April 7, 2018
"Capital Punishment Decisions in Pennsylvania: 2000-2010: Implications for Racial, Ethnic and Other Disparate Impacts"
The title of this post is the title of this notable empirical paper recently posted to SSRN and authored by John Kramer, Jeffery Todd Ulmer and Gary Zajac. Here is its abstract:
A study of disparity in the administration of the death penalty in Pennsylvania by Kramer, Ulmer, and Zajac (2017) was recently completed for the Pennsylvania Interbranch Commission on Gender, Racial, and Ethnic Fairness. This study collected basic statistical data on 4,274 cases charged with homicide in Pennsylvania from 2000 to 2010, and then collected highly detailed data from courts and prosecutors’ offices on a subset of 880 first degree murder convictions in 18 counties accounting for more than 87% of all 2000-2010 first degree murder convictions. Utilizing propensity score methods in analyses of these first degree murder convictions, the study examined whether defendants’ and victims’ race/ethnicity (separately and in combination), predicted: 1) prosecutors’ decisions to seek the death penalty, 2) prosecutors’ decisions to retract a motion to seek the death penalty once it is filed, and 3) court decisions to sentence defendants to death or life without parole.
Key findings were: 1) No pattern of disparity was found to the disadvantage of Black or Hispanic defendants in prosecutors’ decisions to seek and, if sought, to retract the death penalty. 2) Black and Hispanic defendants were not disadvantaged in death penalty sentence decisions relative to White defendants. 3) Cases with White victims, regardless of race of defendant, were 8% more likely to receive the death penalty, while Black victim cases were 6% less likely to receive the death penalty. 4) Prosecutors filed to seek the death penalty in 36% of first degree convictions; but later retracted that filing in 46% of those cases. Moreover, a predominant pattern emerged in which a death penalty filing strongly predicted a guilty plea in these murder cases, and pleading guilty strongly predicted the retraction of the death penalty filing. 5) There were very large differences between counties in the likelihood of prosecutors filing to seek the death penalty, the likelihood of their retracting that filing, and in courts imposing the death penalty. In fact, the biggest extra-legal influence on whether defendants faced or received the death penalty was where their cases were handled. 6) Public defenders were less likely than private or court appointed attorneys to have the death penalty filed in cases they represented. However, public defender cases were more likely to receive the death penalty, and defendants represented by private attorneys were especially unlikely to receive the death penalty. These defense attorney differences also, in turn, varied greatly between counties.
April 6, 2018
AG Sessions announces new "zero-tolerance policy" for immigration offenses ... which could mean ... (a lot or no) more fast-track sentencing?
This new Department of Justice press release reports on a notable new announcement from the Attorney General. Here is the substantive heart of the release:
Attorney General Jeff Sessions today notified all U.S. Attorney’s Offices along the Southwest Border of a new “zero-tolerance policy” for offenses under 8 U.S.C. § 1325(a), which prohibits both attempted illegal entry and illegal entry into the United States by an alien. The implementation of the Attorney General’s zero-tolerance policy comes as the Department of Homeland Security reported a 203 percent increase in illegal border crossings from March 2017 to March 2018, and a 37 percent increase from February 2018 to March 2018 — the largest month-to-month increase since 2011.
“The situation at our Southwest Border is unacceptable. Congress has failed to pass effective legislation that serves the national interest — that closes dangerous loopholes and fully funds a wall along our southern border. As a result, a crisis has erupted at our Southwest Border that necessitates an escalated effort to prosecute those who choose to illegally cross our border,” said Attorney General Jeff Sessions. “To those who wish to challenge the Trump Administration’s commitment to public safety, national security, and the rule of law, I warn you: illegally entering this country will not be rewarded, but will instead be met with the full prosecutorial powers of the Department of Justice. To the Department’s prosecutors, I urge you: promoting and enforcing the rule of law is vital to protecting a nation, its borders, and its citizens. You play a critical part in fulfilling these goals, and I thank you for your continued efforts in seeing to it that our laws — and as a result, our nation — are respected.”...
Today’s zero-tolerance policy further directs each U.S. Attorney’s Office along the Southwest Border (i.e., Southern District of California, District of Arizona, District of New Mexico, Western District of Texas, and the Southern District of Texas) to adopt a policy to prosecute all Department of Homeland Security referrals of section 1325(a) violations, to the extent practicable.
The one-page memo sent from AG Sessions to all federal prosecutors along the Southwest border is available at this link, and the title of this post flags the big follow-up question that I have.
As federal sentencing fans know, the large number of immigration cases historically prosecuted in border districts led to the creation of a special kind of sentencing adjustment (known as a "fast-track" departure) in order to speed case-processing through sentence reductions. If, as this AG Sessions memo suggests, prosecutors on the border are now going to be bringing even more immigration prosecutions, I would expect to see even more "fast-track" departures. But the memo above speaks of bringing the "full prosecutorial powers of the Department of Justice" to those "illegally entering this country." That language would arguably suggest that federal prosecutors ought not anymore be agreeing to lower sentences for offenses under 8 U.S.C. § 1325(a) now that we are to have a "zero-tolerance policy."
Making the case for making the best of federal sentencing changes in the form of prison reform
Lars Trautman has this notable new Hill commentary, headlined "Incentivized early release the right path to sentencing reform under Trump-Sessions," making the argument that advocates ought to pursue even limited prison reform if that is the only form of politically viable federal sentencing reform. Here are excerpts:
The heated “tough-on-crime” rhetoric of the president and many in his administration has greatly complicated criminal justice reform efforts and left Congress scrambling to figure out how to make sentencing reform palatable to the White House. The problem has become particularly acute after the attorney general summarily dismissed one of the Senate’s leading proposals and the White House sent Congress a set of criminal justice priorities that pointedly ignored front-end sentencing reforms.
So how can Congress possibly move the needle on something as controversial as federal sentencing reform under this administration?
