« April 15, 2018 - April 21, 2018 | Main | April 29, 2018 - May 5, 2018 »

April 28, 2018

"Punishment and Human Dignity: Sentencing Principles for Twenty-First Century America"

The title of this post is the title of this paper by Michael Tonry recently posted to SSRN.  Here is its abstract:

A new conception of justice in punishment is needed that is premised on respect for offenders’ human dignity. It needs to acknowledge retributive and utilitarian values and incorporate independently important values of fairness and equal treatment.  Punishment principles, policies, and practices lined up nicely in mid-twentieth century America. Utilitarian principles implied a primary goal of crime prevention through rehabilitation and avoidance of unnecessary suffering by offenders.  Judges and parole boards were empowered to tailor decisions to fit offenders’ circumstances and interests.  Corrections officials sought to address rehabilitative needs and facilitate achievement of successful, law-abiding lives.  The system often did not work as it should, but its ideals, aspirations, and aims were clear.  In our time, there are no commonly shared principles, sentencing laws and practices are unprecedentedly rigid and severe, judges and parole boards often lack authority to make sensible or just decisions, corrections officials are expected simultaneously to act as police officers, actuaries, and social workers, and injustice is ubiquitous.

April 28, 2018 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (5)

April 27, 2018

"Death Qualification in Black and White: Racialized Decision Making and Death‐Qualified Juries"

The title of this post is the title of this new paper authored by Mona Lynch and Craig Haney now available via SSRN. Here is its abstract:

Death qualification has been shown to have a number of biasing effects that appear to undermine a capital defendant's Sixth Amendment right to a fair jury.  Attitudes toward the death penalty have shifted modestly but consistently over the last several decades in ways that may have changed the overall impact of death qualification.  Specifically, the very large gap between black and white Americans' current support for capital punishment raises the question of whether death qualification procedures disproportionately exclude African Americans from capital jury participation.

In order to examine this possibility, we conducted two countywide death penalty attitude surveys in the California county that has the highest percentage of African American residents in the state.  Results show that death qualification continues to have a number of serious biasing effects — including disproportionately excluding death penalty opponents — which result in the significant underrepresentation of African Americans.  This creates a death‐qualified jury pool with the potential to be significantly more likely to ignore and even misuse mitigating factors and to rely more heavily on aggravating factors in their death penalty decision making.  The implications of these findings for the fair administration of capital punishment are discussed.

April 27, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Senator Chuck Grassley makes full-throated case for Sentencing Reform and Corrections Act

Sen_Chuck_Grassley_KCRGSenate Judiciary Chair Charles Grassley is continuing to pitch his desired approach to statutory criminal justice reform in the form of the Sentencing Reform and Corrections Act that passed out of his committee earlier this year. Today his pitching efforts include this lengthy new Fox News commentary under the headline "Sentencing reform bill will fight crime." I recommend the piece in full, and here are excerpts:

In the 1980s, with our nation facing an influx of drug crimes, Congress passed into law stiff penalties targeting all levels of offenders. The goal was to deter crime through harsh sentences. While well-intentioned, these policies came with a cost. Over time, prisons began to fill up with offenders of all stripes. Lower-level, nonviolent drug offenders were locked up alongside career criminal masterminds. Lengthy mandatory minimum sentences offered little flexibility for judges to take individual circumstances into account and left scant prospects for rehabilitation.

Taxpayers shell out more than $7 billion annually – roughly 25 percent of the entire Justice Department budget – just to house the ballooning federal prison population, almost half of which is serving time for drug crimes.

These policies have been in place for more than three decades now, and yet we are facing a new wave of drug crimes – this time with crowded prisons syphoning scarce resources away from other law enforcement priorities. It’s clear that the policies of the 1980s need a fresh look. We need a more strategic approach to drug sentencing that focuses law enforcement resources on violent career criminals and drug kingpins instead of non-violent, lower level offenders. That is why I worked with several of my colleagues in the Senate to craft the Sentencing Reform and Corrections Act.

This legislation is the product of years of thoughtful bipartisan deliberations and has earned the support of lawmakers, advocates and experts from across the political spectrum. The bill is tough on crime and focuses law enforcement efforts on the worst criminals. But it also promotes fairness in sentencing, especially for lower-level, nonviolent offenders. Similar reforms at the state level have reduced crime, closed prisons and cut taxpayer costs.

This bill strengthens important crime-fighting tools and aids in the fight against the opioid epidemic. It preserves cooperation incentives to help law enforcement take down serious criminals, and stiffens penalties for violent felons. The legislation adds new mandatory sentences for federal domestic violence crimes and weapons trafficking to terrorists. And it supports the fight against the opioid epidemic through enhanced penalties for traffickers of the deadly drug fentanyl.... Mandatory minimum penalties would be preserved to ensure that criminals face clear consequences for their actions. But penalties would be lowered under the bill for lower-level, nonviolent offenders to give judges additional discretion at sentencing.

Judges would still be free to impose stiff criminal penalties, but they could also take into account individual circumstances to ensure that the punishment fits the crime. This approach would prevent prisons from being overcrowded with lower-level, nonviolent criminals serving unnecessarily long sentences. In the interest of fairness, the bill would make these reforms available to some inmates who have already been sentenced under harsh mandatory minimum laws. Under the bill, an inmate with a minimal criminal history could request that a judge review his or her case to determine if the sentence should be reduced. Notably, violent and career criminals would not qualify for this relief....

The Sentencing Reform and Corrections Act would save taxpayers hundreds of millions of dollars. This frees up resources to pay for the prison reform programs that the Trump administration supports. These programs are designed to reduce recidivism and help prisoners return to the workforce. Savings from our bill could also be used to support law enforcement efforts to fight the opioid epidemic and go after major drug importers and distributers. Without sentencing reform, Congress would have to appropriate additional funds for these programs, potentially adding to our growing budget deficit, projected to be more than $1 trillion by 2020.

The Sentencing Reform and Corrections Act has united policymakers across the political spectrum. It is co-sponsored by more than a quarter of the Senate, evenly divided among Republicans and Democrats. The bill is also backed by a diverse array of groups including FreedomWorks, the American Conservative Union, Prison Fellowship, Families Against Mandatory Minimums, the American Civil Liberties Union, the NAACP, and Law Enforcement Leaders to Reduce Crime and Incarceration – a group of more than 200 respected law enforcement officials from around the country. No other proposal enjoys the same level of bipartisan support.

