatever contributes to the sentencing difference, there are few voices arguing that the solution is longer sentences for women. Instead, as the University of Michigan study said, “Policymakers could equally sensibly ask: Why not treat men like women are treated?”
US District Judge concludes Miller applies to 18-year-old murderer to find his mandatory LWOP sentence violates the Eighth Amendment
I just saw this fascinating federal ruling handed down yesterday by US District Judge Janet C. Hall, the Chief Judge of the US District Court for the District of Connecticut, in Cruz v. US, No. 11-CV-787 (D. Conn. March 29, 2018) (available here). The ruling runs 50+ pages, so I will need to read it carefully before opining about it at length. But these excerpts from the start art end of the opinion should reveal why it is worth attention:
Cruz turned 18 on December 25, 1993. On May 14, 1994, when Cruz was 18 years and 20 weeks old, Cruz and another member of the Latin Kings, Alexis Antuna, were given a mission by gang leader Richard Morales. See United States v. Diaz, 176 F.3d 52, 84 (2d Cir. 1999). The mission was to kill Arosmo “Rara” Diaz. See id. Carrying out that mission, Cruz and Antuna shot and killed Diaz and his friend, Tyler White, who happened to be with Diaz at the time. See id. Cruz testified at the hearing before this court that he now admits to committing both murders. See Cruz Tr. at 27. He further testified that Antuna informed him at the time that the leaders of the Latin Kings were debating what would happen to him as a result of his attempt to leave the gang. See id. at 19. According to his testimony, Cruz believed that, if he did not carry out the mission, he himself would be killed. See id....
[W]hen the Roper Court drew the line at age 18 in 2005, the Court did not have before it the record of scientific evidence about late adolescence that is now before this court.
Thus, relying on both the scientific evidence and the societal evidence of national consensus, the court concludes that the hallmark characteristics of juveniles that make them less culpable also apply to 18-year-olds. As such, the penological rationales for imposing mandatory life imprisonment without the possibility of parole cannot be used as justification when applied to an 18-year-old.
The court therefore holds that Miller applies to 18-year-olds and thus that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole” for offenders who were 18 years old at the time of their crimes. See Miller, 567 U.S. at 479. As applied to 18-year-olds as well as to juveniles, “[b]y making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” See id. As with Miller, this Ruling does not foreclose a court’s ability to sentence an 18-year-old to life imprisonment without parole, but requires the sentencer to take into account how adolescents, including late adolescents, “are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” See id. at 480.
I think it a near certainty that the feds will appeal this consequential ruling to the Second Circuit and it will be interesting to watch how that court approaches this issue. And, in all likelihood, whatever the outcome in the Second Circuit, a cert petition would follow. So, stay tuned.
March 30, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)
Texas woman sentenced to five years in prison (!?!?!) for voting illegally
When I first saw the basics of this state sentencing story out of Texas, reported under the headline "Tarrant County woman sentenced to five years in prison for illegally voting in 2016," I did not really believe it. Even after reading the details excerpted below, I am still not quite sure I believe that a judge decided it was just and effective to send someone to prison for half a decade for casting a vote illegally:
A judge sentenced a Rendon woman to five years in prison Wednesday for voting illegally in the 2016 presidential election while she was on supervised release from a 2011 fraud conviction. Crystal Mason, 43, waived her right to a jury trial and chose to have state District Judge Ruben Gonzalez assess her sentence.
J. Warren St. John, her defense attorney, said after the verdict was rendered that an appeal had already been filed and he is hopeful his client will soon be released on bond. "I find it amazing that the government feels she made this up," St. John told the court. "She was never told that she couldn't vote, and she voted in good faith. Why would she risk going back to prison for something that is not going to change her life?"...
During her testimony, Mason — who served just shy of three years in federal prison — told the court that she was assigned a provisional ballot after she arrived at her usual polling place and discovered that her name was not on the voter roll.
Gonzalez, who questioned Mason during her testimony, asked why she did not thoroughly read the documents she was given at the time. The form you are required to sign to get the provisional ballot is called an affidavit, Gonzales told Mason. "There's a legal connotation to that, right?" Gonzales asked.
Mason responded that she was never told by the federal court, her supervision officer, the election workers or U.S. District Judge John McBryde, the sentencing judge in her fraud case, that she would not be able to vote in elections until she finished serving her sentence, supervised release included. She also said she did not carefully read the form because an election official was helping her.
During cross-examination by Tarrant County prosecutor Matt Smid, Mason was reminded that she had jeopardized her freedom in the past by violating federal tax laws. Sacrificing her freedom to vote was not something she would knowingly do, Mason told Gonzales. "I inflated returns," Mason said. "I was trying to get more money back for my clients. I admitted that. I owned up to that. I took accountability for that. I would never do that again. I was happy enough to come home and see my daughter graduate. My son is about to graduate. Why would I jeopardize that? Not to vote. ... I didn't even want to go vote."
Mason was taken to jail after the conclusion of her trial on Wednesday as a chorus of small children leaving the courtroom waved and said, "Bye-bye, Big Mama."
Mason, who was known as Crystal Mason-Hobbs at the time, pleaded guilty to fraud in 2011. As part of her plea agreement, she was ordered to pay $4.2 million in restitution, according to court documents. The fraud charge stemmed from a tax preparation business Mason and her ex-husband, Sanford Taylor Hobbs III, owned and operated in Everman in which they submitted inflated tax refunds to the Internal Revenue Service on behalf of clients.