By passing sentencing reform that doesn’t look like sentencing reform. Plans that reduce the potential penalties for certain offenses or provide other sentencing safety valves have struggled because they focus on the crime committed, essentially forcing proponents to argue that an individual deserves less punishment for a given offense. This is a fundamentally moral issue that has no easy answer. It’s particularly susceptible to emotional appeals that couple a shared sense of outrage at criminal behavior with a fear of emboldening criminals.
As long as the focus remains on the wrong perpetrated, opponents are able to falsely claim that it’s impossible to be in favor of both victims and criminals, and then portray themselves as defenders of the former.... As worthy and necessary as this kind of front-end reform may be, demanding its inclusion is much more likely to frustrate than achieve any criminal justice reform.
So, if traditional sentencing reform is dead in the water, what’s left? Reentry programs that offer prisoners the opportunity to shorten their sentences on the back-end would be a good place to begin. Rather than trimming sentences from the start, these programs allow prisoners to earn credits toward early release by participating in programs intended to help reintegrate them into society and reduce their propensity to reoffend. Although they face some of the same political resistance as front-end sentencing reductions, it is significantly easier to overcome.
These programs avoid many of the usual pitfalls that sentencing reform legislation encounters because they shift the narrative from one of retribution to redemption, from past wrong to future promise. Instead of getting bogged down on issues like whom to punish and for how long, politicians are able to talk about what comes next. Leaving the nominal sentence unchanged insulates these reforms from charges that they don’t adequately reflect the egregiousness of a given crime or that they will negatively impact deterrence. Public safety and prison budgets are both improved as prisoners are given the tools to leave prison and never return.
Reentry programs also represent a more targeted approach to early release that is eminently easier to defend. This further moves the debate to more favorable terrain by limiting discussion only to those prisoners who have taken the initiative and successfully completed programs to reduce their risk of reoffending. Instead of having to defend the early release of all offenders, including those who may be unrepentant or otherwise incorrigible, proponents need only support those who have actively taken steps to better reintegrate themselves into society....
With opportunities for movement on criminal justice reform likely few and far between under this administration, reformers need to pick their fights more wisely. Demanding upfront sentencing reductions may feel righteous, but in the face of our current political intransigence it will likely do little to help those serving unnecessarily long sentences. Such energies are better spent working to expand the use of incentivized early release and ensure that it actually results in the conclusion of a sentence in legislation such as Rep. Doug Collins' (R-Ga.) Prison Reform and Redemption Act.
While there is much more that can and should be done on sentencing reform, for now at least, Congress should focus on progress that might actually garner a presidential signature.
Former South Korean Prez gets 24 years in prison from three-judge sentencing panel
I do not usually cover many sentencing stories from other countries, but this news out of South Korea struck me as blogworthy: "Park Geun-hye, South Korea’s Ousted President, Gets 24 Years in Prison." Here are some of the particulars, via the New York Times:
Park Geun-hye, South Korea’s impeached and ousted president, was sentenced on Friday to 24 years in prison on a variety of criminal charges, in a case that exposed the entrenched, collusive ties between South Korea’s government and huge conglomerates like Samsung.
A three-judge panel at the Seoul Central District Court also ordered Ms. Park to pay $17 million in fines, in a ruling that marked a climactic moment in an influence-peddling scandal that shook the country’s political and business worlds.
Ms. Park’s conviction on bribery, coercion, abuse of power and other charges was the first lower-court ruling on a criminal case to be broadcast live in South Korea. She is the country’s first former leader to be arrested and convicted of crimes since two former military-backed presidents were found guilty of sedition and corruption in the 1990s.
Ms. Park did not appear in court for her case on Friday. She has refused to attend any court hearings since October, staying in her solitary prison cell, complaining of poor health and insisting that she is the victim of a political conspiracy.
Although Ms. Park is expected to appeal her prison term, the sentencing is likely to bring a sense of closure to the corruption scandal that engulfed her. Her supporters, mostly elderly South Koreans, have insisted on her innocence, and hundreds of them protested outside the courthouse Friday, demanding her release and calling her a victim of “political revenge.”...
At the center of the scandal that toppled Ms. Park’s government is the allegation that she and Choi Soon-sil, a longtime friend and confidant, collected or demanded large bribes from three big businesses, including Samsung, the country’s largest family-controlled conglomerate. Separately, the two women were accused of coercing 18 businesses into making donations worth $72 million to two foundations that Ms. Choi controlled.
The same court panel that handled Ms. Park’s case called her and Ms. Choi criminal co-conspirators when it sentenced Ms. Choi to 20 years in prison on Feb. 13 on bribery, extortion and other criminal charges.
Ms. Park has tearfully apologized to the public, cutting ties with Ms. Choi and insisting that she was not aware of many of her friend’s illegal activities. Her lawyers also appealed for leniency, arguing that the money collected from big businesses was not used for her personal gain. Some of the alleged bribes taken from Samsung were used to finance the equestrian pursuits of Ms. Choi’s daughter.
In Friday’s verdict, Ms. Park was convicted of collecting or demanding nearly $22 million in bribes from three of South Korea’s top business conglomerates, including Samsung, Lotte and SK. Separately, she was found guilty of coercing the three companies — and 15 other businesses — into making donations worth $72 million to two foundations controlled by Ms. Choi.
April 5, 2018
Supreme Court of Illinois rejects claim that state prohibition on sex offenders in parks is violative of substantive due process
The Supreme Court of Illinois today in Illinois v. Pepitone, 2018 IL 122034 (Ill. April 5, 2018) (available here), overturned a lower court ruling that found a sex offender restriction to violate substantive due process. Here is how the opinion starts and concludes:
Section 11-9.4-1(b) of the Criminal Code of 2012 provides, “It is unlawful for a sexual predator or a child sex offender to knowingly be present in any public park building or on real property comprising any public park.” 720 ILCS 5/11-9.4-1(b) (West 2016). The sole issue in this case is whether that statute is facially violative of substantive due process. The trial court rejected defendant Marc Pepitone’s due process claim, but the appellate court majority accepted it and reversed his conviction. 2017 IL App (3d) 140627. For the reasons that follow, we reverse the judgment of the appellate court and affirm the defendant’s conviction and sentence....