The notion that Congress can enact meaningful criminal justice reform by focusing solely on the back-end of the process without addressing the underlying disparities in prison sentencing is naïve and unproductive. There will never be enough funding for back-end prison reform programs as long as there is a steady stream of new inmates with lengthy sentences disproportionate to their crimes. Instead of keeping lower-level, nonviolent inmates in prisons longer for no good reason, we must work to ensure that our limited resources are used to go after our worst criminals and to prevent inmates from committing new crimes when they leave prison....

The bill proves that Congress can be tough on crime while enacting reasonable and responsible public policy. And, importantly, in an increasingly polarized political environment, the Sentencing Reform and Corrections Act is the only proposal that has the votes necessary to become law. I look forward to continuing to work with the Trump administration and my colleagues in the Senate and House on the important issue of criminal justice reform.

I am so very pleased to see Senator Grassley continuing to work hard to secure passage of the SRCA. As I have reported in the past, various Senators have indicated that that are perhaps as many as 70 to 80 votes in support of this bill in the Senate. If Senator Grassley can convince Senate Majority leader Mitch McConnell to allow a floor vote on the SRCA, it would seem nearly certain to pass. Perhaps we should try to start a campaign like #LetThemVoteonSRCA.

A few of many prior related posts:

UPDATE: I just noticed that Fox News also has this competing commentary from Ron Hosko, a former assistant director of the FBI, headlined "Cutting federal prison terms would endanger communities and reward criminals." Here is an excerpt:

The Grassley legislation would make our communities less safe by returning still more convicted criminals from federal prisons to the streets sooner. In addition, the Grassley bill would tie up hundreds of federal prosecutors, who would be forced to deal with sentencing reduction motions filed by prisoners seeking early release. This means the prosecutors would have less time to handle new cases involving dangerous criminals.

The Grassley bill would reduce federal prison sentences not only for “non-violent, low-level drug offenders” but serious drug traffickers, members of violent drug cartels and people convicted of firearms crimes.

In addition, Grassley’s bill ignores the reality that strong federal sentencing guidelines have another valuable byproduct – squeezing cooperation from reticent criminals so they will testify against other criminals, while incentivizing them to plead guilty to lesser offenses to get shorter prison terms....

While much has been made of the harshness of federal minimum mandatory sentences and their impact on reform and on families, Bureau of Prisons records show that half of federal prisoners are serving sentences of 10 years or less. Only about 16 percent are serving sentences of 20 years or more....

Grassley’s legislation is both poorly timed and ill-advised. It’s little more than a rehashed “jailbreak” bill that should be permanently scrapped, taking with it the mistaken notion that federal prisons remain filled with “low level, non-violent” drug offenders. The good senator from Iowa would do better for all Americans by drafting legislation that empowers validated methodologies shown to steer the willing away from prison while building the opportunity, skill sets and individual tools needed to make released convicts more “crime resistant.”

April 27, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Who Sentences? | Permalink | Comments (2)

April 26, 2018

Bureau of Justice Statistics reports 2016 declines in number incarcerated and subject to community supervision in United States

This press release from the Bureau of Justice Statistics reports on the notable data appearing in two notable new BJS publications:

The number of adults supervised by the U.S. correctional system dropped for the ninth consecutive year in 2016. The correctional population includes persons supervised in the community on probation or parole and those incarcerated in prisons or local jails. This report from the Bureau of Justice Statistics is the latest official snapshot of the state of the U.S. correctional population.

From 2007 to 2016, the proportion of the adult population under the supervision of U.S. correctional authorities decreased by 18 percent, from 3,210 to 2,640 adults under correctional supervision per 100,000 residents. The number of adults under correctional supervision per 100,000 U.S. adult residents was lower in 2016 (2,640) than at any time since 1993 (2,550). Overall, about 1 in 38 adults were under some form of correctional supervision at year-end 2016.

An estimated 6,613,500 persons were under correctional supervision on December 31, 2016, about 62,700 fewer persons than on January 1. The total correctional population declined 0.9 percent during 2016 due to decreases in both the community supervision population (down 1.1 percent) and the incarcerated population (down 0.5 percent).

The incarcerated population decreased from 2,172,800 in 2015 to 2,162,400 in 2016. All of the decrease in the incarcerated population was due to a decline in the prison population (down 21,200), while the jail population remained relatively stable. The number of persons held in prison or local jail per 100,000 U.S. adult residents (incarceration rate) has declined since 2009 and is currently at its lowest rate (860 per 100,00 in 2016) since 1996 (830 per 100,000).

During 2016, the community supervision population fell from 4,586,900 on January 1 to 4,537,100 at year-end. All of the decrease in the community supervision population in 2016 was due to a decline in the probation population (down 52,500). The parole population increased 0.5 percent in 2016 (up 4,300 persons). More than two-thirds (69 percent) of the correctional population were supervised in the community at year-end 2016, similar to the percentage observed in 2007.

These data and a whole lot more appear in these two new BJS publications:

UPDATE: Keith Humphryes has here his typically sharp WonkBlog commentary here focused on these new data under the headline "The U.S. prisoner population continued to shrink in 2016, new data show." Here concludes this way (with links from the original):

A smaller correctional population is a dividend of lower crime rates combined with a national wave of sentencing and rehabilitation reforms at the state level.  Because the current generation of adolescents and adults is committing significantly less crime than did prior generations at their age, there will be ample opportunity to shrink the correctional system even further in the coming years.

April 26, 2018 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (2)

You be the state judge: what sentence for Bill Cosby for conviction on three counts of aggravated indecent assault?

This brief CNN report details why there is a new celebrity sentencing watch now:

The jury in Bill Cosby's indecent assault trial found the comedian guilty Thursday of all three counts.

Cosby was convicted on three counts of aggravated indecent assault for drugging and sexually assaulting Andrea Constand in a Philadelphia suburb in 2004. The 80-year-old former comedian faces up to 10 years in prison on each count, but would likely serve them concurrently....

The case against Cosby centered on testimony from Constand, a former employee with Temple University women's basketball team. She testified that Cosby, a powerful trustee at Temple, drugged her and sexually assaulted her when she visited his home to ask for career advice.

Cosby's defense team argued that their interaction was consensual. Constand is a con artist, they argued, who wanted a piece of Cosby's fortune....

Although dozens of women have accused Cosby of sexual misconduct, only Constand's allegations resulted in criminal charges.