Mason later divorced her husband, who received a similar sentence after he also pleaded guilty. Mason testified Wednesday that she has remade herself since her release from prison, including getting a degree in a new field and getting a new job.
She had gone to vote at her mother's insistence and brought her driver's license as identification, according to her testimony. When poll workers could not find her name on the list of registered voters, Mason said, she obtained a provisional ballot and was coached through the process by a worker. Mason testified that she did not remember the form saying anything about people on supervised release being prohibited from voting.
To register to vote in Texas, a person must be 18 and a U.S. citizen and cannot be a convicted felon or have been declared mentally incapacitated by a court. In Texas, convicted felons can have their voting privileges restored after fully completing their sentences.
I really cannot fully wrap my mind around the notion that the crime of voting once illegally, even if done with great malice, is the sort of offense that should or even could lead to multiple years in prison. Of course, one might think this is a story about how tough Texas is with all criminals. But a quick Google new search produces these recent stories of seemingly much worse crimes resulting in probation sentences in Texas:
March 29, 2018
Some more perspective on the crime-and-punishment thinking of AG Jeff Sessions
Time magazine has this new lengthy cover story on Attorney General Jeff Sessions. The whole piece is an interesting read, and here are some excerpts sentencing fans are likely to find of interest:
Sessions believes today’s low crime rates are a direct result of “proactive policing” and harsh sentences, and that dialing them back is causing crime to rise. According to the FBI, the violent crime rate rose 7% between 2014 and 2016, and the murder rate rose 20%, following years of decline.
Sessions has moved swiftly to unwind the Obama Justice Department’s policies. He canceled the “smart on crime” initiative and replaced it with a directive to pursue maximal charging and sentencing. He pulled out of the consent decrees and rescinded Holder’s hands-off marijuana-enforcement policy. He announced the end of DACA, stepped up deportation orders and sued California over sanctuary cities.
He has embraced Trump’s call to impose the death penalty on some drug dealers, which some legal scholars consider unconstitutional. Emphasizing treatment for drug addicts isn’t just ineffective, according to Sessions -- it’s dangerous. “The extraordinary surge in addiction and drug death is a product of a popular misunderstanding of the dangers of drugs,” he told me. “Because all too often, all we get in the media is how anybody who’s against drugs is goofy, and we just ought to chill out.”
In February, Sessions sent a letter warning the Senate that a bill to reduce federal sentences risked “putting the very worst criminals back into our communities.” (An outraged Chuck Grassley, the Republican Senator from Iowa, told reporters that if Sessions wanted to keep making laws, he should go back to elected office.) Sessions believes his erstwhile colleagues have been misled. “This whole mentality that there’s another solution other than incarceration,” he told me, “all I will say to you is, people today don’t know that every one of these things has been tried over the last 40 years.”
Sessions seemed exasperated when I asked him to address the disproportionate impact of harsh policing and incarceration on black families and communities. He cited the work of Heather Mac Donald, the controversial conservative scholar who argues that racial bias in the criminal-justice system is a myth and that the real problem is a “war on cops.” Mac Donald popularized the concept of the “Ferguson effect,” an unproven theory that crime rises when police feel hamstrung by political oversight. Sessions embraces this notion. In cities like Baltimore and Chicago, he told me, politicians “spend all that time attacking the police department instead of the criminals.”...
Sessions contends that the policies he champions help minority communities by cleaning up their neighborhoods. “If you do the map of your city and you’ve got five times the murders in a minority neighborhood, do you just go away?” he asked me, eyes narrowed. “Or do you prosecute the criminals who are committing the murders? That’s the fundamental answer. And the other thing is, you think the mothers who’ve got children, the older people who are afraid to walk to the grocery store -- shouldn’t they be free just like they are in the elite part of town?”
Sessions leaned over the plastic airplane table. “Whose side are you on?” he asked. “I’m on the victims’ side, and overwhelmingly the victims are minorities. The prosecution of certain minorities for murder, the victim is overwhelmingly another African American or Hispanic. It occurs within their own communities.” (Law-enforcement statistics show white criminals also tend to target white victims.)
His eyes gleamed as he sat back. “We are protecting minority citizens,” he concluded. “The fundamental question is, Who rules the streets? The government, or the outlaws?”
"The Excessive Fines Clause: Challenging the Modern Debtors' Prison"
The title of this post is the title of this new article by Beth Colgan now available via SSRN. Here is the abstract:
In recent years, the use of economic sanctions-statutory fines, surcharges, administrative fees, and restitution-has exploded in courts across the country. Economic sanctions are imposed for violations as minor as jaywalking and as serious as homicide, and can range from a few dollars to millions. When a person is unable to immediately pay off economic sanctions, "poverty penalties" are often imposed, including interest and collections fees and probation. Failure to pay economic sanctions can result in serious consequences, including prohibitions on obtaining or suspensions of driver's and occupational licenses, restrictions on public benefits, and even incarceration. Even when poverty penalties are not employed, an inability to pay off criminal debt means that the punishment imposed, even for very minor offenses, can effectively be perpetual. Desperate to avoid these repercussions, people go to extremes to pay. In an alarming number of cases people report having to forego basic necessities like food, housing, hygiene, or medicine, in order to pay what little they can, even if just a few dollars at a time. These and countless other stories of people trapped in persistent debt are becoming ubiquitous, and have raised the specter that current practices amount to modern day debtors' prisons.
