April 13, 2018
"President Trump has promised a top Senate Republican that he will support congressional efforts to protect states that have legalized marijuana"
The title of this post is the lead sentence of this new Washington Post article headlined "Trump, Gardner strike deal on legalized marijuana, ending standoff over Justice nominees." Here is more from the article:
In January, the Colorado Republican said he would block all DOJ nominations after Attorney General Jeff Sessions issued a memo that heightened the prospect of a federal marijuana crackdown in states that had legalized the substance. Gardner’s home state made recreational marijuana legal in 2014.
In a phone call late Wednesday, Trump told Gardner that despite the DOJ memo, the marijuana industry in Colorado will not be targeted, the senator said in a statement Friday. Satisfied, the first-term senator is now backing down from his nominee blockade.
“Since the campaign, President Trump has consistently supported states’ rights to decide for themselves how best to approach marijuana,” Gardner said Friday. “Late Wednesday, I received a commitment from the President that the Department of Justice’s rescission of the Cole memo will not impact Colorado’s legal marijuana industry.”
He added: “Furthermore, President Trump has assured me that he will support a federalism-based legislative solution to fix this states’ rights issue once and for all. Because of these commitments, I have informed the Administration that I will be lifting my remaining holds on Department of Justice nominees.”...
Trump “does respect Colorado’s right to decide for themselves how to best approach this issue,” White House legislative affairs director Marc Short said in an interview Friday....
A bill has not been finalized, but Gardner has been talking quietly with other senators about a legislative fix that would, in effect, make clear the federal government cannot interfere with states that have voted to legalize marijuana. “My colleagues and I are continuing to work diligently on a bipartisan legislative solution that can pass Congress and head to the President’s desk to deliver on his campaign position,” Gardner said.
In addition to Gardner’s holds, DOJ has faced notable bipartisan pushback from Capitol Hill when it comes to marijuana. Sens. Orrin G. Hatch (R-Utah) and Kamala D. Harris (D-Calif.) wrote to Sessions this week, urging him to back off efforts to curtail medical marijuana research at the Drug Enforcement Administration. The Washington Post reported in August that Sessions’s DOJ was effectively hamstringing the agency’s research efforts by making it harder to grow marijuana.
Separately, former House Speaker John A. Boehner (R-Ohio) announced this week he is joining the board of directors for a cannabis company and engaged in efforts to allow veterans to access marijuana for medicinal use. He has opposed decriminalizing the substance as an elected official.
A few recent related posts from Marijuana Law, Policy and Reform:
- Senators Orrin Hatch and Kamala Harris write to AG Jeff Sessions to push for more medical marijuana research
- Former US House Speaker and former Massachusetts Gov join advisory advisory board of major marijuana corporation
- Spotlighting the jobs, jobs, jobs reality of the modern marijuana industry
- "Enforcing Federal Drug Laws in States Where Medical Marijuana Is Lawful"
Prez Donald Trump officially pardons Scooter Libby
Today the White House issued this "Statement from the Press Secretary Regarding the Pardon of I. “Scooter” Lewis Libby." Here is what it says:
Today, President Donald J. Trump issued an Executive Grant of Clemency (Full Pardon) to I. “Scooter” Lewis Libby, former Chief of Staff to Vice President Richard Cheney, for convictions stemming from a 2007 trial. President George W. Bush commuted Mr. Libby’s sentence shortly after his conviction. Mr. Libby, nevertheless, paid a $250,000 fine, performed 400 hours of community service, and served two years of probation.
In 2015, one of the key witnesses against Mr. Libby recanted her testimony, stating publicly that she believes the prosecutor withheld relevant information from her during interviews that would have altered significantly what she said. The next year, the District of Columbia Court of Appeals unanimously reinstated Mr. Libby to the bar, reauthorizing him to practice law. The Court agreed with the District of Columbia Disciplinary Counsel, who stated that Mr. Libby had presented “credible evidence” in support of his innocence, including evidence that a key prosecution witness had “changed her recollection of the events in question.”
Before his conviction, Mr. Libby had rendered more than a decade of honorable service to the Nation as a public servant at the Department of State, the Department of Defense, and the White House. His record since his conviction is similarly unblemished, and he continues to be held in high regard by his colleagues and peers.
In light of these facts, the President believes Mr. Libby is fully worthy of this pardon. “I don’t know Mr. Libby,” said President Trump, “but for years I have heard that he has been treated unfairly. Hopefully, this full pardon will help rectify a very sad portion of his life.”
I sure hope that Prez Trump might think to use his pardon powers for lots of other persons that he doesn't know that he may "have heard [were] treated unfairly" by our federal criminal justice system. So far, only a quite unrepresentative sample of four men have gotten clemency relief from this President.
US District Judge explains why he believes "the scales of justice tip in favor of rejecting plea bargains"
A helpful reader made sure I saw a remarkable new opinion from US District Judge Joseph Goodwin of the US District Court for the Southern District of West Virginia in US v. Stevenson, No. 2:17-cr-00047 (S.D. W. Va. April 12, 2018) (available here). The starts of the 19-page opinion should readily reveal why criminal justice fans why this opinion is today's must-read:
On June 26, 2017, I rejected the proffered plea agreement in United States v. Charles York Walker, Jr. after determining that it was not in the public interest. On October 10, 2017, I rejected the proffered plea agreement in United States v. Antoine Dericus Wilmore after determining that it also was not in the public interest. In both opinions, I stated that it is the court’s function to prevent the transfer of criminal adjudications from the public arena to the prosecutor’s office for the purpose of expediency at the price of confidence in and effectiveness of the criminal justice system.