The last line of this report highlights one of many reasons that the coming sentencing proceeding for Cosby may prove so interesting. It will be interesting to see whether and how the state will try to bring in evidence of other alleged assaults as "relevant conduct."  Because I do not know well Pennsylvania sentencing law and practice, I would be especially eager to hear from PA practitioners about how they expect a forthcoming sentencing to proceed.

April 26, 2018 in Celebrity sentencings, Offense Characteristics | Permalink | Comments (10)

Federal criminal justice reform bogs down again in fight over whether prison reform or broader sentencing reform moves forward

Politico has this lengthy and discouraging article about the state of federal criminal justice reform under the headline "Kushner-backed prison reform bill stumbles in House."  Here are excerpts:

The House Judiciary Committee scrapped plans to vote on a prison reform proposal Wednesday, potentially dooming one of the few remaining prospects for significant bipartisan compromise this Congress.

The last-minute postponement of the measure came as President Donald Trump’s son-in-law and adviser Jared Kushner visited Capitol Hill to rally support for it.  But the delay also followed what multiple House sources described as a behind-the-scenes opposition campaign from two Senate heavyweights, one from each party.

Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Senate Minority Whip Dick Durbin (D-Ill.) have told House Judiciary panel members to oppose a narrower prison reform bill without the addition of a sentencing overhaul they spent months negotiating, House sources said.

The Trump administration and GOP leaders want to see a prison-only bill move, not the broader criminal justice bill, but that’s not stopping Grassley and Durbin from what one Republican portrayed as meddling in the House debate.  “Frankly, I respect the two senators, but they have enough problems in the Senate,” said Rep. Doug Collins (R-Ga.), the House GOP’s lead author of the prison reform legislation, in a Wednesday interview. “I wish they would actually focus on passing bills over there. That would be nice.”

Durbin denied that he was telling the House to slow down on the prison-only approach: “We’re just saying that over here, the two need to be together.” But Durbin confirmed Wednesday that he has talked to the House Judiciary panel’s top Democrat, Rep. Jerry Nadler of New York, about the importance of keeping the two bills together while Grassley has reached out to Republicans to pitch a comprehensive approach....

The Senate’s lobbying threatens to kill momentum for the Kushner-backed House bill, which would provide training programs to prisoners in hopes of discouraging repeat offenses.  The omission of sentencing changes is opposed not only by Grassley and Durbin but by dozens of powerful progressive groups including the ACLU and the NAACP. Those groups say the bill doesn’t go far enough and should also include language that would reduce sentences for some prisoners.

House Judiciary Chairman Bob Goodlatte (R-Va.) blamed Wednesday’s delayed vote on “time constraints” and said the postponement will give negotiators more time to work out “minor issues.” The panel is now scheduled to consider the bill during the week of May 7.

But the impasse doesn’t show any signs of being resolved soon. In his statement at the beginning of the hearing Wednesday, Nadler said negotiators should consider including sentencing reform in their discussions.  “In my view, considering prison reform without consideration of sentencing reform has the process backward, and avoids the difficult but necessary legislating on that critical issue,” Nadler said.

Nadler later told POLITICO he would be "very reluctant” to support any bill that didn’t include sentencing reform but wouldn’t say whether his opposition, as the top Democrat on the panel, was enough to sink the proposal: “Never say never, but I’d be very reluctant."

But supporters of the narrower prison reform push say a comprehensive strategy is a futile effort and would nix the chances of any bipartisan bill getting to the president’s desk this year.  Attorney General Jeff Sessions, a staunch critic of sentencing reform, opposed a similar proposal before Trump tapped him to lead DOJ and has publicly clashed with Grassley over the issue this year.

However, there’s lingering distrust among House Democrats that Sessions is operating in good faith. Democrats successfully nixed multiple “poison pill“ amendments they said were floated by DOJ during talks on the bill but said privately they’re concerned that Sessions does’'t actually want to see any criminal justice legislation come to fruition.

Grassley also acknowledged in an interview with POLITICO this week that he has yet to persuade Senate Majority Leader Mitch McConnell (R-Ky.) to bring the comprehensive criminal justice bill to the floor.  “It’s my job to show McConnell that this bill has got plenty of support at the grass roots, that it’s got good bipartisan support,” Grassley said. “It’s something that a president needs a bipartisan bill to sign and there’s all kinds of reasons why this bipartisan bill should be brought up, whether the House passes a bill or not.”...

Senate Majority Whip John Cornyn (R-Texas), who supported Grassley’s efforts on a broader criminal justice package during the Obama administration but has narrowed his sights given the Trump administration’s opposition, delivered a floor speech Wednesday urging the two camps to come together on a prison-only approach. “I know other people have other ideas, perhaps about sentencing reform and the like,” Cornyn said, “but in this political environment, I’m for doing what we can do rather than spinning our wheels being frustrated about what we can’t do because there’s simply not the political support in the House and the Senate and at the White House to get it done.”

I am glad that Senators Grassley and Durbin remain deeply committed to getting a bigger criminal justice reform bill passed, but I continue to fear that Senate Majority Leader McConnell will continue to be unwilling to allow a floor vote on the Sentencing Reform and Corrections Act.  Senator McConnell has shown in other settings his ability to be stubborn, and his enduring resistance to the SRCA leads me to be pessimistic about any sentencing reforms getting through Congress this year.

I surmise Senators Grassley and Durbin, and perhaps many reform advocates who have come out against a prison-reform-only bill, believe that passage of a broad bill through the House might make it more likely that Senator McConnell will allow a floor vote.  Perhaps so, and I hope they can get it done.  But I am not optimistic, and I continue to think that getting prison reform done ASAP can be a needed and useful first step toward an array of badly-needed statutory reform of our federal criminal justice system.

A few of many prior related posts:

April 26, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

Texas completes its fifth execution of 2018

As reported in this AP piece, a "prisoner on Texas death row for killing a 5-year-old girl and her grandmother in a gang-related shooting at a child's birthday party in Fort Worth a decade ago was executed Wednesday evening." Here are a few more details about the execution and the defendant's crimes:

Erick Davila received lethal injection for using a laser-sighted semi-automatic rifle to spray bullets at about 20 people — more than a dozen of them children. Annette Stevenson, 48, and her granddaughter, Queshawn Stevenson, were killed and four others were wounded, including the girl who was celebrating her 9th birthday.

Davila, 31, belted to a gurney in the Texas death chamber, offered no apologies. He appeared almost cocky as several relatives of his victims entered the witness area of the death chamber, raising his head off the gurney and acknowledging some that he appeared to know. "I may have lost the fight but I'm still a soldier," he said when asked by the warden if he wanted to make a statement. "Take it as it is. To my supporters and family, y'all hold it down. Ten toes down. That's all I got to say."