Constitutional challenges to such practices have primarily focused on the narrow window of the post-sentencing collections context, relying on a series of Fourteenth Amendment cases prohibiting the automatic conversion of economic sanctions to incarceration where a debtor has no meaningful ability to pay. While these challenges can provide an important post hoc protection against the use of incarceration as a penalty for the failure to pay, they do not address the financial instability exacerbated by and ongoing threat of incarceration raised by debt from unmanageable economic sanctions.
A separate, albeit underdeveloped, constitutional provision that may be better suited to addressing the debtors' prison crisis lies in the Eighth Amendment's Excessive Fines Clause, which provides protection at sentencing. To date, the United States Supreme Court has only determined that criminal and civil forfeitures constitute fines. This Article examines the key concerns underlying those determinations, explicating the Court's interest in treating economic sanctions as fines where they are used by the government to punish-evidenced by a link to prohibited conduct or treatment of economic sanctions like other recognized forms of punishment-as well as the Court's desire that the Clause serve as a bulwark against the risk that the prosecutorial power will be abused due to the revenue generating capacity of economic sanctions. Applying these core concerns supports the conclusion that common forms of economic sanction (including statutory fines, surcharges, administrative fees, and restitution) constitute fines for purposes of the Clause.
In addition, this Article examines the meaning of excessiveness, arguing that one's ability to pay is relevant to the question of whether a fine is constitutional. The Court has adopted the Cruel and Unusual Punishments Clause's gross disproportionality test for measuring excessiveness. Attending to financial circumstances in the excessiveness inquiry is in harmony with key principles animating the proportionality doctrine: equality in sentencing, comparative proportionality between offenses of different seriousness, the expressive value of punishment, concern for the criminogenic effect of and other social harms caused by punishment, and the prohibition on punishments that unreasonably infringe on human dignity.
Judge Jed Rakoff sentences rapper DMX to one year in federal prison for tax fraud
US District Court Judge Jed Rakoff has long been a vocal advocate against mass incarceration and other problems he seeing is the operation of the federal criminal justice system. But that view did not preclude him from thinking he needed to send a notable white-collar criminal to federal prison yesterday as reported in this local article (which provides a nice short review of the parties' sentencing arguments):
Embattled rapper DMX was sentenced Wednesday to one year in prison for tax fraud — but insisted he wasn’t “like a criminal in a comic book” trying to scheme against the government. DMX, real name Earl Simmons, admitted in November to evading $1.7 million in taxes. He was also given three years of supervised release.
The 47-year-old performer, whose top songs include “Party Up (Up in Here),” stood accused of hiding money from the IRS from 2010 to 2016 — largely by maintaining a “cash lifestyle.” “I knew that taxes needed to be paid,” Simmons said shortly before Manhattan Federal Judge Jed Rakoff handed down his sentence. “I hired people but I didn’t follow up. I guess I really didn’t put too much concern into it.
“I never went to the level of tax evasion where I’d sit down and plot . . . like a criminal in a comic book,” said Simmons, who grew teary at points during the proceeding.
Prosecutors had pushed for Rakoff to hit Simmons with a sentence ranging from four years and nine months up to five years in prison. In their sentencing papers, prosecutors urged Rakoff to "use this sentencing to send the message to this defendant and others that star power does not entitle someone to a free pass, and individuals cannot shirk the duty to pay their fair share of taxes."
Simmons' lawyers, Murray and Stacey Richman, asked Rakoff for a sentence of in-patient rehab. With treatment — and strict supervision — Simmons could keep performing, allowing him to repay his whopping tax debt, they insisted. They also floated the idea Rakoff could appoint a trustee who would oversee Simmons' business dealings — making sure the tax man got paid. They maintained that Simmons' traumatic and impoverished upbringing led him astray as an adult, including toward addiction and bad financial decisions — but that he has a talent to "make beauty out of ugliness."
The Richmans played the music video for Simmons' 1998 song "Slippin'", claiming lyrics such as "If I'm strong enough I'll live long enough to see my kids/Doing something more constructive with their time than bids" indicate his search for redemption through art. "He is the American dream, and sometimes the American dream takes you to court," Stacey Richman said. "He has been able to raise himself from the ghetto."
Rakoff sympathized with Simmons, saying he was another example of how "the sins of the parents are visited upon their children" — but felt prison was necessary to deter would-be tax fraudsters....
Other performers have done time for tax raps.
Former Fugees singer Lauryn Hill got a three-month sentence in federal lockup for not paying taxes on $1.5 million in income from 2005 to 2007.
Fat Joe, whose legal name is Joseph Antonio Cartagena, got four months in federal prison after he didn't file tax returns on more than $3 million in income.
Ja Rule, who is legally named Jeffrey Atkins, received a 28-month sentence for not filing tax returns that ran concurrently with a two-year weapons sentence, according to reports.
March 28, 2018
"What If Prosecutors Wanted to Keep People Out of Prison?"
The question in the title of this post is the headline of this lengthy New York Magazine article, which is primarily focused on Scott Colom, a 35-year-old district attorney in northeast Mississippi. But the article also covers how Colom is part of a new focus on prosecutors within efforts to reform criminal justice systems. Here are excerpts from a long article:
By mid-October, with the  election a few weeks away, Colom knew he was gaining traction. Then a colleague sent him a text message complimenting his new TV commercial. “I was like, What are you talking about?” Television hadn’t fit into his budget. Later in the week, his aunt managed to record the ad on her DVR, and he watched it at her house. A voice at the end said it was paid for by a group called Mississippi Safety & Justice.