I have further reflected upon the near-total substitution of plea bargaining for the system of justice created by our nation’s Founders, and I FIND that I should give great weight to the people’s interest in participating in their criminal justice system when considering whether to accept or reject a proffered plea bargain in a particular case. I FIND that the scales of justice tip in favor of rejecting plea bargains unless I am presented with a counterbalance of case-specific factors sufficiently compelling to overcome the people’s interest in participating in the criminal justice system.
Therefore, in each case, I will consider the case-specific factors presented to me and weigh those competing factors against the people’s participatory interest and then determine whether to accept or reject the plea bargain. Because I FIND that the presented justifications for the bargain in this case are insufficient to balance the people’s interest in participating in the criminal justice system, I REJECT the proffered plea agreement.
Prez Trump reportedly to pardon Scooter Libby
According to this ABC News piece, "President Donald Trump is poised to pardon Scooter J. Libby, the former chief of staff to Vice President Dick Cheney, according to sources familiar with the president’s thinking." Here is more:
The president has already signed off on the pardon, which is something he has been considering for several months, sources told ABC News.
The move would mark another controversial pardon for Trump and could raise questions as an increasing number of the president’s political allies have landed themselves in legal jeopardy. The White House has repeatedly said that no pardons are currently on the table for people caught up in the Russia investigation....
Libby was convicted in 2007 of lying to the FBI and obstruction of justice in the investigation into the leak of the identity of Valerie Plame, a former covert CIA operative. Then-President George Bush commuted Libby's 30-month sentence, sparing him prison time, but didn't pardon him.
After Libby claimed that he couldn't have been the source of the leak, multiple people came forward to testify that they learned of Plame's identity from Libby prior to when Libby said he had first received the information. At trial, Libby claimed to have simply forgotten he actually learned about the identity from Cheney a month before he said he had.
Since the conviction, Libby has since had his law license restored and former Virginia Gov. Bob McDonnell restored his voting rights in 2013. Many conservatives have been urging a pardon for Libby, including attorneys Joe diGenova and his wife, Victoria Toensing.
I am sincerely not sure what to say about this news, other than that I am tempted to go back and read some of the article I helped assemble for this October 2007 issue of the Federal Sentencing Reporter titled "Learning from Libby." I suppose I should be excited by the efforts of Prez Trump to make old issues of FSR great again.
April 12, 2018
Stoked for the OSU's Reckless-Dinitz Lecture featuring Professor John Pfaff
I have had the pleasure of spending a good part of today hanging out with Fordham Law Professor John Pfaff, who is on the Ohio State campus today to deliver the 29th Annual Walter C. Reckless - Simon Dinitz Memorial Lecture. John's talk today is titled "Moving Past the Standard Story: Rethinking the Causes of Mass Incarceration," and here is the abstract for this lecture:
Reducing America's exceptional reliance on incarceration is one of the few issues of genuine bipartisan cooperation these days. Yet despite years of work, change has been slow and halting. One critical reason is that the story we tell about what has driven prison growth often emphasizes causes that matter less at the expense of those that matter more.
We talk about the impact of long sentences — which certainly matter — but end up overlooking the even more important role of prosecutorial charging behavior in the process. We emphasize the need to stop sending people to prison for drugs, but as a result fail to talk about changing how we punish those convicted of violence — even though only 15% of the prison population is serving time for drugs, compared to over 50% for violence. And reformers frequently direct their attention on private prisons, and thus don't focus on the fact that public institutions hold over 90% of all inmates, and that (public) correctional officer unions and legislators with public prisons in their districts play far bigger roles than the private prison firms in pushing back against reform efforts. Even the modest reductions in prison populations since 2010 are something to celebrate, but more substantive cuts will require us to start asking tougher questions about the sorts of changes we need to demand.
US Sentencing Commission adopts (mostly minor?) 2018 guideline amendments
As reported in this official press release, "The United States Sentencing Commission unanimously voted on a slate of new amendments to the Guidelines Manual. Among other actions, the Commissioners voted to update the federal sentencing guidelines to address evolving challenges related to the distribution of synthetic drugs. The amendments reflect a collaborative, detailed, and data-driven approach to federal sentencing policy." Here are the substantive details:
At the meeting, the Commissioners approved a multi-part synthetic drugs amendment. The amendment draws upon public comment, expert testimony, and data analysis gathered during a multi-year study of synthetic drugs. Before today’s actions, many new synthetic drugs were not referenced in the federal sentencing guidelines. As a result, courts have faced expensive and resource-intensive hearings. The Commission’s actions reflect the evolving nature of these new drugs and will simplify and promote uniformity in sentencing these offenders.
Among today’s actions, the Commissioners voted to adopt a new guideline definition of the term “fentanyl analogue.” The change effectively raises the guideline penalties for fentanyl analogues to a level more consistent with the current statutory penalty structure. To address the severe dangers posed by fentanyl, the Commissioners also voted to adopt a four-level sentencing enhancement for knowingly misrepresenting or knowingly marketing fentanyl or fentanyl analogues as another substance (which equates to an approximate 50 percent increase in sentence).