He was pronounced dead at 6:31 p.m. CDT, 14 minutes after the lethal dose of the powerful sedative pentobarbital was administered. Davila was the ninth prisoner executed in the U.S. this year, five of them in Texas.

Authorities said the April 6, 2008, attack was in apparent retaliation for a previous run-in Davila had with the slain girl's father, who was attending the party.  The U.S. Supreme Court rejected an appeal from Davila's lawyers about 30 minutes before the punishment was carried out....

Defense lawyers at Davila's trial tried to show he didn't intend to kill multiple people, a criterion for the capital murder charge.  They argued he instead only intended to kill Jerry Stevenson, whose daughter and mother were shot to death. Authorities said Stevenson belonged to a rival gang and that Davila believed members of that gang shot him in 2005. Stevenson denied belonging to the gang.

Davila was accused but not tried in another fatal shooting just days before the birthday party slayings. While awaiting trial for capital murder, he also attacked Tarrant County jailers and maintenance workers during an escape attempt.  He previously served prison time for a 2004 burglary in Tarrant County and was released after about a year.

April 26, 2018 in Death Penalty Reforms | Permalink | Comments (0)

April 25, 2018

"6 Months Since Trump Declared an Opioid Emergency, What's Changed?" ... other than AG Sessions "strongly" encouraging capital prosecutions?

The quoted portion of the title of this post is the headline of this notable new Governing article, which provides this answer via a subheadline: "Some health officials say nothing. Members of Congress, meanwhile, are taking matters of money for the drug crisis into their own hands." Here are excerpts:

On Oct. 26 last year, President Donald Trump declared the opioid epidemic -- which took more than 64,000 lives in 2016 -- a national emergency.  More specifically, he declared it a public health emergency, which can be used to ease some federal rules for the U.S. Department of Health and Human Services (HHS) to, among other things, make more people eligible for Medicaid or dispatch more medical professionals to the areas hit hardest by the drug crisis.

The declaration has already been extended twice, most recently on Tuesday.  But health policy experts say it's unclear what -- if any -- HHS rules have been waived since the declaration.  Moreover, Trump did not directly offer state and local governments more money to combat the drug crisis.  Because of this, some say the declaration has been nothing more than an empty promise.  "We’ve seen no effect here in Baltimore from the emergency [declaration]," says Leana Wen, the city's health commissioner. "We could save so many more lives if we had more resources. We don’t need any more rhetoric."  Wen worked with members of Congress to take matters of money into their own hands....

There are at least seven other bills floating around Congress to address the opioid epidemic. The most comprehensive with the most bipartisan support is the Comprehensive Addiction and Recovery Act (CARA) 2.0. It offers $1 billion more than current federal funding for treatment and prevention programs and would mandate a three-day limit for first-time opioid prescriptions.

Frustration over federal inaction is even boiling over within the president's own party.  Before Trump traveled to New Hampshire to talk about opioids, the state's Republican governor, Chris Sununu, reportedly confronted White House officials about the lack of funding to back up the emergency declaration.  "The president cannot come to New Hampshire without a plan that has substance," Sununu told White House aides, according to CBS News.

Trump still gave his scheduled speech there in March to unveil new initiatives to fight the opioid epidemic.  He focused on cracking down on illegal immigration and drug dealers. Since then, Attorney General Jeff Sessions has directed federal prosecutors to seek the death penalty for some drug traffickers....

His focus on law-and-order tactics exasperated many health officials. "I'm deeply concerned with the focus on incarceration. It goes against what science says, which is that addiction is a disease.  We know that treatment works.  The war on drugs doesn't," says Wen.

The plan the White House released after Trump's New Hampshire speech did include several bipartisan, health-focused efforts to combat the crisis -- but most of the ideas weren't new and there were few specifics about how to pay for them.  Before the emergency declaration, Trump assembled an opioid commission to explore the best tactics the federal government could deploy to stem the tide of overdoses.  A final report was released in November, with some bipartisan recommendations, such as removing barriers to treatment and increasing access to drug courts that divert people struggling with addiction from jail.

But even those who worked on the commission's 138-page report have said that the administration has no plan to systematically address the epidemic.... There have been some encouraging signs, however, that the federal government is serious about addressing the opioid epidemic. The Trump administration has continued an Obama-era policy of approving waivers to let their Medicaid programs pay for addiction and mental health treatment in facilities larger than 16 beds -- which is normally prohibited under federal law. So far, the Trump administration has approved waivers from Indiana, New Jersey, Utah, Virginia and West Virginia. Five states -- Arizona, Illinois, Kentucky, Michigan and Wisconsin -- have pending waivers still.

And last month, Congress passed a federal spending bill that includes a $3.3 billion increase in funding for the opioid crisis. The $3.3 billion will go toward prevention, treatment and law enforcement activities across the Centers for Disease Control and Prevention (CDC), Substance Abuse and Mental Health Services Administration (SAMHSA), Department of Veterans Affairs and other entities that help state and local governments. Many health policy experts, however, argue that it still isn't enough to make a meaningful impact.  To put that in context, the federal budget for HIV care in 2017 was $32 billion.

The other part of the title of this post is a reminder that it was a full five weeks ago that AG Jeff Sessions issued a "Memo to U.S. Attorneys on the Use of Capital Punishment in Drug-Related Prosecutions" (full text here) which "strongly encourage[d] federal prosecutors" bringing federal drug prosecutions to "include the pursuit of capital punishment in appropriate cases."  I keep wondering if and when we will see that memo having any real tangible impact.

Roughly speaking, federal prosecutors bring about 400 federal drug prosecutions per week, meaning that there have likely been around 2000 federal drug prosecutions since the AG issued his capital punishment memo.  Even if AG Sessions means by "strongly" encouraging capital prosecutions that only the very worst 0.1% of federal drug defendants should be subject to federal capital charges, we should perhaps have expected to have seen by now two federal drug defendants being subject to a federal capital indictment.  (I am inclined here to recall frequent statements by groups like NAUSAA that that federal system is focused only on "the most dangerous and serious drug traffickers." If this is true, perhaps AG Sessions thinks 1% or even 10% of federal drug prosecutions should include capital charges.  If so, we ought to already be seeing dozens of federal capital prosecutions by now.)