He looked it up online and discovered it was a PAC funded by liberal hedge-fund billionaire George Soros, who lives in Westchester County, New York. Bemused, Colom sought advice from consultants in Washington, D.C., who’d been helping him with marketing. They advised Colom to post photos and videos on his website for the PAC to borrow for future ads but warned him not to reach out to the group. Campaign-finance laws forbid direct contact between candidates and independent funders. Colom followed the advice, then went back to knocking on doors....
In the end, Mississippi Safety & Justice had spent $716,000 on the election, dwarfing both the $49,000 Allgood had raised and the $150,000 Colom collected himself. Allgood groused that the money had created an uneven playing field, and Colom himself is defensive about it, even now. But whatever the donation’s impact on the race, it put Colom at the center of a national experiment to remake the criminal-justice system.
For almost three decades, Soros has been quietly funding efforts to end the drug war and reduce the inmate population. Throughout the ’90s and 2000s, he was behind almost every state ballot initiative to legalize marijuana and has given millions in grants for liberal legal scholarship. It was Colom’s luck that in 2015 he’d adopted a new strategy: backing progressives in local elections, specifically DAs, who every day make decisions about whom to charge, with how serious of a crime; whether to engage in plea negotiations; how much prison time, if any, to recommend. In other words, unlike legislators, government lawyers have the power to push down incarceration rates with the stroke of a pen, or a word to a judge. Colom was one of his first test cases....
By the end of his first year in office, Colom had doubled, to 218, the number of defendants in the alternative sentencing program, where if you stay clean and get a job or go to school your charges will eventually be cleared. The scope of the program’s services has expanded too; the administrator, a former social worker, helps participants get into rehab, GED programs, and vocational training, and even arranges rides when necessary, since the area has no bus system.
While alternative sentencing isn’t revolutionary — there are similar programs across the country — it’s a scale model of what Colom has in mind when he dreams of a system built on different incentives. “What we’ve got to do is deal with the addiction that causes people to use drugs,” he says, musing that maybe prisons should be scored on how effectively they rehabilitate people, the way public schools are scored on student achievement. More immediately, Colom is strategizing with Tucker Carrington, a law professor who runs the University of Mississippi’s innocence project, to establish a conviction-review unit, as DAs in Brooklyn, Chicago, Dallas, and other metropolises have done.
"Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment"
The publication Recidivism Among Federal Offenders Receiving Retroactive Sentence Reductions: The 2011 Fair Sentencing Act Guideline Amendment analyzes recidivism among crack cocaine offenders who were released immediately before and after implementation of the 2011 Fair Sentencing Act Guideline Amendment, and followed in the community for three years.
In order to study the impact of retroactive sentence reductions on recidivism rates, staff analyzed the recidivism rate for a group of crack cocaine offenders whose sentences were reduced pursuant to retroactive application of the 2011 Fair Sentencing Act Guideline Amendment. Staff then compared that rate to the recidivism rate for a comparison group of offenders who would have been eligible to seek a reduced sentence under the 2011 amendment, but were released before the effective date of that amendment after serving their full prison terms less good time and other earned credits.
The Commission's report aims to answer the research question, "Did the reduced sentences for the FSA Retroactivity Group result in increased recidivism?".
Key findings of the Commission’s study are as follows:
The recidivism rates were virtually identical for offenders who were released early through retroactive application of the FSA Guideline Amendment and offenders who had served their full sentences before the FSA guideline reduction retroactively took effect. Over a three-year period following their release, the “FSA Retroactivity Group” and the “Comparison Group” each had a recidivism rate of 37.9 percent.
Among offenders who did recidivate, for both groups the category “court or supervision violation” was most often the most serious recidivist event reported. Approximately one-third of the offenders who recidivated in both groups (32.9% for the FSA Retroactivity Group and 30.8% for the Comparison Group) had court or supervision violation as their most serious recidivist event.
Among offenders who did recidivate, the time to recidivism for both groups were nearly identical. The median time to recidivism for offenders who recidivated in both groups was approximately 14½ months.
March 28, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Implementing retroactively new USSC crack guidelines, New crack statute and the FSA's impact, New USSC crack guidelines and report | Permalink | Comments (7)
Latest update on battles over criminal justice reform inside the Trump Administration
The New York Times has this lengthy new article under the headline "Sessions and Kushner Square Off, and Prisoners Hang in the Balance." It covers ground that will largely be familiar to regular readers, and here are a few excerpts:
In the final months of the Obama administration, the Justice Department announced a new approach to preparing prisoners for life beyond their cells. Officials created a prison school system, pledged money for technology training and promised to help prevent former inmates from returning to prison.
Almost immediately after taking office, Trump administration officials began undoing their work. Budgets were slashed, the school system was scrapped and studies were shelved as Attorney General Jeff Sessions brought to bear his tough-on-crime philosophy and deep skepticism of Obama-era crime-fighting policies.
Now, nearly a year and a half later, the White House has declared that reducing recidivism and improving prisoner education is a top priority — echoing some of the very policies it helped dismantle.