The new amendment also establishes drug ratios and minimum offense levels for two new classes of synthetics drugs: synthetic cathinones (often referred to as “bath salts”) and synthetic cannabinoids (including, but not limited to, “K2” or “spice”). Following a multi-year study and series of public hearings with experts, the Commission found that synthetic cathinones possess a common chemical structure that is sufficiently similar to treat as a single class of synthetic drugs. The Commission also found that, while synthetic cannabinoids differ in chemical structure, the drugs induce similar biological responses and share similar pharmacological effects. In setting the new drug ratios, the Commission considered among other factors, the severity of the medical harms to the user, the current ratios applied in similar cases, known trafficking behaviors, and concerns for public safety. In recognition that potencies vary, the Commission also adopted departure language for drugs in a class that are more or less potent.
The Commission also voted to adopt a new application note providing that judges should consider alternative sentencing options for “nonviolent first offenders” whose applicable guideline range falls within Zones A or B. Eligible defendants must not have any prior convictions and must not have used violence, credible threats of violence, or possessed a firearm or other dangerous weapon in the offense. This narrowly-tailored amendment is consistent with the directive to the Commission in 28 U.S.C. § 994(j)....
At the meeting, the Commission also increased offense levels for certain Social Security fraud offenses to incorporate statutory changes resulting from the Bipartisan Budget Act of 2015. The Commission received valuable comment from the U.S. Senate Committee on Finance, the U.S. House of Representatives Ways and Means Committee, and the U.S. House of Representatives Judiciary Committee as well as the Social Security Administration. Today’s amendment provides for an enhancement and a minimum offense level for individuals who violate certain positions of trust (e.g., health care providers, claims representatives, and others) in a manner that addresses the seriousness and sophistication of these fraudulent schemes.
The Commission also voted to adopt the recommendations made by the Tribal Issues Advisory Group in its May 2016 report. The amendment provides a non-exhaustive list of factors that courts may consider in determining whether a prior tribal court conviction warrants an upward departure from the recommended sentencing range. The amendment also adds a definition for "court protection order” for purposes of applying an enhancement under the aggravated assault, harassment, and domestic violence guidelines. Other technical and miscellaneous amendments were also adopted at today’s public meeting.
As the press release also explains, these amendments "will be transmitted to Congress by May 1, 2018 [and if] Congress does not act to disapprove the amendments, they will go into effect on November 1, 2018." A reader-friendly version of the amendments are available at this link.
As the title of this post suggest, I think most of the amendments here can and should be described as fairly minor, save for the reworking of of the treatment of synthetic drugs. But I would welcome input from those more informed on the particular about anything here that might be especially blogworthy.
Federal prison reform bill reportedly moving forward in House of Representatives
This article in the Hill, headlined "Prison reform bill set for House markup next week," reports that there is some movement in Congress on the federal criminal justice reform bill that would seem to have a reasonable chance of passage this year. Here are the details:
The House Judiciary Committee is expected next week to mark up a Republican proposal that aims to reduce prison recidivism rates, according to a senior Republican staffer who has been briefed on the plans.
Rep. Doug Collins’s (R-Ga.) Prison Reform and Redemption Act would allow prisoners to serve the final days of their sentences in a halfway house or home confinement if they complete evidence-based programs that have been shown to reduce recidivism rates. Prison programming could include everything from job and vocational skills training to education and drug treatment.
The White House announced in February it was throwing its support behind prison reform measures such as Collins's bill instead of measures to reduce mandatory minimum prison sentences. The announcement marked a major setback for Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa), who has been working to move his criminal justice reform bill through Congress after it stalled last session....
The senior Republican staffer said they feel confident Collins's bill will pass through the House Judiciary Committee. A committee spokesperson said only that the committee is working toward a markup as soon as possible.
Senate Majority Whip John Cornyn (R-Texas) and Sen. Sheldon Whitehouse (D-R.I.) have a bill in the Senate that mirrors Collins's proposal.
The full text of the Prison Reform and Redemption Act (PRRA) is available at this link, and its text is so dense I find it difficult to effectively summarize its provisions or assess its impact. Helpfully, FAMM has this detailed summary of the PRRA that runs a full eight pages. I am hopeful that this news that the PRRA is moving forward in the legislative process could lead more folks to focus more attention on what this bill would and would not do and how many offenders it could impact.
April 11, 2018
Could former House Speaker John Boehner become the first big drug dealer capitally charged by AG Jeff Sessions?
The question in the title of this post is my (tongue-in-cheek?) reaction to this news that former Speaker of the United States House of Representatives John Boehner and former Governor of the State of Massachusetts Bill Weld have joined the Board of Advisors of Acreage Holdings. This company in this press release calls itself "one of the nation’s largest, multi-state actively-managed cannabis corporations" and on this webpage states that it has "cultivation, processing and dispensing operations across 11 states with plans to expand."
What this really means, legally speaking, is astutely explained in this tweet by LawProf Alex Kreit: "Oh look, here’s the former speaker of the house publicly announcing that he’s joined a conspiracy to manufacture and distribute a schedule I controlled substance and commit federal drug crimes on an ongoing basis." But, critically, Boehner is not merely announcing that his is not part of a massive drug conspiracy, he is also perhaps putting himself in position to be subject to the new push by Attorney General Jeff Sessions, discussed here, to "strongly encourage federal prosecutors to use" a federal statute that allows for pursuing the death penalty under 18 U.S.C. § 3591(b)(1) for persons guilty of "dealing in extremely large quantities of drugs."