We conclude that there is a rational relation between protecting the public, particularly children, from sex offenders and prohibiting sex offenders who have been convicted of crimes against minors from being present in public parks across the state. Avila-Briones and Pollard correctly identified a constitutional nexus. In Avila-Briones, 2015 IL App (1st) 132221, ¶ 84, the appellate court stated: “[B]y keeping sex offenders who have committed offenses against children away from areas where children are present ***, the legislature could have rationally sought to avoid giving certain offenders the opportunity to reoffend.” The Avila-Briones court added that whether the statutory scheme covering sex offenders is “a finely tuned response to the threat of sex offender recidivism is not a question for rational-basis review; that is a question for the legislature.” Id. And in Pollard, 2016 IL App (5th) 130514, ¶ 41, the appellate court concluded, “There is also a direct relationship between the *** presence restrictions of sex offenders and the protection of children.” See Standley v. Town of Woodfin, 661 S.E.2d 728, 731 (N.C. 2008) (upholding a municipal ordinance barring registered sex offenders from entering town parks and stating that the town “has a legitimate government interest in desiring to decrease and eliminate sexual crimes in its parks, and prohibiting those most likely to commit criminal sexual acts — persons previously convicted of such conduct — from entering the town’s parks is a rational method of furthering that goal”). Because section 11-9.4-1(b) is rationally related to a legitimate government interest, the appellate court erred in holding that the statute is facially unconstitutional under substantive due process. People v. Jackson, 2017 IL App (3d) 150154, which followed the appellate court’s decision in this case, is overruled to the extent that it also found section 11-9.4-1(b) unconstitutional.
Reviewing some modern felony disenfranchisement realities
Stateline has this new piece providing a crisp accounting of modern felony disenfranchisement realities and concerns. I recommend the full piece, which is headlined "Felony Voting Laws Are Confusing; Activists Would Ditch Them Altogether." Here are excerpts:
Disenfranchised felons are about 2.5 percent of the general voting-age population, but that number triples among African-Americans, according to estimates from the Sentencing Project. The disparity is starkest in the Southeast, where more than 20 percent of black voters are disenfranchised in some states.
In Louisiana, where an estimated 108,000 people are disenfranchised because of past criminal convictions, people aren’t allowed to vote until they have finished their parole. For many, that means decades.
At 72, Checo Yancy has been out of prison for over 14 years. But he’ll be on parole until 2056 and unlikely to cast a ballot before he dies. He is a plaintiff in a Louisiana case that seeks to restore voting rights to people as soon as they leave prison. The case may be decided as soon as this week....
Activists in Florida collected more than 840,000 signatures to put a measure on the November ballot that would allow people with a felony conviction to vote once they complete probation or parole. The state has imposed a lifetime voting ban on 1.7 million Florida residents with felony convictions. Only a pardon from the governor can restore their voting rights. And in a separate suit challenging the state’s system, a federal judge called it “crushingly restrictive” and later ordered the clemency board to adopt strict criteria and timelines for reviewing applications.
Many who seek to change the laws say the restrictions are rooted in racism, noting that many states enacted them shortly after blacks gained the right to vote. Robert McDuff, an attorney with the Mississippi Center for Justice, is also challenging the list of crimes in the state constitution that disenfranchises an estimated 218,000 people, “chosen because of the framers’ belief that they were disproportionately committed by African-Americans, and it was part of the larger effort by the framers of the 1890 constitution to eliminate the African-American vote.”...
Those who want to ease the restrictions argue that voting helps former inmates feel included and engaged in the community, reducing the likelihood of recidivism. That’s not the way many governors see it. Nebraska Gov. Pete Ricketts, a Republican, vetoed a bill last year that would have allowed felons to vote once they left prison. “Requiring convicted felons to wait before allowing them to vote provides an incentive to maintain a clean record and avoid subsequent convictions,” Ricketts said in his veto letter. Although the bill was reintroduced this year, a spokesman for the governor said his position has not changed.
In recent years, some conservative states have lifted other restrictions on felons, like those that bar them from receiving professional licenses or food stamps, hoping to reduce recidivism and save money on criminal justice costs such as incarceration, probation and parole.
Louisiana state Rep. Walt Leger, a Democrat who has sponsored criminal justice legislation, said the prospect of saving money can get both parties on board. Restoring voting rights, though, is still seen as politically risky. “That financial conversation is not necessarily a part of the right to vote conversation,” he said. “So for some it continues to be a soft-on-crime versus tough-on-crime issue.”
A call for papers on "Lockett v. Ohio at 40"
I received via email and got authority to post this notice of an interesting call for papers on a particular (underappreciated?) Supreme Court capital case:
The Center for Constitutional Law at the University of Akron School of Law invites scholars, practitioners, and advocates to submit papers commemorating the United States Supreme Court decision in Lockett v. Ohio, 438 U.S. 586 (1978). Argued by the brilliant Prof. Anthony Amsterdam, the decision laid the framework for narrowing application of the death penalty. Lockett not only overturned Ohio’s 1974 era death penalty law, it heralded the significance and breadth of mitigating factors that must be considered by jurors and judges making the life or death decision in the penalty phase of capital cases, and tapped in to issues of disproportionate sentencing (those decided and yet to be).
Papers reflecting on the decision and its progeny are invited for a written symposium in the Akron Law Review’s online journal ConLawNOW, to be submitted by August 20, 2018. All submissions are welcome. Papers may be in the form of essays of 10-15 pages, or more traditional law review format. To participate, please send a brief abstract of the proposed paper to Prof. Emerita Marge Koosed at mkoosed @ uakron.edu and Prof. Tracy Thomas, Seiberling Chair of Constitutional Law, at thomast @ uakron.edu.
The University of Akron School of Law will host a program commemorating the Lockett decision, with Sandra Lockett Young in attendance, in October 2018. It is hoped that writers will be available to participate in this program by video conferencing.