This whiplash approach to federal prison policy reflects the tension between Jared Kushner, the president’s reform-minded son-in-law and senior adviser, and Mr. Sessions, a hard-liner whose views on criminal justice were forged at the height of the drug war. It has left both Democratic and Republican lawmakers confused and has contributed to skepticism that the Trump administration is serious about its own proposals....
Mr. Kushner, administration officials say, supports such sweeping change. Mr. Sessions is adamantly opposed. The two men reached a compromise in recent months: Mr. Kushner could push for the prison changes, but Mr. Sessions would position the administration strongly against a broader overhaul.
“I do believe that Jared Kushner is earnest in his desire for criminal justice reform,” said Inimai M. Chettiar, of the liberal-leaning Brennan Center for Justice. “But Jeff Sessions is still stuck in 1980. He hasn’t moved along with everyone else, including top prosecutors and police chiefs, who realize that tough-on-crime doesn’t work.” Ms. Chettiar said she was not convinced that Mr. Kushner’s support was enough to get the administration behind real change — even in the narrow area of prisons.
The Justice Department said Mr. Sessions fully supported the White House principles and was committed to helping inmates develop the skills needed to return to society. But Mr. Sessions is not rushing to promote those efforts: Over two weeks, the Justice Department refused to make anyone available to discuss them and would not identify which prison education programs have been cut and which remain. “They’re not going to talk to you about this,” said Joe Rojas, a teacher at the federal prison complex in Coleman, Fla. He said the Justice Department could not answer those questions without acknowledging that the Trump administration had cut more than 6,000 prison jobs. Staffing is so short that teachers around the country are regularly reassigned to cover routine guard duties, he said.
One of the White House priorities is to offer incentives to encourage inmates to enroll in programs to prepare them for life outside prison. Mr. Rojas and others are quick to note that incentives are not the problem: Educational programs are so popular that more than 15,000 federal inmates are on waiting lists for high school equivalency diploma and literacy programs, according to a 2016 Justice Department report. “It sounds pretty on paper,” said Mr. Rojas, who is the president of his American Federation of Government Employees union local. “But when you cut staff, you can’t do anything.”
Mr. Grassley said that he while appreciated Mr. Kushner’s desire to get something done, he did not support any effort to try to address prisons without fixing what he saw as fundamental unfairness in sentencing laws. And he believes Mr. Kushner shares his views. “But he sees a chance of getting half a loaf, and he’s willing to settle for a half a loaf,” Mr. Grassley said. “I’m not going to.”
The White House argues that Mr. Grassley’s argument is moot because the Senate majority leader, Mitch McConnell of Kentucky, will not allow a vote on a broad criminal justice bill that divides Republicans. Mr. Grassley sees that as an excuse. “If the president would start tweeting about it every other day like he tweets about everything else, McConnell would come along,” he said.
Mr. Kushner believes that the White House can forge consensus around prison reform. He wants the federal government to look to states for proven ideas to reduce recidivism. The White House recently hired Brooke Rollins, a conservative lawyer who advocated such changes in Texas, a state that is often held up by both conservatives and liberals as a leader in reducing recidivism.
Amy Lopez, a former teacher in the Texas prison system, agreed that the federal government could learn from states. More data exists than ever before, she said, and it shows that education reduces the chance that a former inmate will be arrested again.
The Justice Department hired Ms. Lopez in 2016 to replace the patchwork prison education system with a centralized school district that offered diplomas, technology training and vocational education. “It was interesting to have this focus at the federal level on education,” she said. “That was new.”
Within months, she was fired, the school system axed. She took a job overseeing education in Washington’s city corrections system. Trump administration officials say that, as part of the new focus on prisons, if the school idea turns out to have been a good one, they can always reconsider it.
March 27, 2018
Texas completed fourth execution on 2018
As reported here, a "man dubbed Lubbock’s 'suitcase killer' was executed Tuesday evening, one day after his 38th birthday." Here is more:
Rosendo Rodriguez was sentenced to death in the 2005 murder and sexual assault of Summer Baldwin, a newly pregnant prostitute, according to court records. Baldwin’s body was found folded inside a suitcase at the city’s landfill. Rodriguez was also implicated in the 2004 murder of 16-year-old Joanna Rogers, whose body was also found in a suitcase in the landfill after Baldwin was discovered.
Just minutes before his execution was scheduled at 6 p.m., the U.S. Supreme Court denied his final appeal, and the process to put Rodriguez to death began on time. He was placed on a gurney, connected to an IV, and uttered his last words while his family and the parents of Baldwin and Rogers watched on through a glass pane. In his final statement, Rodriguez called for an investigation into the Lubbock County district attorney and medical examiner, saying they were involved in thousands of wrongful convictions. He also called for a boycott of Texas businesses until the death penalty is stopped....
He died at 6:46 p.m., 22 minutes after a lethal dose of pentobarbital was injected into his veins. He was the fourth person executed in Texas this year and the seventh in the nation.
After botched effort last month, Alabama agrees not to try again to execute Doyle Lee Hamm
As reported in this NBC News piece, an "Alabama death-row inmate who survived a botched lethal injection will not face another date with death under a settlement his attorney struck with the state." Here is more:
Doyle Lee Hamm filed a civil rights action last month after the prison medical team repeatedly punctured him in an effort to place an IV before calling off the execution just before his death warrant expired.