Of course, as Christopher Ingraham explained in this Washington Post piece a few weeks ago, a whole lot of marijuana is required to make one eligible for the death penalty under federal law: "there is a federal capital punishment on the books for large quantities of marijuana — a substance with no known lethal dose that is legal for recreational use in nine states plus the District. The threshold is huge — 60,000 kilograms, or 60,000 plants, enough to fill several shipping containers." But, for a company — or should I say major drug conspiracy — like Acreage Holdings, this amount of marijuana may well be a regular part of regular business operations:
The quantity-based capital punishment provision is of particular concern to state-legal marijuana businesses. The plant remains illegal under federal law, regardless of what state laws say. Aaron Smith, executive director of the National Cannabis Industry Association, a trade group, said in an email that “there are many state-licensed cannabis businesses cultivating 60,000 plants or more.”
Needless to say, I am not expecting John Boehner or Bill Weld to be charged with a federal capital crime or any crime anytime soon. But I am expecting folks who read this post to better understand why existing federal marijuana prohibition laws garner so little respect and why I think anyone seriously committed to the rule of law ought to be advocating for at least some kind of federal reforms regardless of their particular policy views on particular state marijuana reforms.
"Victims of crime and reformers should work together on criminal justice reform"
The title of this post is the headline of this Washington Examiner commentary authored by Jordan Richardson, Laurie Garduque, and Mai Fernandez. Here are excerpts:
Recent criminal justice reforms, such as the creation of alternatives to incarceration and the tearing down of barriers to reentry from prison, have resulted in significant changes around the country. Nonetheless, there’s one thing that has remained the same: policymakers are failing to consult crime victims prior to the development and deployment of these reforms.
This National Crime Victims’ Rights Week, we urge jurisdictions across the country to bring victims to the table and ask them what they think about criminal justice reform and how they can create a criminal justice system that better takes into account how to make victims whole. Their suggestions may be surprising, and they will help ensure that the changes policymakers create will serve everyone affected by the justice system....
Too often, reformers avoid considering victims’ views because they assume the victims’ highest priority is punishment. But this is far from the truth. Recent polling published in 2017 by the Alliance for Safety and Justice found that only 4 percent of crime victims believe that “too few people in prison” contributes to crime in their community. In fact, 86 percent of victims believe that programs providing rehabilitation and drug and mental health treatment for people already in the justice system should receive more funding.
In order to encourage more crime victims to participate in improving our criminal justice system, The National Center for Victims of Crime has solicited feedback from victims and their advocates around the country. They found that victims seek reliable, sufficient, and accessible services, and they want justice system transparency and trauma-informed responses to their experiences. Crime victims also believe the justice system should be dedicated in part to making victims whole again, beginning with providing notification and protection for victims when formerly incarcerated individuals reenter the community.
Furthermore, victims think that if people are enrolled in diversion programs such as mental health courts or ordered to participate in drug treatment as part of their probation, these services should be affordable, effective, and adequately supervised. Lack of participant accountability causes victims to distrust and not want to engage with the justice system.
Crime victim survivors deserve a voice at the policy reform table. Many are strong supporters of the exact types of reforms criminal justice experts are advocating. They want their experiences to be acknowledged, and they want our justice system to be sensitive and respectful of their needs....
Ensuring that people coming out of prison have a chance to succeed should be a top concern, and victims can play a key role in informing policymakers about how to achieve public safety while respecting the human dignity of everyone involved.
Reformers must be willing to recognize that victims have been affected by unfair justice system policies and practices. They must also respond with adequate funding, research efforts, and resources. The question is, “How can we develop and transform our criminal justice system to improve services for everyone involved?” We cannot afford to leave victims out of criminal justice reform.
Can and will New Mexico carry out two executions even after its repeal of the death penalty?
The question in the title of this post is prompted by this local report on oral arguments before the New Mexico Supreme Court yesterday. Here are some details:
Even before abolishing the death penalty, New Mexico had executed only one inmate in nearly 50 years. And that person, child-killer Terry Clark, had waived his right to further appeals, clearing the way for his death by lethal injection in 2001.
The rarity of the death penalty in New Mexico emerged as a key point in oral arguments Tuesday as the state Supreme Court wrestled with whether to allow the execution of the state’s only two inmates remaining on death row. Their crimes came before the 2009 repeal, making them still eligible for execution.
Much of Tuesday’s debate was technical, focusing on “proportionality” — whether death for these two inmates would be out of line with the sentences for similar defendants who’d committed similar crimes.
Justice Charles Daniels zeroed in on the question this way: New Mexico, he said, executed 27 people in the first 47 years of statehood, and then only one in a 57-year period after that. And there were certainly people who committed “horrible murders” but escaped the death penalty, he said.
That raises a question, he suggested, about whether the state was “evenhanded” in deciding which people to execute. “Can we really look in the mirror and say we’ve walked the talk and imposed the death penalty consistently in New Mexico?” Daniels asked at one point.
Hanging in the balance are the lives of Robert Fry and Timothy Allen — both convicted of murder, in separate cases. Allen faces a death sentence for strangling a 17-year-old girl, Sandra Phillips, in 1994. He also was convicted of kidnapping and attempted rape. Fry was sentenced to die for the killing of Betty Lee, a mother of five, in 2000. She was hit with a sledgehammer and stabbed.
Their attorneys asked the state Supreme Court on Tuesday to revisit how New Mexico handled death cases from that era, in light of the 2009 repeal.