As of this writing, I am not aware of a single new capital drug case since the AG's March memo, though it is certainly possible that some are in the works and that is only a matter of time before we see a lot more federal capital cases.  I know I will be continuing to wonder if, when and how the capital prosecutions that AG Sessions has strongly encouraged will become a reality.

April 25, 2018 in Death Penalty Reforms, Drug Offense Sentencing | Permalink | Comments (5)

New Jersey Supreme Court finds unconstitutional requiring juveniles to be subject to lifetime sex-offender registration

The Supreme Court of New Jersey yesterday handed down a lengthy unanimous opinion in Interest of C.K., No. A-15-16 (N.J. April 24, 2018) (available here) declaring that the state's sex-offender registry law is unconstitutional as applied to some juvenile offenders. Here is how the opinion begins:

Juveniles adjudicated delinquent of certain sex offenses are barred for life from seeking relief from the registration and community notification provisions of Megan’s Law. N.J.S.A. 2C:7-1 to -11, -19; N.J.S.A. 2C:7-2(g).  That categorical lifetime bar cannot be lifted, even when the juvenile becomes an adult and poses no public safety risk, is fully rehabilitated, and is a fully productive member of society.  Defendant C.K. was adjudicated delinquent for sex offenses committed more than two decades ago and now challenges the constitutionality of N.J.S.A. 2C:7-2(g)’s permanent lifetime registration and notification requirements as applied to juveniles.

Subsection (f) of N.J.S.A. 2C:7-2 subjects all sex offenders, including juveniles, to presumptive lifetime registration and notification requirements.  Unlike subsection (g), however, subsection (f) allows a registrant to seek relief from those requirements fifteen years after his juvenile adjudication, provided he has been offense-free and is “not likely to pose a threat to the safety of others.”  Subsection (g) imposes an irrebuttable presumption that juveniles, such as defendant, are irredeemable, even when they no longer pose a public safety risk and are fully rehabilitated.

The record in this case reveals what is commonly known about juveniles -- that their emotional, mental, and judgmental capacities are still developing and that their immaturity makes them more susceptible to act impulsively and rashly without consideration of the long-term consequences of their conduct.  See State v. Zuber, 227 N.J. 422 (2017).  The record also supports the conclusion that juveniles adjudicated delinquent of committing sex offenses, such as C.K., who have been offense-free for many years and assessed not likely to reoffend, pose little risk to the public. Indeed, categorical lifetime notification and registration requirements may impede a juvenile’s rehabilitative efforts and stunt his ability to become a healthy and integrated adult member of society.

We conclude that subsection (g)’s lifetime registration and notification requirements as applied to juveniles violate the substantive due process guarantee of Article I, Paragraph 1 of the New Jersey Constitution. Permanently barring juveniles who have committed certain sex offenses from petitioning for relief from the Megan’s Law requirements bears no rational relationship to a legitimate governmental objective.  In the absence of subsection (g), N.J.S.A. 2C:7-2(f) provides the original safeguard incorporated into Megan’s Law: no juvenile adjudicated delinquent will be released from his registration and notification requirements unless a Superior Court judge is persuaded that he has been offense-free and does not likely pose a societal risk after a fifteen-year look-back period.

Defendant may apply for termination from the Megan’s Law requirements fifteen years from the date of his juvenile adjudication, and be relieved of those requirements provided he meets the standards set forth in N.J.S.A. 2C:7-2(f).

April 25, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

After four high-profile clemencies, Prez Trump issues a bunch of denials

As reported in this USA Today piece, "President Trump has denied clemency for 180 people who had applied for pardons and commutations through formal Justice Department channels — even as he's short-circuited that process to pardon political allies."  Here is more (with one line emphasized):

The denials, decided last week, represent the first movements in the Justice Department's clemency caseload since Trump was inaugurated last year, according to the Office of the Pardon Attorney.  Among those denied clemency: Anthony Calabrese, a 57-year-old reputed mob hit man from Chicago convicted of three robberies and sentenced to 62 years in prison. He had requested compassionate release after being diagnosed with terminal cancer.

One White House official, speaking on condition of anonymity because officials were not authorized to comment publicly, said the denials were "routine" and that no accompanying clemency grants were expected in the near future.  The official said the cases did not meet the president's "high standards" for clemency.

That kind of clemency housekeeping is common.  The last three presidents — Bill Clinton, George W. Bush and Barack Obama — all denied hundreds of applications in their first two years before granting their very first pardons and commutations....

Last week's denials included 82 applications for pardons and 98 for commutations. Pardons represent a full legal forgiveness for a conviction, restoring civil rights taken away by a felony conviction.  Commutations shorten a prison sentence but leave the other consequences intact.

Based on Prez Trump's grants of clemency to date (all linked below), it seems that his "high standards" for clemency are closely linked to his political interests and affinities.  I suppose I should be pleased that Prez Trump and his team are finally starting to address the many thousands of pending clemency petitions, but I am troubled (though not surprised) to learn that no "regular" defendants have yet been thought worthy of the President's grace.

Recent related posts:

April 25, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (0)

April 24, 2018

"All Bathwater, No Baby: Expressive Theories of Punishment and the Death Penalty"

The title of this post is the title of this notable new paper authored by Susan Bandes now available via SSRN. Here is its abstract:

In Courting Death: The Supreme Court and Capital Punishment, Carol Steiker and Jordan Steiker offer a richly textured and fair-minded account of the fraught relationship between capital punishment and the United States Supreme Court.  As the book convincingly illustrates, capital punishment doctrine often serves as little more than window dressing, providing a false sense of coherence and legal legitimacy to prop up a regime that is both arbitrary and discriminatory. Although the book is clear-eyed and appropriately unsentimental, the authors hold out hope that a principled capital jurisprudence is possible.  They seek to distinguish the factors that ought to animate the Court’s jurisprudence from those that are illegitimate.

This review of Courting Death proceeds in three parts.  Part I describes the book’s main arguments. Part II explores the limits of employing legal doctrinal tools to shed light on the forces that shape and sustain capital punishment in the United States. In particular, it explores the implicit question underlying the Steikers’ critique: is there a path toward a principled capital jurisprudence?  Part III focuses on so-called “expressive” theories of punishment, which emphasize the symbolic, communicative importance of the death penalty. It argues that expressive punishment theory has become a grab bag of poorly differentiated concepts that too often obfuscate rather than illuminate the death penalty debate.  It then returns to the topic of Part II, exploring the difficulty of distinguishing “off-limits” or “extra-legal” political and emotional influences from appropriate legal influences on the death penalty debate.  The review concludes that once all these arguably illegitimate influences are stripped away, a coherent, principled doctrinal capital punishment doctrine is not possible.