His attorney, Columbia law professor Bernard Harcourt, said the procedure amounted to "torture" and was so painful that the 69-year-old Hamm hoped for a quick death. "During this time Mr. Hamm began to hope that the doctor would succeed in obtaining IV access so that Mr. Hamm could 'get it over with' because he preferred to die rather than to continue to experience the ongoing severe pain," Dr. Mark Heath, who was retained by Harcourt to examine Hamm, wrote in a report after examining the inmate.
Hamm was sentenced to death for the 1987 murder of hotel clerk Patrick Cunningham.
His legal team warned the state that his veins were in such bad shape from drug use and cancer treatment that it would be very challenging, if not impossible to place the needle that would deliver the lethal drugs.
After that prediction proved true, Harcourt and the state began confidential negotiations. The result is that the state won't set another execution date and Hamm will drop his legal challenges.
Prior related post:
"The Scale of Misdemeanor Justice"
the title of this post is the title of this notable new paper authored by Megan Stevenson and Sandra Mayson now available via SSRN. Here is its abstract:
This Article seeks to inform misdemeanor scholarship and policy by creating the most comprehensive national-level analysis of misdemeanor criminal justice that is currently feasible given the state of data collection in the United States. First, we estimate that there are 13.2 million misdemeanor cases filed in the United States each year. Second, contrary to conventional wisdom, this number is not rising. Both the number of misdemeanor arrests and cases filed have declined markedly in recent years. In fact, arrest rates for almost every misdemeanor offense category have been declining for at least two decades in almost every state for which data is available. Third, there is profound racial disparity in the misdemeanor arrest rate for most — but not all — offense types. This is sobering if not surprising. More unexpectedly, perhaps, the variation in racial disparity across offense types has remained remarkably constant over the past thirty-seven years; the offenses marked by the greatest racial disparity in arrest rates in 1980 are more or less the same as those marked by greatest racial disparity today.
Our national caseload estimate confirms current perceptions about the scale of misdemeanor justice, but the declining arrest and case-filing rates present a challenge for misdemeanor scholarship. Contemporary research on misdemeanors has been influenced by the impression that the system is expanding. As a result, the theoretical contributions made by recent scholars provide no immediate explanation for the decline in misdemeanor arrests and case-filing rates. In addition, we document what to us was a surprising degree of uniformity in misdemeanor trends. Such consistency suggests that the misdemeanor system may have a deeper and more uniform structure than we anticipated, and may be subject to common influences across jurisdictions. As misdemeanor scholarship develops, we believe that an important challenge is to expand our theories of misdemeanor justice to make sense of the statistical patterns presented here.
SCOTUS day for considering rules for prison sentence modification based on changed guidelines
The US Supreme Court this morning hears oral argument in two cases involving application of 18 U.S.C. §3582(c)(2), which allows a federal judge to modify a federal prison term for a "defendant who has been sentenced to a term of imprisonment based on a sentencing range that has subsequently been lowered by the Sentencing Commission." Here are links to the SCOTUSblog case pages and previews for both cases (the second preview I authored):
Hundreds, perhaps thousands, of current federal prisoners might have their sentences directly impacted by these cases. Table 8 of the US Sentencing Commission's latest report on retroactive application of the reduction of the drug guidelines suggests that over 750 defendants may have been denied a reduced sentence based on the issue to be considered in Hughes and that nearly 3000 defendants may have been denied a reduced sentence based on the issue to be considered in Koons. And, as always with criminal justice cases these days, I am especially interested to see if and how the new guy, Justice Gorsuch, approaches and frame the issue under consideration.
March 26, 2018
"The War on Drugs Breeds Crafty Traffickers"
The title of this post is the title of this notable new op-ed in the New York Times authored by Sanhoe Tree. I recommend the piece is full, and here are excerpts:
Politicians often escalate drug war rhetoric to show voters that they are doing something. But it is rare to ignore generations of lessons as President Trump did earlier this month when he announced his support for the execution of drug traffickers. This idea is insane. But the war on drugs has never made any sense to begin with.
Executing a few individual smugglers will do little to stop others because there is no high command of the international drug trade to target, no generals who can order a coordinated surrender of farmers, traffickers, money launderers, dealers or users. The drug trade is diffuse and can span thousands of miles from producer to consumer. People enter the drug economy for all sorts of reasons — poverty, greed, addiction — and because they believe they will get away with it. Most people do. The death penalty only hurts the small portion of people who are caught (often themselves minorities and low-level mules).
Indeed, on the ground, the threat of execution will even help those who aren’t caught because they can charge an increased risk premium to the next person in the smuggling chain. The risk of capture and punishment increases as drugs move from farm to processing lab, traversing jungles, through cities, across oceans, past borders, distributed by dealers and purchased by consumers. The greater the risk to smugglers in this chain, the more they can demand in payment....
An overreliance on intensive policing over the decades has also produced a rapid Darwinian evolution of the drug trade. The people we have typically captured tend to be the ones who are dumb enough to get caught. They may have violated operational security, bragged too much, lived conspicuous lifestyles or engaged in turf wars. The ones we usually miss tend to be the most innovative, adaptable and cunning. We have picked off their clumsy competition for them and opened up that lucrative economic trafficking space to the most efficient organizations. It is as though we have had a decades-long policy of selectively breeding supertraffickers and ensuring the “survival of the fittest.”
To support his case for executions, Mr. Trump cites draconian penalties in other countries. Iran has used the death penalty extensively in drug cases, but more than 2.8 million Iranians still consume illicit drugs. Earlier this year, the Iranian government even repealed the use of executions in most drug cases which could spare up to 5,000 people on death row.