A 1983 decision by the court outlined how the judiciary should go about determining whether an inmate’s death sentence is disproportionate to the penalties imposed on similar defendants. The justices that year established a narrow view of which cases are similar — requiring that the defendants being compared had been convicted under the same aggravating circumstances.
But the attorneys for Fry and Allen argued for a broader pool of cases for comparison, in which defendants receive life sentences. You could argue that the “universe of cases” ought to include any case where the death penalty could have been sought, but wasn’t, they argued. Furthermore, they said, New Mexico hasn’t properly tracked the handling and circumstances of cases to provide a meaningful way to search for comparable crimes, making the 1983 decision impractical to carry out....
Assistant Attorney General Victoria Wilson urged the Supreme Court to stick with its 1983 decision on comparable cases. State law doesn’t require the kind of data collection the inmates’ attorneys say is necessary, she said. The question before the court, Wilson said, was simply whether the death sentence had been imposed arbitrarily.
"Privatizing Criminal Procedure"
The title of this post is the title of this newly posted article appearing on SSRN authored by J.D. King. Here is the abstract:
As the staggering costs of the criminal justice system continue to rise, many states have begun to look for non traditional ways to pay for criminal prosecutions and to shift these costs onto criminal defendants. Many states now impose a surcharge on defendants who exercise their constitutional rights to counsel, confrontation, and trial by jury. As these “user fees” proliferate, they have the potential to fundamentally change the nature of criminal prosecutions and the way we think of constitutional rights. The shift from government funding of criminal litigation to user funding constitutes a privatization of criminal procedure. This intrusion of market ideology into the world of fundamental constitutional rights has at least two broad problems: it exacerbates structural unfairness in a system that already disadvantages poor people, and it degrades how we conceive of those rights. This Article proposes solutions to ameliorate the harshest effects of these rights-based user fees but also argues for the importance of resisting the trend of the privatization of constitutional trial rights.
April 10, 2018
Federal district judge finds Michigan's elimination of good-time credit in Miller fix unconstitutional
As reported in this local article, a "federal judge has ruled a Michigan law violates the constitution by not allowing juvenile lifers to earn good-time and disciplinary credits while in prison." Here is more:
Following [the Supreme Court's ruling in Miller], the state put into law the ability to sentence child killers to a number of years with a chance of parole. Because that law does not allow those offenders to earn good-time credits, Goldsmith ruled it is unconstitutional and ordered the state calculate good-time and disciplinary credits for those who have already been re-sentenced under that law within 14 days.
“Today’s ruling is a tremendous victory for fairness in our criminal justice system,” Dan Korobkin, ACLU of Michigan Deputy Legal Director and one of the plaintiffs’ attorneys said in a statement. “Hundreds of youth who were serving unconstitutional life sentences will now benefit from good-time credits they earned in prison for good behavior, credits that were taken away from them by mean-spirited retroactive legislation in 2014.”
There are more than 360 people in the system who were children at the time of their crimes, including four from St. Clair County: Jimmy Porter, Raymond Carp, Michael Hills and Tia Skinner. “Restoring these credits to individuals who earned them will likely save the state millions of dollars, and will give deserving individuals a chance to reunite with their families when they no longer pose a threat to society,” Korobkin said.
The full ruling in Hill v. Snyder, No. 10-cv-14568 (April 9, 2018), is available at this link. Here is how it begins:
The United States Supreme Court has ruled that juveniles convicted of first-degree murder cannot be subject to mandatory life sentences without parole. Because of their lesser culpability and greater capacity to change, they must be sentenced under a process that gives them an individualized opportunity to present mitigating circumstances to avert such a harsh sentence. In response, the Michigan legislature enacted legislation that purported to comply with the Court’s ruling, which included the possibility of being resentenced to prison for a term of years. However, the legislature provided that in calculating any such sentence, the youth offenders were not to receive any credit -- known as good time or disciplinary credit -- even though such credits were earned while the youth offenders served their illegally imposed sentences. In that respect, the legislative response ran afoul of our Constitution’s ban on ex post facto laws -- the constitutional guarantee that laws may not retroactively criminalize conduct or enhance the punishment for criminal acts already perpetrated. For this reason, the Court must declare that provision of the statute unconstitutional and order that the youth offenders receive the credit that they have previously earned.
Looking into the modern state of the private prison industry in the states
The New York Times has this new extended article on the private prison industry as it operates in the states under the headline "Escapes, Riots and Beatings. But States Can’t Seem to Ditch Private Prisons." Here are excerpts:
In Arizona in 2015, a riot broke out in a private prison where previously three inmates had escaped and murdered a vacationing couple. After order was restored, the state revoked the contract of Management & Training Corporation and hired another private prison firm, the GEO Group.
Three years earlier, the GEO Group had surrendered its contract to run a Mississippi prison after a federal judge ruled that the inmates had not been protected from gang violence. The replacement: Management & Training Corporation.
The staying power of the two companies shows how private prisons maintain their hold on the nation’s criminal justice system despite large-scale failures. The field is dominated by a handful of companies who have swallowed the competition and entrenched their positions through aggressive lawyering, intricate financial arrangements and in some cases, according to lawsuits by the Mississippi attorney general, bribery and kickbacks....
Private prison companies can be found at every level of government, housing 9 percent of the nation’s prisoners. They emerged in the 1980s, when the number of inmates was quickly outstripping capacity, and they have an outsize influence in certain states, including Arizona, Florida, Hawaii, Mississippi and New Mexico.