"Cast into Doubt: Free Will and the Justification for Punishment"
The title of this post is the title of this interesting-looking new paper available via SSRN authored by Stephen Koppel, Mark Robert Fondacaro and Chongmin Na. Here is the abstract:
Criminal punishment is justified on either retributive or consequential grounds. The retributive justification is premised on a commonsense view of free will: offenders can freely choose to commit crimes and so deserve blame for their actions. The consequentialist justification, in contrast, is not necessarily premised on the free will concept, but rather justifies punishment when it is the most cost-effective way of preventing crime. Science elucidating the mechanistic causes of human behavior has thrown the notion of free will into doubt, leading some to predict a shift in public support away from retribution towards consequentialism. Past research shows that free will doubt weakens support for retribution, but less is known about its effects on support for consequentialism, or about whether these effects differ across the crime severity spectrum.
In this study, we explore the effects of free will doubt on support for retribution and consequentialism in response to three different categories of crime — drug crime, property crime, and violent crime — which have been shown to evoke varying levels of emotion. We find clear inconsistencies across the crime spectrum. For high affect crime, free will doubt weakens support for retribution via blame, and increases support for consequentialism. For low affect crime, free will doubt weakens support for retribution to an even greater extent, yet also decreases support for consequentialism via blame. These findings suggest that, as science reveals the mechanistic causes of criminal behavior, support for criminal punishment will decrease, especially with respect to less serious crimes.
April 4, 2018
The intricate realities of the drug war on full display in recent Seventh Circuit ruling on ineffective assistance of counsel in plea negotiations
A helpful reader alerted me to an interesting panel ruling by the Seventh Circuit handed down yesterday in Brock-Miller v. US, No. 16-3050 (7th Cir. April 3, 2018) (available here). The reader rightly noted that this opinion provides a thorough discussion of ineffective assistance of counsel in plea negotiations before ordering the district court to hold a hearing to explore claims of deficient performance by the defendant's lawyer. I also found remarkable the case's accounting of how our federal drug laws can functionally operate to turn a seemingly minor crime into an offense carrying a 20-year mandatory minimum.
Specifically, as the panel opinion explains, LeeAnn Brock-Miller pleaded guilty, "pursuant to a plea agreement, to one count of conspiracy to possess with intent to distribute heroin [resulting in] the agreed-upon sentence of ten years’ imprisonment." What did she do to get this decade-long sentence? According to the opinion, she was driving with three other men (one of whom it seems was her husband) on a highway headed to purchase 54 grams of heroin in Chicago; and according to sentencing testimony: "this car trip was an isolated incident, where she agreed to give the others a ride in exchange for one gram of heroin for herself. Brock-Miller had an extensive criminal history that corroborated her claim that she did not sell drugs but was an addict who simply bought drugs for personal consumption."
Problematically for Brock-Miller, (1) that lone car trip allowed the Government to claim she was part of a drug conspiracy to traffic more than a kilo of heroin, triggering a possible 10-year mandatory minimum, and (2) she had a prior Indiana conviction for “Unlawful Possession of Syringes or Needles” which the Government claimed was a predicate drug felony under 851 that doubled her potential mandatory minimum term to 20 years in federal prison(!). With the feds threatening this big hammer, the defendant here understandably was amenable to her defense counsel's advocacy to accept a plea deal that called for "only" a 10-year sentence.
But as the Seventh Circuit goes on to explain, the defendant's prior Indiana conviction was not actually a qualifying predicate to double her applicable mandatory minimum and she had a reasonable trial argument that not foreseeable was the "full kilogram of heroin charged in the indictment [for] someone who joined the conspiracy at the very end, in a deal involving only 54 grams." In other words, the defendant had a winning legal argument that her mandatory minimum should not have been doubled, and a viable argument that she should not be subject to any mandatory minimum term at all. Luckily for the defendant, a Seventh Circuit panel helped figure this out and the apparent ineffectiveness of her counsel may allow her to get resentenced in a more fitting way.
But I must conclude by stressing the dark cloud that overwhelms any Brock-Miller silver lining: the very possibility that "an addict who simply bought drugs for personal consumption" could be threatened with a 20-year mandatory minimum federal prison term reveals how dysfunctional and morally bankrupt our federal sentencing laws can be. And I am quite certain that LeeAnn Brock-Miller is not the first person nor the last person to be chewed up by these laws; indeed, sadly, there are many thousands that have come before her, and likely many thousands still to come.
Are prisons and jail now, and should they be, our society's modern addiction treatment centers?
The question in the title of this post is prompted by this notable new article in Stateline headlined "Addiction Treatment, for Jails and Prisons, Gains Momentum." Here are excerpts:
From the moment they are arrested, people with an addiction to heroin and prescription painkillers and those who are taking medications to beat their addictions face the prospect of painful opioid withdrawal.
At least a quarter of the people in U.S. prisons and jails are addicted to opioids. Those who are released rejoin their communities with dangerously reduced tolerance and nothing to blunt their drug cravings, making them highly susceptible to a deadly overdose.
But new scientific evidence and a recently announced federal investigation may soften prison officials’ long-held opposition to medication-assisted treatment.
Rhode Island is the only state that provides all three FDA-approved addiction medications, methadone, buprenorphine and a long-acting, injectable form of naltrexone known as Vivitrol, to all inmates. A recent study in the medical journal JAMA Psychiatry found that opioid overdose deaths dropped by nearly two-thirds among recently incarcerated people in the first year of a new program that screens and provides addiction medicines to all state inmates. According to the study by Brown University researchers, the program not only reduces overdose deaths after the inmates are released, but also increases the likelihood they will stay in treatment and avoid getting arrested again.
Meanwhile in Massachusetts, which doesn’t provide methadone or buprenorphine to inmates, the U.S. Department of Justice is investigating whether corrections officials are violating the Americans with Disabilities Act by forcing inmates who were taking those addiction medicines when they entered prison to stop taking them while incarcerated.