Mr. Trump often praises President Rodrigo Duterte’s brutal drug war in the Philippines, which has claimed 12,000 to 20,000 lives in mostly extrajudicial killings. But there is little indication that drug use has actually decreased. In fact, as the killings have increased, so too have the government’s drug use estimates. What began as 1.8 million users at the beginning of 2016 grew to three million and later four million. Last September, the Philippine Foreign Secretary, Alan Peter Cayetano, even raised that estimate to seven million. The higher numbers are likely inflated, but more killings do not appear to reduce the number of users.
Singapore notoriously refuses to publish reliable drug-use statistics, so there is no way to show whether executions have any measurable effect on drug consumption. As Harm Reduction International pointed out, however, Singapore’s seizures for cannabis and methamphetamine increased 20 percent in 2016 while heroin seizures remained stable. Moreover, 80 percent of Singapore’s prisoners are incarcerated for drug-related offenses. All of this suggests, Singapore’s famous panacea to solve the drug problem is not as miraculous as it seems....
Mr. Trump is not advancing a new strategy to deal with opioids. It was President Clinton who put these death penalty statutes on the books as part of the 1994 crime bill, but they remain unused. Mr. Trump and Attorney General Jeff Sessions are trying to change that. They want to use those laws in racketeering cases and ones involving large quantities of drugs even though the Supreme Court has ruled that capital punishment should be reserved only for crimes resulting in death.
The Donald Trump of 2018 should take a lesson from the Donald Trump of 1990 when he told the Miami Herald: “We are losing badly the war on drugs. You have to legalize drugs to win that war.”
Ohio Gov. Kasich commutes yet another death sentence
As reported in this FoxNews piece, the Governor of Ohio commuted yet another death sentence today. Here are some details explaining why (with an emphasis on a final fact in the article):
Ohio Gov. John Kasich Monday spared a condemned killer who was set to die April 11 for fatally shooting a woman more than three decades ago during a robbery after questions were raised about discrepancies in the case and the fairness of the trial.
The Republican governor's release said his decision followed the report and recommendation of the Ohio Parole Board, which voted 6-4 on March 16 in favor of clemency for death row inmate William Montgomery. Kasich had no additional comment, his spokesman Jon Keeling said.
Montgomery was sentenced to die for the 1986 shooting of Debra Ogle during a robbery in the Toledo area. In its ruling, the parole board concluded that commuting Montgomery's sentence to life without the possibility of parole was warranted, which is what Kasich did....
The board majority noted that two jurors said after the trial they had difficulty understanding the law, and one juror was permitted to remain on the jury despite exhibiting "troubling behavior and verbalizations" that raised questions over fitness. The majority also cited concerns that a police report in which witnesses said they saw Ogle alive four days after Montgomery is alleged to have killed her was never presented to the defense.
A federal judge and a panel of the 6th U.S. Circuit Court of Appeals ruled Montgomery deserved a new trial based in part on the missing report. But the full 6th Circuit rejected that argument. The witnesses later said they mistook Ogle's sister for the missing woman.
"The failure to disclose that report coupled with the issues described above relative to Montgomery's jurors raise a substantial question as to whether Montgomery's death sentence was imposed through the kind of just and credible process that a punishment of this magnitude requires," the parole board said on March 16....
Since taking office, Kasich has allowed 13 executions to proceed and has now spared six inmates.
The 21-page Ohio Parole Board recommendation for clemency is available at this link.
This capital commutation, as noted in the article, is the sixth granted by Gov Kasich. That now exceeds the number of capital commutations by his predecessor, Ted Strickland, though Gov Strickland's did five capital clemency grants in a single term while Gov Kasich has needed two terms to get best Strickland's number. And I believe Ohio Gov Richard Celeste still hold the state's modern record as he commuted eight death sentences as he was leaving office in 1991.
"Deviancy, Disability, and Dependency: The Forgotten History of Eugenics and Mass Incarceration"
The title of this post is the title of this new paper authored by Laura Appleman now available via SSRN. Here is the abstract:
Racism, harsh drug laws, and prosecutorial overreach have formed three widely-discussed explanations of the punitive carceral state. These three narratives, however, only partially explain where we are. Neglected in our discussion of mass incarceration is our largely-forgotten history of the long-term, wholesale institutionalization of the disabled. This form of mass detention, motivated by a continuing application of eugenics and persistent class-based discrimination, provides an important part of our history of imprisonment, shaping key contours of our current supersized correctional system. Only by fully exploring this forgotten narrative of long-term detention and isolation will policy makers be able to understand, diagnose, and solve the crisis of mass incarceration.
High-profile New Jersey case highlights many challenges of sentencing drunk drivers who kill (and appellate review of sentences)
This local article, headlined "Former 'Melrose Place' actress to be re-sentenced -- again -- in fatal drunken crash," reports on yet another notable sentencing opinion from a high-profile state sentencing case. Here are the basics from the article, with the full opinion and follow-up thereafter:
Former "Melrose Place" actress Amy Locane who was convicted of killing a 60-year-old woman in a drunken 2010 crash will be re-sentenced -- for the second time. An appellate court ruling issued Friday lambasts the judge's lenient three-year sentence for Locane, calling it "striking."