Despite hundreds of lawsuits, findings that private prisons save taxpayers little to no money, and evidence of repeated constitutional violations, the number of privately housed inmates has risen faster since 2000 than the overall number of prisoners. In 2016, the number rose by about 1.5 percent, according to Justice Department figures....
Even states that have sworn off private prisons, or tried to cut back on their use, have found it difficult to extricate themselves. After the prisoners escaped in Arizona, the state tried to reduce the number of inmates held in that prison. But MTC claimed the state was violating its contract, which guaranteed a certain number of beds would be filled. Arizona had to pay the company $3 million. MTC still operates a facility in the state.
States that use private prisons can find themselves limited to a few big players. The largest are GEO Group, based in Florida; CoreCivic (formerly Corrections Corporation of America), based in Tennessee; and MTC, based in Utah. Two of the past four directors of the Federal Bureau of Prisons were later hired by CoreCivic.... The companies employ a variety of strategies, including hiring former corrections officials in high-level positions and giving what are sometimes enormous campaign contributions. GEO Group and CoreCivic gave close to half a million dollars to support Mr. Trump’s candidacy and inauguration. After he was elected, their stock prices soared.
Industry officials say they provide cost-effective ways to house inmates, and that they continue to expand into rehabilitation programs as more states seek alternatives to prison. CoreCivic says about 10,000 people in its facilities have obtained high school equivalency diplomas in the past five years, reflecting the company’s efforts to improve the ability of inmates to re-enter society. But some lawmakers say the claims of cost savings and other benefits do not check out. “There is no convincing argument of why we should have private prisons,” said Mike Fasano, a former Republican state senator from Pasco County, Fla., who voted against a 2012 measure to privatize much of Florida’s prison system....
Much of the industry’s power, critics say, is linked to campaign donations. GEO Group and CoreCivic have given nearly $9 million over the past fifteen years to state candidates and parties across the United States, with the overwhelming majority to Republicans, according to the National Institute on Money in State Politics. The two companies have also spent between $3 million and $4 million annually on lobbying, according to data from the institute and from the nonprofit Center for Responsive Politics. Steve Owen, a CoreCivic spokesman, said the magnitude of lobbying and campaign contributions was not unusual for an industry of its size.
The industry also promises savings. But such claims have been disputed, partly because many contracts allow the private prisons to cherry-pick the healthiest inmates while leaving those who need more care to publicly run facilities, making private prisons appear to be cheaper to run, critics say. The Justice Department’s inspector general concluded in 2016 that it could not accurately compare costs, partly because of “the different nature of the inmate populations and programs offered in those facilities.”
The department ordered a phasing-out of private facilities that year, saying they “compare poorly” with government prisons and citing a lack of substantial cost savings. One month after Mr. Trump’s inauguration, the department rescinded the decision....
In some communities, private prisons have become such large taxpayers and employers that backers have forecast economic doom in arguing against their closing. Perhaps no town is now as dependent as Eloy, Ariz., where four private prisons pay $2 million of the town’s $12.5 million annual operating budget, according to the city manager, Harvey Krauss.
Last week the NY Times had this other article looking at private prison realities under the headline "Inside a Private Prison: Blood, Suicide and Poorly Paid Guards."
April 9, 2018
Big Third Circuit panel ruling asserts age of retirement should be central to applying Eighth Amendment limits on long juvenile sentences
The Third Circuit today handed down a huge ruling today in US v. Grant, No. 16-3820 (3d CIr. April 9, 2018) (available here), to address the application of Eighth Amendment limits on juvenile sentences. The panel opinion runs nearly 50 pages (followed by a 10+ page partial dissent), but these paragraph sets up the context and part of the heart of the opinion (with emphasis in original):
This case presents several difficult challenges for this Court. It calls upon us to decide a novel issue of constitutional law: whether the Eighth Amendment prohibits a term-of-years sentence for the duration of a juvenile homicide offender’s life expectancy (i.e., “de facto LWOP”) when the defendant’s “crimes reflect transient immaturity [and not] . . . irreparable corruption.” Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016). Next, if we find that it does, then we must decide what framework will properly effectuate the Supreme Court’s determination that the Eighth Amendment affords nonincorrigible juvenile offenders a right to a meaningful opportunity for release. Furthermore, we must take great pains throughout our discussion to account for the substantive distinction that the Supreme Court has made between incorrigible and non-incorrigible juvenile offenders in order to ensure that the latter is not subjected to “a punishment that the law cannot impose upon [them].” Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 352 (2004)).
Our decision today therefore represents an incremental step in the constitutional discourse over the unique protections that the Eighth Amendment affords to juvenile homicide offenders....
[W]hat is clear is that society accepts the age of retirement as a transitional life stage where an individual permanently leaves the work force after having contributed to society over the course of his or her working life. See, e.g., Retirement, BLACK’S LAW DICTIONARY (10th ed. 2014) (“Termination of one’s own employment or career, esp. upon reaching a certain age . . . .”). It is indisputable that retirement is widely acknowledged as an earned inflection point in one’s life, marking the simultaneous end of a career that contributed to society in some capacity and the birth of an opportunity for the retiree to attend to other endeavors in life.