Massachusetts lawmakers are considering a corrections bill that would require the state’s prisons and jails to offer all three FDA-approved medications. A similar proposal is advancing in Connecticut, which has provided methadone to some inmates in some jails for six years. The bill there would expand the program to all medications for all inmates.
And at the federal level, President Donald Trump promised last month to screen every federal inmate — roughly 180,000 people — for opioid addiction and provide Vivitrol in residential treatment centers prior to release. Trump also called for more federal support for state, local and tribal drug courts to help provide “evidence-based treatment as an alternative to or in conjunction with incarceration, or as a condition of supervised release.”
Fewer than 1 percent of the more than 5,000 U.S. prisons and jails, housing more than 2 million inmates, allow access to the FDA-approved medication, even though medical societies, addiction experts and correctional health organizations support their use. Finding the money to fund correctional drug treatment programs is a challenge in many states. But research shows that the cost of providing addiction medications in correctional facilities is outweighed over time by savings in both future health care and incarceration costs....
Standing in the way are sheriffs and other prison officials, who argue that allowing treatment inside prisons with methadone or buprenorphine — both narcotics that can be abused — will lead to the drugs being diverted within the prison and possibly to illicit street markets.
In Barnstable County, Massachusetts, for example, Sheriff James Cummings said he would not allow buprenorphine to be dispensed in his jail because it is considered contraband. “We ruled out buprenorphine because it doesn’t work for the people we deal with,” Cummings said. “Inmates try to smuggle it into the facility every day. It’s a narcotic. They use it until they can get their next heroin fix so they don’t get sick and they sell it to get money to buy more heroin. It’s not a good fit.”
Instead, Barnstable in 2012 added Vivitrol to its re-entry program for opioid-addicted inmates who are scheduled to leave within the next two weeks. Cummings said the program has reduced overdose deaths and repeat offenses. In general, Vivitrol is an easier sell in most prisons and jails, said Andrew Klein, who runs a Justice Department program aimed at getting more drug treatment into correctional facilities. But it’s not the best medication for everyone, he said.
In fact, nearly all corrections officials reject the use of either methadone or buprenorphine behind prison walls. That’s despite a history of research showing both medicines are highly effective at eliminating cravings, preventing overdoses and keeping people in recovery from opioid addiction....
At least 1 in 5 incarcerated people are imprisoned because of drug charges, but in many states, even more inmates are addicted to heroin and other opioids. In Connecticut, for example, at least 30 percent of the state’s 14,000 inmates are addicted to opioids, according to Kathleen Maurer, the medical director for he state’s corrections department. Nationwide, a quarter of heroin addicts pass through the corrections system each year, according to a study in the Journal for Opioid Management....
Five states — Hawaii, New Jersey, New York, Vermont and Washington — offer both methadone and buprenorphine to some inmates at one or more prisons or jails. Only Rhode Island offers all three medications to all inmates in all of its prisons and jails.
"The Expansion of Child Pornography Law"
The title of this post is the title of this new essay authored by Carissa Byrne Hessick now available via SSRN. Here is the abstract:
This symposium essay identifies two dramatic expansions of child pornography law: Prosecutions for possessing images of children who are clothed and not engaged in any sexual activity, and prosecutions for possessing smaller portions of artistic and non-pornographic images. These prosecutions have expanded the definition of the term child pornography well beyond its initial meaning. What is more, they signal that child pornography laws are being used to punish people not necessarily because of the nature of the picture they possess, but rather because of conclusions that those individuals are sexually attracted to children. If law enforcement concludes that a person finds an image of a child to be sexually arousing, then these laws can subject that individual to punishment, even though the image would have been perfectly innocuous had it been possessed by someone else.
April 3, 2018
After plea to lying to special counsel, attorney gets 30 days (within-guideline) federal sentence
As reported here via Politico, "Special counsel Robert Mueller obtained the first sentence in his high-profile investigation Tuesday, as a Dutch attorney who admitted to lying to investigators was ordered into federal custody for 30 days." Here is more with an emphasis on sentencing details:
Former Skadden Arps lawyer Alex van der Zwaan, 33, pleaded guilty in February to lying to FBI agents about his contacts with former Trump campaign official Rick Gates and Konstantin Kilimnik, a suspected Russian intelligence operative who worked closely with Gates and former Trump campaign chairman Paul Manafort.
Attorneys for van der Zwaan pleaded with U.S. District Court Judge Amy Berman Jackson to forgo any prison time, give him a fine and let him return to his London home by August, when his wife is due to give birth. However, the judge said some time in jail was appropriate given van der Zwaan's offense and the fact that he is a lawyer.
“We're not talking about a traffic ticket,” she said. “This was lying to a federal officer in the course of a criminal investigation...This was more than a mistake. This was more than a lapse or a misguided moment."
In addition to the 30-day sentence, Jackson also imposed a $20,000 fine and two months of probation, but she said she would permit van der Zwaan to reclaim his passport and leave the country as soon as his month in custody is completed. It's not immediately clear where or in what type of facility he will serve the 30 days....
Van der Zwaan's defense asked that he be permitted to serve at a Bureau of Prisons center in Allenwood, Pennsylvania. The judge said Tuesday that she would recommend that, but federal policies usually dictate that a sentence of less than six months be served at a halfway house or at the D.C. jail.
One of van der Zwaan's defense attorneys, William Schwartz, argued that leniency was appropriate given the impact of the episode on the Dutch lawyer's family and on his legal career. He is likely to lose his license as a solicitor in the United Kingdom, Schwartz said.
But Jackson was largely unmoved by those arguments, noting that van der Zwaan came from an upbringing of privilege and lacked any hardship that could have mitigated his actions. Van der Zwaan is married to the daughter of a Ukrainian-Russian energy mogul, German Khan, whom Forbes ranks 138th on its list of billionaires, with a net worth of $9.3 billion.
"This glass was dropped on a very thick carpet, which has cushioned him," the judge said of the defendant. She credited him for supporting himself and his wife in recent years, although she noted that van der Zwaan's father-in-law has provided funds to the couple since the attorney was fired from his job....