April 24, 2018 in Death Penalty Reforms, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Meek Mill pledges to "shine a light" on criminal justice issues after Pennsylvania Supreme Court orders his release on bail

As reported in prior posts here and here from last November, rapper Meek Mill became the focus point for complaints about an unfair criminal justice system in Philadelphia after he received a seemingly extreme 2-4 year prison sentence for violating his probation from a 2008 gun and drug case.  Today, as reported in this USA Today article, he got some relief thanks to this short order from the Supreme Court of Pennsylvania:

Meek Mill is finally free. The rapper's lawyer, Joseph Tacopina, confirmed to USA TODAY that the rapper was freed on bail Tuesday after Pennsylvania's Supreme Court ordered a judge to release him while he appeals decade-old gun and drug convictions. "We are thrilled that the Pennsylvania Supreme Court has directed Judge Brinkley to immediately issue an order releasing Meek on bail," said Tacopina in a statement. "As we have said all along, Meek was unjustly convicted and should not have spent a single day in jail."

Mill immediately vowed via social media to use his spotlight to "shine a light" on how America's criminal justice systems treat people of color.

The Philadelphia-born rapper (real name is Robert Rihmeek Williams) has been fighting for release from jail for the past five months. Mill was sentenced in November to two to four years in prison for violating probation on a roughly decade-old gun and drug case (a ruling opposed at the time by the Philadelphia district attorney and Meek's probation officer).

But in March, the most damning piece of evidence came to light when Philly District Attorney Larry Krasner admitted that Mill may have been unjustly convicted thanks to a cop who lied at his 2008 trial. Krasner said he would not oppose Mill's immediate release on bail pending appeal of his case. Because hundreds of other convictions have already been reversed based on information provided by a whistleblowing cop, "there is a strong showing of likelihood of (Mill's) conviction being reversed (in whole or in part)," Krasner said in a statement at the time. "Therefore the Commonwealth is unopposed to (Mill's) petition for bail."

Lawyers for Mill have accused Judge Genece Brinkley, who sentenced Mill 10 years ago and has subsequently tacked on 14 years of probation, of having "a personal vendetta" against him. An investigation by Rolling Stone said Brinkley "repeatedly torched his rap career each time he was poised for mega-stardom."

Since last fall, Mill and his lawyers have been trying and failing to persuade Brinkley to release him on bail while his case is appealed. On Tuesday, Mill's lawyer said the legal team was "also pleased that the Pennsylvania Supreme Court has noted that Judge Brinkley may opt to remove herself from presiding over any further proceedings in Meek’s case in the interests of justice."

The district attorney's office also weighed in on Tuesday. "As our office has made clear in recent court filings, the Pa. Supreme Court’s decision on Meek Mill being released on bail is consistent with the position of the Philadelphia District Attorney’s Office," Ben Waxman, spokesperson for the DA, said in a statement to USA TODAY on Tuesday. Waxman noted that "just last week, our office agreed to withdraw prosecution from three lesser-known individuals whose cases were also tainted by potential police credibility issues by following the same procedures and analysis."...

A national movement has surged in Mill's defense, along with a hashtag: #FreeMeekMill. While in prison, Mill has received high-profile visits from New England Patriots owner Robert Kraft, Philadelphia 76ers co-owner Michael Rubin, Colin Kaepernick and Philadelphia's mayor. Kraft has subsequently called for reform of the criminal justice system.

On Tuesday, Mill tweeted his thanks, calling the past five months "a nightmare."... Mill continued: "To the Philly District Attorney’s office, I’m grateful for your commitment to justice. I understand that many people of color across the country don’t have that luxury and I plan to use my platform to shine a light on those issues. In the meantime, I plan to work closely with my legal team to overturn this unwarranted conviction and look forward to reuniting with my family and resuming my music career."

It is not uncommon for high-profile persons caught up in the criminal justice system to pledge a commitment to reform efforts upon their release, but it is a bit more uncommon to see these persons effectively follow-up on such a pledge (I am thinking of Martha Stewart here). In this case, I have an inkling Meek Mill will in fact be an important high-profile advocate for criminal justice reform.

Prior related posts:

April 24, 2018 in Celebrity sentencings, Examples of "over-punishment", Who Sentences? | Permalink | Comments (2)

The challenge of modern federal sentencing: "there are 15 distinct factors in 3553(a)"

The line in quotes in the title of this post is a phrase that was uttered yesterday by Deputy Attorney General Rod Rosenstein during Supreme Court oral argument in Chavez-Meza v. United States. (The full argument transcript is available at this link.)  Based on my review of the transcript, I think DAG Rosenstein did himself proud before SCOTUS, and I am especially proud of his accounting of the many factors in 18 USC § 3553(a).

Specifically, I am keen on this accounting of the 3553(a) factors because I have long preached that there are four distinct sentence factors packaged in 18 USC § 3553(a)(1), which calls upon courts to consider "the nature and circumstances of the offense and the history and characteristics of the defendant."  Often when talking to students about a sentencing problem I give, I stress that plain text of § 3553(a)(1) indicates Congress wants judges to consider distinctly an offense's nature (drugs or fraud) as well as its circumstances (lengthy or limited); to consider distinctly a defendant's history (abused or educated) as well as his characteristics (remorseful or brazen).  I think DAG Rosenstein's statement that "there are 15 distinct factors in 3553(a)" is built upon counting § 3553(a)(1) as itself having four factors.

Moving beyond my own quirky affinity for § 3553(a)(1), I wonder if readers can readily think of any other area of federal law that calls upon judges to consider "15 distinct factors" as part of their decision-making.  I do realize that many capital sentencing statutes call upon juries and/or judges to balance or weigh even more factors that appear in 18 USC § 3553(a).  But I would be especially eager to hear from folks about other areas of law that but a comparable factor burden on federal judges.

April 24, 2018 in Booker in district courts, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (4)

"The Prison Industrial Complex: Mapping Private Sector Players"

The title of this post is the title of this new report from the Corrections Accountability Project at the Urban Justice Center.  Here is its introduction:

In 1983, CoreCivic received its first contract to operate a correctional facility, marking the birth of the private prison industry.  The following year, The GEO Group also entered the private prison market.  Over the next 35 years, as the U.S. carceral population mounted from roughly 660,000 to more than 2.2 million, the competitors would grow to own and operate roughly 130 correctional facilities with over 150,000 beds.