"We expect our colleagues will agree that the sentence in this case, a hair's breath away from illegal, shocks the conscience," the appellate ruling states.
In August 2016, the state's Appellate Division ruled that the leniency granted by state Superior Court Judge Robert B. Reed in sentencing Locane in the Montgomery Township crash that killed Helene Seeman lacked enough explanation. Locane returned to court for resentencing on Jan. 17, 2017. Reed did not give her any additional jail time, angering the victim's family and leaving prosecutors bewildered.
It appears a three-judge appellate court panel is just as confused. "(Locane) went unpunished for the injuries inflicted upon Seeman, despite the fact she could have easily made alternative arrangements the night of the accident and could have easily avoided driving, was extremely intoxicated, and was engaging in risky maneuvers before the crash," the appellate ruling states. "That is an error we cannot correct."
Locane, who was driving with a blood-alcohol level three times the legal limit during the June 27, 2010, crash, was cleared of the manslaughter charge but found guilty of vehicular homicide and assault by auto.
Locane faced up to 15 years in prison. Reed imposed a sentence that was about a fifth of what she faced under the maximum penalty. He cited the former actress' two small children, including one with Crohn's disease, as a reason for the lenient sentence. Locane was out of prison in two-and-a-half years.
In a sit-down interview with NJ Advance Media in November, Locane said she hadn't touched alcohol since the crash. "I know Judge Reed went out on the limb for me and I'm not going to let him down," she said. "When someone sees the good in you like that and gives you a second chance, you don't want to disappoint them."
But Locane's fate this time around won't be up to Reed. "We are thus compelled to remand this matter for re-sentencing before a different judge," the appellate ruling says.
Locane's attorney, James Wronko, said the comments made by the appellate division about Reed "were simply unwarranted."
"Judge Reed is an excellent judge," he said. "We intend to file with the New Jersey Supreme Court to have them review the matter and then we'll proceed from there." Ironically, Wronko said, Locane was in Steinert High School in Hamilton speaking to students about the dangers of drinking and driving as the appellate court issued its ruling Friday morning.
Hard-core sentencing fans should take some time to check out the full opinion of the New Jersey Superior Court Appellate Division in NJ v. Locane, which runs 43 pages and is available at this link. Though a bit dense with Jersey-specific cites, this Locane opinion remarkably covers in various ways so many intricate issues of modern sentencing policy and practice.
Most fundamentally, this case highlights the challenging balance between offense and offender factors in sentencing, as the appellate court is concluding the trial court wrongfully downgraded the severity of the offense by being unduly moved my the defendant's remorse and rehabilitation. But is also, obviously, raises issue about the discretion of sentencing courts and review of that discretion on appeal. In addition, Sixth Amendment and double jeopardy issues arise in the Locane opinion. So too does the role of concurrent and consecutive sentencing, as well as punishment theory as it relates to sentencing drunk drivers (with a little hint to concerns about race, gender and class). And the opinion's final paragraph highlights still other matters the opinion engages:
In the beginning of this opinion, we referred to the statements made by the victims during the State's presentation, pursuant to the Crime Victim's Bill of Rights, N.J.S.A. 52:4B36[n]. Their comments dovetailed the sentencing goals embodied in the Code, which in this case were not met. In Liepe, the defendant was sentenced to, in real time, life. In this case, defendant was sentenced to a NERA term of three years. The lack of uniformity is striking and in derogation of the Code.
Put slightly differently, anyone teaching a sentencing class might readily build a number of real interesting exam questions around this case and opinion.
March 25, 2018
"Prison Crime and the Economics of Incarceration"
The title of this post is the title of this notable new paper authored by Ben Gifford now available via SSRN. Here is its abstract:
As America’s prison and jail populations have skyrocketed, a wealth of empirical scholarship has emerged to measure the benefits and costs of incarceration. The benefits, from an empirical perspective, consist of the amount of crime prevented by locking people up, as well as the value of that prevented crime to society. The costs consist of direct state expenditures, lost inmate productivity, and a host of other collateral harms. Once these benefits and costs are quantified, empirical scholars are able to assess whether it “pays,” from an economic perspective, to incarcerate more or fewer criminals than we currently do.
Drawing on this academic literature, policymakers at all levels of government have begun using cost-benefit analysis to address a wide range of criminal justice issues. In addition to evaluating broader proposals to increase or decrease incarceration rates, policymakers are assessing the costs and benefits of myriad narrower reforms that implicate the economics of incarceration. In each of these areas, policymakers rely heavily on empirical scholars’ work, whether by adopting their general methods or incorporating their specific results.
While these economic analyses of incarceration offer important insights, they suffer from a near-universal flaw: they fail to account for crime that occurs within prisons and jails. Instead, when scholars and policymakers measure the benefits of incarceration, they look only to crime prevented “in society.” Similarly, when they measure the costs, they ignore the pains of victimization suffered by inmates and prison staff. This exclusion is significant, as prison crime is rampant, both in relative and absolute terms.
To address this oversight, this Article makes several contributions: First, it provides a comprehensive review of the literature on the benefits and costs of incarceration, and it explores a range of ways in which policymakers are applying this economic framework. Second, it makes a sustained normative argument for the inclusion of prison crime in our economic calculus. Third, it draws on the scarce available data to estimate the impact that the inclusion of prison crime has on our cost-benefit analyses. As might be expected, once prison crime is accounted for, the economics of incarceration become significantly less favorable.