The fact that prosecutors are not requiring future cooperation from van der Zwaan suggests that they don't see him as a crucial player in the Trump-Russia saga. Prosecutor Andrew Weissmann said the defendant's reason for lying remains murky. "To be candid, we don't know what was motivating the defendant," Weissmann said. "We count on people to tell us the truth. We count on people to turn over documents that are responsive."
Defense attorneys said he lied to Mueller's team because he feared being fired if Skadden found out he had recorded work-related conversations without permission, including at least one with former Obama White House Counsel Greg Craig, a Skadden partner who oversaw the Tymoshenko report. Van der Zwaan was ultimately fired by the firm late last year, after his inaccurate statements to the Mueller team.
Weissmann said that concern about the consequences at Skadden could have been part of the explanation, but there was "reason to doubt that is simply the sole motive." Mueller's team offered no specific recommendation to Jackson on an appropriate sentence in the case. Weissmann said that was the special counsel office's policy, which he also followed as a federal prosecutor in Brooklyn.
Van der Zwaan spoke to the court only briefly during the sentencing hearing at the federal courthouse near Capitol Hill. "Your honor, what I did was wrong and I apologize to the court for my conduct," he said. He also apologized to his family for his actions.
Later in the hearing, Jackson said she did not detect great remorse. "The expressions of remorse, even those made on his behalf, were somewhat muted to say the least," the judge declared shortly before she imposed the sentence.
Jackson also rebuffed Schwartz's argument that van der Zwaan's freedom was curtailed in recent months as he spent his days at a "residential hotel" awaiting legal proceedings. "I'm not really moved by the complaint that he is in his hotel room with nothing to do," the judge said, saying he was not in custody and could have been doing community service to keep busy.
"This glass was dropped on a very thick carpet" is a quote I am going to have to remember. And though not mentioned in this article, I am pretty sure the calculated guideline range in this matter was 0 to 6 months, so perhaps we ought also remember that the first sentence imposed in this matter emerging from the special counsel was a within-guideline (and not-bottom-of-the-range) sentence.
AEDPA accelerant: examining prospects for speedier capital appeals for "opt-in" states
Remarkably, it has been almost a quarter century since Congress reformed federal habeas procedures through the Antiterrorism and Effective Death Penalty Act. But in all that time, a dormant part of AEDPA has been its provisions seeking to enable states a quicker route through federal capital habeas review if they provided adequate counsel for state collateral review. But as highlighted by this lengthy new article, headlined "‘Express lane to death’: Texas seeks approval to speed up death penalty appeals, execute more quickly," this part of AEDPA may have some new life. Here are the basics:
Texas is seeking to speed up executions with a renewed request to "opt in" to a federal law that would shorten the legal process and limit appeals options for death-sentenced prisoners.
Defense attorneys worry it would lead to the execution of innocent people and — if it's applied retroactively, as Texas is requesting — it could end ongoing appeals for a number of death row prisoners and make them eligible for execution dates. "Opt-in would speed up the death penalty treadmill exponentially," said Kathryn Kase, a longtime defense attorney and former executive director of Texas Defender Services.
A spokeswoman for the state's attorney general framed the request to the Justice Department as a necessary way to avoid "stressful delays" and cut down on the "excessive costs" of lengthy federal court proceedings. "Opting-in would serve several purposes for Texans, including sparing crime victims years of unnecessary and stressful delays, ensuring that our state court judgments are respected by federal judges as cases progress, and reducing the excessive costs of lengthy federal court proceedings," said the spokeswoman, Kayleigh Lovvorn....
The request — which comes after years of declining executions — has sparked a federal lawsuit and hundreds of pages of comments from a broad coalition of concerned parties including the ACLU, the American Bar Association, Mexico's government, a former federal judge and dozens of defense attorneys.
There's doubt among the defense bar whether Texas actually meets the qualification criteria. Approval is up to Attorney General Jeff Sessions, the nation's top law enforcement officer who recently advocated for capital punishment for drug dealers in some cases. If Sessions gives the green light to the Lone Star State's application, it will be the first opt-in approval in the more than two decades since the law's inception....
The state's hopes for fast-tracking a path to execution date back to at least 1996, when Congress passed the Antiterrorism and Effective Death Penalty Act. Written in the tough-on-crime 1990s and in the aftermath of the 1995 Oklahoma City bombing that killed 168 people, the law set time limits to expedite federal appeals in death penalty cases and gave greater deference to state courts....
But in addition to what is already in place, the law opens the door to creating even tighter deadlines with a special opt-in provision under a section called Chapter 154. In order to qualify for Chapter 154 certification, states have to prove they offered good enough lawyers earlier in the process, during the so-called "state habeas" appeal. If the condemned were all able to get competent, sufficiently paid attorneys with the funds to afford things like investigators and specialists during the state habeas appeal, then the law would permit speeding up the later federal habeas appeal....
The letters submitted to the government early this year were highly critical of Texas' current defense system, calling it "inadequate" and "infected" by "well-publicized failures," pointing out that the state doesn't even guarantee counsel for all types of post-conviction proceedings.
So far no state has qualified. But in November, Sessions fired off letters to Texas and Arizona — two states that previously put in certification requests — and asked if they still wanted to apply. They did.
The states' affirmative responses prompted a required comment period, during which Texas Defender Services and other capital defense organizations produced a 247-page comment — bolstered by more than 100 appendixes — criticizing Texas' application, calling it "little more than a whitewash of the state's persistent historic failures" that includes "no evidence at all." The application itself doesn't explain why the state wants to opt in.
Kent Scheidegger, death penalty supporter and legal director of the Criminal Justice Legal Foundation touted opt-in as a way to speed up the process. "We talk about due process of law — I call this overdue process of law," he said. "The victims' families just get frustrated beyond belief with all this reexamination when in most cases the guy is guilty beyond any doubt. The fact that a federal court overturns the judgment doesn't mean that that's a just result."