As we stated above, a non-incorrigible juvenile offender is not guaranteed an opportunity to live a meaningful life, and certainly not to a meaningful retirement. Nevertheless, in order to effectuate the Eighth Amendment’s requirement of meaningful opportunity for release, a juvenile offender that is found to be capable of reform should presumptively be afforded an opportunity for release at some point before the age of retirement. Cf. Graham, 560 U.S. at 58 (“To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society.” (internal quotation marks omitted) (quoting Estelle, 429 U.S. at 102)). A sentence that preserves the juvenile offender’s opportunity to contribute productively to society inherently provides him or her with “hope” to “reconcil[e] with society” and achieve “fulfillment outside prison walls.” Id. at 79. It also accounts for the Court’s trepidation that LWOP sentences deprive non-incorrigible juvenile offenders of vocational training opportunities, which presumably otherwise prepare them to become productive members of society’s working class. See id. at 74.
Accordingly, lower courts must consider the age of retirement as a sentencing factor, in addition to life expectancy and the § 3553(a) factors, when sentencing juvenile offenders that are found to be capable of reform. Critically, under all circumstances, lower courts must only consider the uniform national age of retirement. Otherwise, estimates of retirement ages that account for locality, state, gender, race, wealth or other differentiating characteristics raise similar constitutional concerns to those plagued by reliance on life-expectancy tables alone. Without fixing the age of retirement to a uniform standard, classes of juvenile defendants that retire on average later in life would unreasonably be subjected to longer sentences. Cf. Mathurin, 868 F.3d at 932 (sentencing juveniles based solely on mortality tables “would unquestionably lead to challenges from defendants from longer-living ethnic groups who would be subject to longer sentences based on that ethnicity”).
Because I am on the road today, I may not be able to review and further comment on this big opinion for some time. But I surmise there is a whole to worth discussing in this opinion, and I hope commentors might share a range of thoughts about it.
Guest Post: "Do Two Misdemeanors a Felony Make?"
The question in the title of this post is posed by by North Caroline lawyer Bruce Cunningham to set up his discussion of a notable recent decision from his state's top court. Bruce was kind enough to write up the following for this blog on the ruling:
Last Friday, the North Carolina Supreme Court flirted with, but unfortunately avoided, one of the most important questions impacting modern criminal sentencing; “What is the nature of a prior conviction?” Can it be used as an ‘element’ of a substantive criminal offense?” Or, must its role be confined solely to increasing the level of punishment for a crime, but not the level of the crime itself?”
State v Howell, opinion here, involved a conviction for possessing marijuana, a Class 1 Misdemeanor, which carries up to 4 months in jail. Because the defendant had previously been convicted of the same offense, the Defendant faced being “punished as a Class 1 Felony.” The prosecutor also charged the Def. with being an habitual felon, under the N.C. three strike law.
As a result Howell was sentenced to 29 to 36 months in prison, which was suspended for 36 months on probation. So, Howell’s conduct on the day of the offense exposed him to 4 months in jail, and his prior record earned him the additional 32 months.
The narrow issue presented in Howell related to the “intent of the legislature” concerning whether the phrase “be punished as a class I felony,” is the equivalent of “committed a class I Felony. The N.C Supreme said it was. Because the defendant did not argue a federal constitutional claim, the case will go no further, which leaves open the issue of whether the use of prior convictions as elements of crime passes constitutional muster.
During oral argument in United States v Johnson, both Justice Scalia and Justice Stevens questioned if two misdemeanors can make a felony. Johnson, No 08-6935, Oral argument transcript p. 49 (October 6, 2009). Justice Scalia inquired, “Have we ever approved that, by the way, kicking a misdemeanor up to the felony category simply because of recidivism?”
It appears that in McDonald v Massachusetts, 180 U.S. 311 (1901) not only did the Court address the question, it answered “No”. In McDonald, the Court considered whether habitual felon statutes violated double jeopardy, and stated, “The allegation of previous convictions is not a distinct charge of crimes but is necessary to bring the case within the (habitual felon) statute, and goes to the punishment only.”
There are many felonies in N.C. which are charged because a defendant commits the same misdemeanor twice. Felonious Stalking, Breaking into a Coin Machine, Habitual DWI, Habitual Misdemeanor Assault, etc. There may be other states which have similar “recidivist felonies”
Howell said that it is okay to kick up a misdemeanor to a felony if the legislature intended the elevation of the second misdemeanor. Justice Scalia’s question of whether the notion of two misdemeanors making a felony passes constitutional muster, must await another day.
Two notable new accounts of Jared Kushner's push for criminal justice reforms inside Trump Administration
This weekend brought two notable new articles focused on Jared Kushner's efforts to help move forward criminal justice reform from within the Trump Administration. Here are links to the articles and their starts:
Amid the daily turmoil and intrigue of President Donald Trump’s West Wing, senior adviser Jared Kushner has been quietly pursuing a personal passion: seeking to improve the lives of roughly 6.7 million people in jail, prison, on parole or probation in the United States and sharply reducing the chances ex-convicts return behind bars.
Over the past 14 months, the president’s son-in-law has met with dozens of members of Congress, 11 governors and convened nine listening sessions, with experts and advocates developing initiatives to reduce the nation’s recidivism rate, an administration official said.
Kushner’s mission has so far been largely below-the-radar in a White House that’s branded itself as tough on crime, but sources familiar with the effort say he has persisted in elevating it as a legislative priority – even winning the president’s ear. His approach is somewhat novel — taking the reins on an issue that traditionally has not been at the forefront of the Republican platform.