By 2017, CoreCivic and The GEO Group were generating combined annual revenues of $4 billion on the more than 45 million individual nights that people spend incarcerated in their correctional facilities every year.

But CoreCivic and The GEO Group, the most recognized, discussed, and targeted for-profit entities operating in the prison industrial complex, are far from the only companies that recognized an opportunity in the prison boom that started in the1970s. In fact, they were not even the first.

Today, more than half of the $80 billion spent on incarceration annually in the U.S. is used to pay the thousands of vendors that serve the criminal legal system. They are healthcare providers, food suppliers, commissary merchants, and more. Focused on their bottom line and advantaged by an obscure and often monopolistic environment, the private, for-profit corporations that operate in the prison industrial complex raise particular concerns for the incarcerated population, vulnerable to corporate abuse.

This report exposes over 3,100 corporations that profit from the devastating mass incarceration of our nation’s marginalized communities. It serves as the largest lens into the prison industrial complex ever published. While this report still far from covers all the private sector companies in this space, it captures all the major players.

At the Corrections Accountability Project, our hope is that advocates, litigators, journalists, investors, and the public will use the report to further understand the expansive nature of the prison industrial complex and familiarize themselves with its players. This report should serve as a resource in the fight against the commercialization of our criminal legal system.

April 24, 2018 in Prisons and prisoners, Scope of Imprisonment, Who Sentences? | Permalink | Comments (1)

April 23, 2018

"Leveraging Marijuana Reform to Enhance Expungement Practices"

The title of this post is the title of this new paper I have written for a forthcoming issue of the Federal Sentencing Reporter which is now available via SSRN.  Here is the abstract:

States reforming marijuana laws should be particularly concerned with remedying the past inequities and burdens of mass criminalization.  State marijuana reforms should not only offer robust retroactive ameliorative relief opportunities for prior marijuana offenses, but also dedicate resources generated by marijuana reform to create and fund new institutions to assess and serve the needs of a broad array of offenders looking to remedy the collateral consequences of prior involvement in the criminal justice system.  So far, California stands out among reform states for coupling repeal of marijuana prohibition with robust efforts to enable and ensure the erasure of past marijuana convictions.  In addition to encouraging marijuana reform states to follow California’s lead in enacting broad ameliorative legislation, this essay urges policy makers and reform advocates to see the value of linking and leveraging the commitments and spirit of modern marijuana reform and expungement movements.

Part II begins with a brief review of the history of marijuana prohibition giving particular attention to social and racial dynamics integral to prohibition, its enforcement and now its reform.  Part III turns to recent reform activities focused on mitigating the punitive collateral consequences of a criminal conviction with a focus on the (mostly limited) efforts of marijuana reform states to foster the erasure of marijuana convictions.  Part IV sketches a novel proposal for connecting modern marijuana reform and expungement movements.   This part suggest a new criminal justice institution, a Commission on Justice Restoration, to be funded by the taxes, fees and other revenues generated by marijuana reforms and to be tasked with proactively working on policies and practices designed to minimize and ameliorate undue collateral consequences for people with criminal convictions.

Cross-posted at Marijuana Law, Policy & Reform.

April 23, 2018 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Reentry and community supervision, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Law enforcement reform group urges Congress to tackle sentencing reform along with prison reforms

As reported in this press release, "over 60 police chiefs and prosecutors — all members of Law Enforcement Leaders to Reduce Crime and Incarceration — sent a letter to the Senate and House leadership calling on Congress to pass sentencing reform, as a part of the White House’s commitment to reduce recidivism." Here is more from the release:

The letter comes in advance of an expected House Judiciary Committee vote this week on a prison reform bill, which is opposed by both progressive groups and law enforcement alike because it does not address sentencing.  Just last week, Law Enforcement Leaders encouraged members of Congress to instead take action on Senate legislation that includes both sentencing and prison reform, in a series of meetings that included Jared Kushner, Law Enforcement Leaders member Timothy Heaphy, and other bi-partisan advocates.

“Improving prison conditions and reentry services, on their own, will not adequately solve our high rates of incarceration and recidivism,” the letter reads.  “Legislation like the Prison Reform and Redemption Act (H.R.3356) and the CORRECTIONS Act (S. 1994) are useful efforts to improve the lives of those in prison. But such efforts should be coupled with efforts to reduce unnecessary incarceration, as it is in the Sentencing Reform and Corrections Act... As law enforcement leaders, we want to make clear where we stand: Not only is passing federal mandatory minimum and reentry reform necessary to reduce incarceration, it is also necessary to help police and prosecutors continue to keep crime at its historic lows across the country. We believe the Sentencing Reform and Corrections Act will accomplish this goal and respectfully urge Congress to swiftly pass it.”

The full text of the letter can be found at this link, and here are a few passages:

Legislation like the Prison Reform and Redemption Act (H.R.3356) and the CORRECTIONS Act (S. 1994) are useful efforts to improve the lives of those in prison. But such efforts should be coupled with efforts to reduce unnecessary incarceration, as it is in the Sentencing Reform and Corrections Act....

Lawmakers and Presidents of both parties have taken great strides to reform prison systems and develop more effective reentry programs. We are grateful to the White House for allocating resources towards reducing recidivism, through the creation of the Federal Interagency Council on Crime Prevention and Improving Reentry, and for its support of similar legislative efforts. This concerted effort acknowledges the importance of setting an example of criminal justice reform on the federal level, and the impact federal policies have on state and local criminal justice practice.

However, improving prison conditions and reentry services, on their own, will not adequately solve our high rates of incarceration and recidivism.  It will not stop the overuse of incarceration for minor drug-related and low-level, non-violent offenses. To have meaningful reform, we must also address our sentencing laws.  As those fighting crime on the frontlines, we know from firsthand experience that it is ineffective to exhaust resources on reducing the rate of recidivism if there is no accompanying effort to reduce the rate at which people unnecessarily enter prison in the first place.  For this reason, 67 of our members wrote in support of a previous version of the Sentencing Reform and Corrections Act in early 2016.

We ask the Senate, House, and White House to work together to pass the Sentencing Reform and Corrections Act in addition to any reentry legislation.  The Act would shorten unnecessarily long sentences for lower-level offenders, a solution that has been shown in other parts of the country to successfully reduce crime and incarceration together.