Houston-based capital defense attorney Patrick McCann stressed that federal courts are where many condemned men —including those wrongfully convicted like Anthony Graves, and those deemed too intellectually disabled to execute, like Bobby Moore — have gotten relief. "This is a political quest," he said. "It's an appeal to Gov. Abbott's base to make it very proudly explained that we have an express lane to death."...
If Sessions approves it, opting in would include limitations on how long federal courts have to resolve cases, restrictions on judges' abilities to grant stays of execution, and limits on the claims that prisoners can raise in federal habeas proceedings.
But what's sparking the most concern among defense lawyers is a change that would halve the time attorneys have to file the first part of their federal appeal. If Texas opts in, attorneys would have six months instead of a year to interview witnesses, hire investigators and familiarize themselves with sometimes a decade or more of case files to sift out any possible past lawyering mistakes, suspicion of withheld evidence or proof of actual innocence stuffed away in boxes and boxes of materials.
"Doing all that in one year is already extraordinarily difficult, and any further limitations would only exacerbate the existing problem," said Emily Olson-Gault, director of the Death Penalty Representation Project at the American Bar Association. "We know that errors are made in capital cases," she added. "The more that the allotted time to prepare is limited, the greater the risk that serious constitutional errors will stand uncorrected."
And if claims aren't raised in the first filing, they can't always be raised later. "They're valid concerns but you gotta consider the other side of the coin," said Scheidegger "The state and the victims have an interest in seeing these sentences carried out and at present it is taking far too long."
Death penalty lawyer Kenneth McGuire — who is among those suing in federal court in Washington, D.C., to challenge the certification process — called the shorter time frame "completely impractical" and said it would "only guarantee a miscarriage of justice." Attorney James Rytting concurred, adding that sometimes it takes "several months" for the courts to appoint federal habeas lawyers.
A window into carceral concerns in incarceration nation: "build another prison" to deal with "loss of coal work"
A helpful reader sent me this AP story headlined "Federal prison project in Kentucky wins final approval," which highlights how the building of cages gets celebrated as a form of economic development (using federal tax dollars). Here are excerpts from the piece:
Federal officials have approved a long-discussed plan to build another prison in eastern Kentucky, sealing a deal to bring hundreds of jobs to an area hard hit by the loss of coal work.
U.S. Rep. Hal Rogers said he was notified Friday by Attorney General Jeff Sessions that the Letcher County project had cleared a final hurdle with federal prisons officials. The Republican congressman said the project will be a "long-term economic shot in the arm" for the region.
"With funding in place and the completion of environmental studies, today's announcement is a tremendous milestone for Letcher County and the surrounding area," Rogers said Friday.... The prison is expected to have 300 to 400 employees, Rogers said. A 700-acre site on reclaimed mine land in Roxana was selected for the facility by federal officials....
The announcement comes as the area's economy has been reeling from a big downturn in the coal sector. "We certainly need the job growth around here since the coal industry has dried up," Letcher County Jailer Don McCall said Saturday in praising the announcement. "I think it's going to be a real economic boost for our little area."...
It could take four to five years to build the prison, but an estimated 1,000 or more construction jobs will provide a quick boost for the area's economy, Letcher County Judge-Executive Jim Ward told the Lexington Herald-Leader. The prison project had drawn resistance from some local residents uncomfortable about connecting the county's economy to a prison.
Rogers was the driving force behind landing federal money for the project. He secured an initial $5 million in the federal budget in 2006 to search for potential sites. The veteran congressman steered nearly $500 million needed to build the prison while he was the powerful chairman of the House Appropriations Committee.
The Letcher County project marks the fourth prison that Rogers had helped bring to his district during his time in Congress. The others are in McCreary, Martin and Clay counties.
UPDATE: A helpful reader made sure I saw this terrific lengthy NBC News piece from last week covering this same story under the headline "DOES AMERICA NEED ANOTHER PRISON?" Here is an excerpt from a piece that merits a full read:
Around the country, impoverished rural communities have pursued prisons in the hope that they will deliver them from economic hardship. This began three decades ago, when America’s rush to imprison coincided with the loss of farms, factories and other traditional sources of work that bolstered rural life. The need hasn’t diminished, as rural America still seeks a path out of the Great Recession. But the exchange of land is no longer as promising what it once was.
As incarceration rates have fallen, and the country re-evaluates whether locking people up is sound criminal justice policy, many states are closing prisons, forcing rural towns that invested their futures in bars and barbed wire to find new uses for the buildings, as well as new economic engines.
Letcher County, with 22,700 people in the southern Appalachian Mountains, appears stuck with no other solution.
“In much of rural America we get our identity from what we used to do: We used to be miners, farmers, loggers, we used to work at the plant. And as that work goes away, we want to feel like we’re part of the American story and we’re making a contribution,” said Dee Davis, president of the Center for Rural Strategies, a nonprofit based in Whitesburg that advocates for rural communities. “Politicians have just a few arrows in their quiver, and one of them is prisons, which, whether they work or not, they seem like they’re a big deal. It’s the one thing they give to rural.”
April 2, 2018
"Racial Equity in Algorithmic Criminal Justice"
The title of this post is the title of this notable new paper now available via SSRN authored by Aziz Huq. Here is its abstract:
Algorithmic tools for predicting violence and criminality are increasingly used in policing, bail, and sentencing contexts. Although some attention has been given to their procedural due process implications, how these instruments interact with the enduring and complex racial legacies of the criminal justice system is presently not well understood.
This Article analyzes the questions of racial equity raised by these new predictive instruments using two lenses: constitutional doctrine and emerging technical standards of “algorithmic fairness.” I demonstrate that constitutional doctrine is poorly adapted to addressing the range of racial issues that potentially arise with algorithmic criminal justice. Instead, I demonstrate that the difficult questions of racial equity in this domain are best framed and evaluated though certain, but not all, emerging technical standards of algorithmic fairness.