Along the way, Kushner’s had to carve an acceptable path for reform within the Republican party and with an attorney general, Jeff Sessions, who has long held tough on crime views. Kushner's "come in and provided a very good ‘let’s get it done’" attitude, said Republican Rep. Doug Collins of Georgia, a leading advocate on prison reform in the U.S. House.
President Trump has even come to see the effort as a way to help the “forgotten men and women” whose voices he vowed to represent with his historic 2016 campaign, according to several people close to the effort. One senior administration official went so far as to characterize the White House view of what they called unacceptable conditions of America’s prisons as being like warehouses for storing human trash.
“The Administration wants to assist long-time prison reform advocates with their initiative to create a prison system that will rehabilitate citizens who have made mistakes, paid the price and are deserving of a second chance — which will ultimately reduce crime and save taxpayer dollars,” Kushner told ABC News of the effort.
President Donald Trump wants to help federal inmates “who have served their time get a second chance.” That’s what he said in his 2018 State of the Union address. Thank Trump’s senior aide and son-in-law Jared Kushner, not his attorney general. For Kushner, prison reform is personal. In 2005, his real estate mogul father was sentenced to two years in prison after pleading guilty to tax evasion, witness tampering and making illegal campaign donations.
“Like me, Jared understands because of dealing with the BOP (Bureau of Prisons) and his father,” observed Pat Nolan, director of the American Conservative Union Foundation’s Center for Criminal Justice Reform and a former California GOP state lawmaker who served 29 months in federal prison on a racketeering conviction.
Nolan has been at the forefront of a bipartisan movement to overhaul the federal criminal justice system spurred by the left’s aversion to big spending on prisons and the right’s support for smaller, less invasive government. The conservative side of the initiative calls itself “Right on Crime.” He lauded Kushner for quickly learning “what’s important to do and what we can’t do.”
April 8, 2018
Interesting Vermont Supreme Court ruling on sex-offender probation conditions
As reported in this local press article, the "Vermont Supreme Court ruled on Friday that the state cannot uniformly declare pornography off-limits to sex offenders." Here is more from the press report:
The decision does allow a sex offender’s probation to include such restrictions, but only if they are deemed specifically appropriate to the individual offender. The 18-page decision dealt with the probation conditions of a man convicted of sexual assault in 2012 in Chittenden County....
[Yetha L. Lumumba] appealed several conditions of his probation, including one that prohibited him from “purchasing, possessing or using pornography or erotica and going to adult bookstores, sex shops, and topless bars,” according to court records. The condition was described at the sentencing hearing as a standard one for sex offenders because pornography is seen as contributing to an increased risk of reoffending
“Vermont’s probation statute makes it clear that a court cannot prohibit a probationer from engaging in lawful behavior unless the prohibition relates to the defendant’s rehabilitation or public safety,” the Supreme Court justices wrote. “Other courts have persuasively concluded that a sentencing court must provide at least some support on the record for imposing a probation condition restricting a defendant’s use of pornography, even when the defendant was convicted of a sex offense.”
The full ruling in Vermont v. Lumumba, 2018 VT 40 (Vt. April 6, 2018), is available at this link and covers lots of ground and cites a lot of law beyond the Green Mountain state. Here is how the unanimous opinion gets started:
Defendant challenges so-called standard and special sex-offender probation conditions that the trial court imposed following his conviction for sexual assault. Defendant argues that this Court should strike a number of the standard conditions imposed by the trial court in its written order because the conditions were not orally pronounced during the sentencing hearing and were not sufficiently connected to his crime or rehabilitation. He also argues that the sex-offender condition prohibiting defendant from purchasing, possessing, or using pornography or erotica and from going to “adult bookstores, sex shops, topless bars, etc.” is unrelated to his offense and unconstitutionally vague. We conclude that defendant failed to properly preserve his objections to the standard conditions and review them for plain error. Based on the particular provisions and the State’s concessions, we strike some conditions, remand some conditions, and affirm the remaining conditions. We strike the challenged special condition as unsupported by the record.
George Will commentary assails felon disenfranchisement in Florida
I am very pleased to see this effective commentary by George Will under the headline "There’s no good reason to stop felons from voting." I recommend the short piece in full, and here are parts that struck me as especially effective:
Intelligent and informed people of good will can strenuously disagree about the wisdom of policies that have produced mass incarceration. What is, however, indisputable is that this phenomenon creates an enormous problem of facilitating the reentry into society of released prisoners who were not improved by the experience of incarceration and who face discouraging impediments to employment and other facets of social normality. In 14 states and the District , released felons automatically recover their civil rights.
Recidivism among Florida’s released felons has been approximately 30 percent for the five years 2011-2015. Of the 1,952 people whose civil rights were restored, five committed new offenses, an average recidivism rate of 0.4 percent. This sample is skewed by self-selection — overrepresentation of those who had the financial resources and tenacity to navigate the complex restoration process that each year serves a few hundred of the 1.6 million. Still, the recidivism numbers are suggestive.
What compelling government interest is served by felon disenfranchisement? Enhanced public safety? How? Is it to fine-tune the quality of the electorate? This is not a legitimate government objective for elected officials to pursue. A felony conviction is an indelible stain: What intelligent purpose is served by reminding felons — who really do not require reminding — of their past, and by advertising it to their community? The rule of law requires punishments, but it is not served by punishments that never end and that perpetuate a social stigma and a sense of never fully reentering the community.