April 23, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Who Sentences? | Permalink | Comments (0)

A recent accounting of "Racial Disparities in the United States Criminal Justice System"

Download (12)I just came across this notable recent publication which describes itself as a "Report of The Sentencing Project to the United Nations Special Rapporteur on Contemporary Forms of Racism, Racial Discrimination, Xenophobia, and Related Intolerance Regarding Racial Disparities in the United States Criminal Justice System."  The relatively short report's introduction provides a flavor for its coverage, and here are excerpts from the introduction:

African Americans are more likely than white Americans to be arrested; once arrested, they are more likely to be convicted; and once convicted, and they are more likely to experience lengthy prison sentences.  African-American adults are 5.9 times as likely to be incarcerated than whites and Hispanics are 3.1 times as likely. As of 2001, one of every three black boys born in that year could expect to go to prison in his lifetime, as could one of every six Latinos — compared to one of every seventeen white boys.  Racial and ethnic disparities among women are less substantial than among men but remain prevalent.

The source of such disparities is deeper and more systemic than explicit racial discrimination.  The United States in effect operates two distinct criminal justice systems: one for wealthy people and another for poor people and people of color.  The wealthy can access a vigorous adversary system replete with constitutional protections for defendants.  Yet the experiences of poor and minority defendants within the criminal justice system often differ substantially from that model due to a number of factors, each of which contributes to the overrepresentation of such individuals in the system.....

By creating and perpetuating policies that allow such racial disparities to exist in its criminal justice system, the United States is in violation of its obligations under Article 2 and Article 26 of the International Covenant on Civil and Political Rights to ensure that all its residents — regardless of race — are treated equally under the law.  The Sentencing Project notes that the United Nations Special Rapporteur is working to consult with U.S. civil society organizations on contemporary forms of racism, racial discrimination, and related intolerance.  We welcome this opportunity to provide the UN Special Rapporteur with an accurate assessment of racial disparity in the U.S. criminal justice system....

This report chronicles the racial disparity that permeates every stage of the United States criminal justice system, from arrest to trial to sentencing to post prison experiences.  In particular, the report highlights research findings that address rates of racial disparity and their underlying causes throughout the criminal justice system.  The report concludes by offering recommendations on ways that federal, state, and local officials in the United States can work to eliminate racial disparity in the criminal justice system and uphold its obligations under the Covenant.

April 23, 2018 in Data on sentencing, Race, Class, and Gender | Permalink | Comments (2)

SCOTUS grants cert on yet another set of ACCA cases, this time to explore when burglary qualifies as "burglary"

Though I am always excited when the Supreme Court takes up sentencing issues, I must admit growing somewhat annoyed that issues related to the application of the Armed Career Criminal Act continued to be the focal point of so much SCOTUS activity. That patterns continues today via this new SCOTUS order list in which cert was granted in these two cases (which were consolidated for one hour of argument):

United States v. Stitt, 17-765 (from the Sixth Circuit)

Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

United States v. Sims, 17-766 (from the Eighth Circuit)

Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).

Because the government was seeking cert on these cases after losing in big Circuit rulings and because there is a split in the circuits, I am not at all surprised by these grants. But I remain troubled that so many other issues that are so very consequential to so many more cases — e.g., the functioning of reasonableness review or the proper application of Graham and Miller — have been unable to get the Justices' attention while nearly a dozen ACCA cases have been taken up by SCOUS in the last decade.

April 23, 2018 in Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

April 22, 2018

SCOTUS to hear seemingly small sentencing case made slightly bigger by Government's advocate

On Monday afterneed the Supreme Court will hear oral argument in Chavez-Meza v. United States.  Here is the issue presented in the case (via SCOTUSblog):

Whether, when a district court decides not to grant a proportional sentence reduction under 18 U.S.C. § 3582(c)(2), it must provide some explanation for its decision when the reasons are not otherwise apparent from the record, as the U.S. Courts of Appeals for the 6th, 8th, 9th and 11th Circuits have held, or whether it can issue its decision without any explanation so long as it is issued on a preprinted form order containing the boilerplate language providing that the court has “tak[en] into account the policy statement set forth in 18 U.S.S.G. § 1B1.10 and the sentencing factors set forth in 18 U.S.C. § 3553(a), to the extent that they are applicable,” as the U.S. Courts of Appeals for the 4th, 5th and 10th Circuits have held.

As this statement of the issue reveals, the Supreme Court likely was inclined to add this case to its docket in order to resolve a circuit split over just want amount of explanation is required when judges grant sentence modifications under 18 U.S.C. § 3582(c)(2).  But, it appears that only six months of a nine-year prison term is at issue in this case and, as Susan Klein explains via her SCOTUSblog argument preview, it seems unlikely that even a win for the defendant would be all that consequential for others:

I predict that whatever the Supreme Court does in this case will have little effect beyond amending future sentencing modification forms. A reversal would likely result in little more than a “ritualistic incantation” by the judge that she considered a specific Section 3553(a) factor, or that she considered a specific policy statement issued by the sentencing commission.

Of course, SCOTUS could always decide to use this case to talk up the importance of sentencing explanations, though I doubt even an opinion written with great ambition in this matter would have too much of an impact.  And still, though seemingly a small case, Chavez-Meza is getting an extra bit of attention because the Deputy Attorney General will be arguing the case on behalf of the feds.  This new Wall Street Journal article, headlined "Rosenstein Takes a Pause — to Argue a Case Before the Supreme Court," looks at this angle of the case.  (Last but not least, hard-core Breaking Bad fans might get a weird kick out of the fact that Adaucto Chavez-Meza "distributed methamphetamine in Albuquerque, New Mexico," though a bit later than when Walter White was supposedly cooking up the Blue Sky variety in that part of the world.)

April 22, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (2)

"Addicted to Incarceration: A Federal Judge Reveals Shocking Truths About Federal Sentencing and Fleeting Hopes for Reform"

The title of this post is the title of this notable new article authored by Mark W. Bennett just posted to SSRN.  Here is its abstract:

A federal district judge who has sentenced more than 4,000 offenders in multiple districts shares his experience and criticisms of current federal sentencing.  The article begins with a history of federal sentencing, then focuses on problems related to mandatory minimum sentencing and application of 21 U.S.C. § 851 prior conviction enhancements in federal drug cases. The next section exposes the myth of empirical federal sentencing guidelines.  The final section offers eight specific suggestions for federal sentencing reform.

April 22, 2018 in Federal Sentencing Guidelines, Who Sentences? | Permalink | Comments (4)