SCOTUS grants cert on yet another ACCA case(!) while Justice Sotomayor is in fine dissenting form on other criminal justice matters
Before taking another two week break from oral arguments, the US Supreme Court this morning issued this order list which included a cert grant on yet another case interpreting the application of the Armed Career Criminal Act. As it does so well, SCOTUSblog already has this case page for the new ACCA case providing this basic accounting:
Stokeling v. United States
Docket No. 17-5554 (opinion below from 11th Circuit)
Issue: Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.
Today's order list is also noteworthy for two lengthy dissents authored by Justice Sotomayor that together take up more than half of the entire order list. The long one, which has Justice Ginsburg also on board, complains about the Court summarily reversing a Ninth Circuit ruling concerning a police officer's liability for shooting a suspect. The shorter dissent has her complaining solo about the Court's denial of cert in a Florida capital case. The closing substantive paragraph and footnote of this dissent struck me as blogworthy:
Therefore, the Florida Supreme Court has (again)[FN4] failed to address an important and substantial Eighth Amendment challenge to capital defendants’ sentences post-Hurst. Nothing in its pre-Hurst precedent, nor in its opinions in Truehill and Oliver, addresses or resolves these substantial Caldwell-based challenges. This Court can and should intervene in the face of this troubling situation.
[FN4] “Toutes choses sont dites déjà; mais comme personne n’écoute, il faut toujours recommencer.” Gide, Le Traité du Narcisse 8 (1892), in Le Traité du Narcisse 104 (R. Robidoux ed. 1978) (“Everything has been said already; but as no one listens, we must always begin again”).
April 1, 2018
Is criminal justice reform really likely to be "a winning issue in 2018"?
The question in the title of this post is prompted by this recent Salon article headlined "Beyond 'law and order': Criminal justice reform looks like a winning issue in 2018: Voters don’t want Trump-style demagoguery about crime. They’re ready for real work to reduce mass incarceration." Here are excerpts:
During his speech at the 2016 Republican National Convention, Donald Trump painted a terrifying picture of the United States as a crime-ridden wasteland where people cower in fear in their homes, declaring, "I am the law-and-order candidate."... Despite this, criminal justice reform activists and experts believe that a more positive message on crime and law enforcement is a winner: We can lower incarceration rates in the U.S. without sacrificing public safety.
Inimai Chettiar, director of the Brennan Center's Justice Program, told Salon that she sees an "awakening of America to the problem of mass incarceration." She believes there's an "increasing consensus that we do need to reduce our prison population" and that the tough-on-crime posturing from Trump or Attorney General Jeff Sessions is "out of step with this current consensus."...
A 2017 poll from the Charles Koch Institute "reveals that 81 percent of Trump voters consider criminal justice reform important," the report explains. "Another, from Republican pollster Robert Blizzard, finds that 87 percent of Americans agree that nonviolent offenders should be sanctioned with alternatives to incarceration. And according to a 2017 ACLU poll, 71 percent of Americans support reducing the prison population — including 50 percent of Trump voters."
The [new Brennan Center] report outlines a number of critical policies lawmakers can enact to reduce prison rates, such as passing sentencing reform laws, decriminalizing marijuana and diverting people to mental health services instead of jail. Importantly, the report focuses on federal, state and local policy ideas. Most people are incarcerated in state and local facilities, and the only way to truly reduce the prison population is for reform efforts to be focused on every level of government.
This is no doubt why there's been increased attention to the role local prosecutors play in creating the mass incarceration problem — and the role they can play in fixing it. There's been significant media coverage, for instance, of Larry Krasner, Philadelphia's new district attorney, who was elected after promising significant reforms to the prosecutor's office aimed at reducing incarceration rates. Now Krasner is making good on those promises, fighting the railroading of defendants and encouraging his attorneys not to seek maximum penalties for nonviolent or low-level offenses.
This is in direct contrast with how most prosecutors do things, Chettiar said, noting that "prosecutors are officially and unofficially rewarded . . . based on conviction rates, length of sentences and how zealously they enforce and punish defendants," a situation that developed in direct reaction to the "tough on crime" frenzy of the '80s and '90s.
While the Brennan Center report has some ideas for prosecutors and mentions the election of Krasner — as well as progressive prosecutors in Chicago, Dallas, Denver, Tampa and St. Louis — Chettiar cautioned that it's not enough to elect prosecutors who run on reform platforms. “I worry that the election of these progressive prosecutors could potentially distract from the obligation of state legislators and congress and governors to act to change laws," she said. “It is equally important, if not more so, that our criminal laws and sentencing laws are changed."
April 1, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (10)
"The Intersection between Young Adult Sentencing and Mass Incarceration"
The title of this post is the title of this notable new article authored by Josh Gupta-Kagan available on SSRN. Here is its abstract:
This Article connects two growing categories of academic literature and policy reform: arguments for treating young adults in the criminal justice system more leniently than older adults because of evidence showing brain development and maturation continue until the mid-twenties; and arguments calling for reducing mass incarceration and identifying various mechanisms to do so. These categories overlap, but research has not previously built in depth connections between the two.
Connecting the two bodies of literature helps identify and strengthen arguments for reform. First, changing charging, detention, and sentencing practices for young adults is one important tool to reduce mass incarceration. Young adults commit a disproportionate number of crimes. Because so many offenders are young adults, treating young adults less severely could have significant impacts on the number of individuals incarcerated.
Second, focusing on young adults responds to retributive arguments in defense of existing sentencing policies, especially for violent offenses. The mass incarceration literature shows that sentences for violent offenses explain much, if not most, of recent decades’ prison growth. Young adult violent offenders deserve punishment, but their youth mitigates their culpability and thus offers a response to retributive calls for long sentences.
Third, considering mass incarceration can add both urgency and new ideas to the growing debate about reforming sentencing of young adults. Such reforms have thus far been tentative, following well-grounded desires to test different alternative interventions for young adults. The mass incarceration literature adds an important consideration – the status quo demands prompt and far-reaching reform – and new ideas, such as prosecutorial charging guidelines that encompass defendants’ age.