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May 5, 2018

Scrutinizing sex offender civil commitment schemes

Investigative reporter Barbara Koeppel has this extensive article in The Washington Spectator under the full headline "Sex Crimes and Criminal Justice: Formerly incarcerated sex offenders say civil commitment programs deny proper rehabilitation."  I recommend the piece in full, and here are excerpts from the start and end of the article:

Since the 1990s, 20 states and the District of Columbia have passed laws that direct the attorneys general in these jurisdictions to appoint professionals to evaluate whether sex offenders who have served their time have a mental abnormality or illness that would make them likely to re-offend.  If the decision is yes, the men are re-incarcerated—not for past crimes but for ones they might yet commit — in prisonlike facilities with barbed wire, cells, guards, and watch towers. While institutionalized, they receive therapy that, theoretically, will help them control their sexual impulses.

The practice is known as civil commitment.... Supporters of the process argue it protects the public.  Critics, however, such as Dr. Richard Wollert, a psychologist at Simon Fraser University in British Columbia, disagree. He says the facts simply don’t support it: “I’ve never seen data that show the 20 states with civil commitment laws have lower rates of sex offenses or re-offenses than the 30 states that don’t.”  Similarly, Dr. Fred Berlin, a psychologist who runs sex offender outpatient programs at Johns Hopkins Hospital, says, “They’re really a ruse to not put the men back in society.” The sex offenses range from obscene phone calls, lewd behavior in public, and sex with underage partners, all the way up to rape and murder.

Organizations and professionals familiar with the abuses of civil commitment are its harshest critics.  The American Psychiatric Association told its members to “vigorously oppose” it. Two judges, from Minnesota and Missouri, found the laws “punitive and unconstitutional.”  Tapatha Strickler, a clinical psychologist who worked at the civil commitment facility in Larned, Kansas, calls it “an abomination.”  But the practice persists at huge cost to individuals and taxpayers....

The men I interviewed frankly admitted to their offenses, but they asked to be treated as others who commit crimes and not be re-incarcerated after they serve their prison sentences.  Also, since most state and federal prisons run mental health therapy programs, the men said they’d already participated in them throughout their original sentences — which could be 20 or 25 years — yet were made to start from scratch in the civil commitment facilities.

Today, about 5,400 men are held in civil commitment. [Lawyer Donald] Anderson told me, “It’s hard to wrap my head around it.  I sympathize greatly with the men’s victims and their families because I have two daughters and I understand people’s fears.  But I’ve dealt with these guys for years and I’m very fond of some of them.  Their look of being utterly beaten, knowing they’ll be here until they die, is very sad.  The program is inhumane.”

May 5, 2018 in Criminal Sentences Alternatives, Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Sex Offender Sentencing | Permalink | Comments (16)

"A Rational Approach to the Role of Publicity and Condemnation in the Sentencing of Offenders"

The title of this post is the title of this interesting article recently posted to SSRN authored by Mirko Bagaric and Peter Isham. Here is the abstract:

The punishment imposed on criminal offenders by courts often does not exhaust the hardship they experience.  There are a number of collateral forms of punishment that many offenders are subjected to as a result of their offending.  Some of these deprivations are institutional, such as being dismissed from employment or being disqualified to vote. Other hardships are less predictable and harder to quantify.  Public scorn, often directed towards high profile offenders, such as O.J. Simpson and Anthony Weiner, can be the cause of considerable additional suffering to offenders.  It can engender feelings of shame, embarrassment and humiliation.  At the same time, the high profile nature of the cases provides courts with an opportunity to demonstrate to the wider community the consequences of violating the law.

There is no established jurisprudence regarding the role that public criticism of offenders should have in sentencing decisions.  Some courts take the view that it should increase the penalty imposed on high profile offenders in order to deter others from committing similar offences.  By contrast, it has also been held that public condemnation should reduce penalties because the offender has already suffered as a result of the public condemnation.  On other occasions, courts have held public condemnation is irrelevant to sentencing.  The issue is increasingly important because the internet and social media have massively increased the amount of publicity that many criminal offenders receive. Simultaneously, this is an under-researched area of the law.

In this Article, we develop a coherent jurisprudential and evidence-based solution to the manner in which public opprobrium should be dealt with in sentencing decisions.  We argue that sentencing courts should neither increase nor decrease penalties in circumstances where cases have attracted wide-ranging media attention.  The hardship stemming from public condemnation is impossible to quantify and in fact causes no tangible suffering to some offenders.  Thus, the extent of publicity that an offender receives for committing a crime should be an irrelevant consideration with respect to the choice of punishment. In proposing this reform, we carefully analyze the jurisprudence in the United States.  We also consider the position in Australia, where the issue has been considered at some length.

May 5, 2018 in Celebrity sentencings, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9)

May 4, 2018

Georgia execution back on; stay lifted with clemency denied by state parole board

As reported in this prior post, earlier this week the Georgia Board of Pardons and Paroles issued an unusual stay on the even of a scheduled execution.  But now, as reported in this article headlined "Murdered Georgia man’s father thanks God inmate’s execution is back on," it appears that the execution will go forward only 48 hours after it had been originally scheduled. Here are the basics:  

Not long after halting the scheduled execution of Georgia inmate Robert Earl Butts Jr., the State Board of Pardons and Paroles lifted its own stay, putting the death penalty wheels back in motion.  Butts is now scheduled to die by lethal injection Friday at 7 p.m.  Before the parole board issued a stay Wednesday night, Butts was expected to get the needle Thursday evening for the 1996 murder of off-duty correctional officer Donovan Corey Parks.

“Oh Lord,” said Freddie Parks, the victim’s father. “I’m nervous. I’m really happy to hear the good news. I’ve been going through it 22 years. Nobody knows what I’ve been going through but me and the Lord. And I’ve been really talking to Him.” Just hours earlier, Parks, a 75-year-old retired prison guard, was angry and despondent at the same time over the stay of execution. “It wasn’t fair the way it came out, putting it off. Another blow,” he said at the time.

When the board issued its 90-day stay Wednesday night, its spokesman said the five-member panel needed time to review the “considerable amount of additional information” it received in a meeting with Butts’ attorneys, as well as in a subsequent session with those who wanted to see the execution carried out.  “Knowing the gravity of its decisions, the board extended deliberations in order to consider supplemental information submitted during the meeting that members had not previously reviewed,” spokesman Steve Hayes said. “Completing that process, the board voted to deny clemency.”

While the parole board has the sole constitutional authority to grant clemency, the courts have the ultimate power to decide whether to spare an inmate’s life. So Butts’ attorneys continued to file appeals on Thursday.

If Butts, 40, is executed, he will be the second man Georgia has put to death this year.

Prior related post:

UPDATE: This local article reports on the completed execution:

Robert Earl Butts Jr. was put to death by lethal injection Friday at the Georgia Diagnostic and Classification Prison. He was pronounced dead at 9:58 p.m. When asked for a final statement, Butts replied, “I’ve been drinking caffeine all day.”  Then he declined an offer for a prayer.

Butts kept his eyes closed from the moment he was placed on the gurney. He never looked at the father and brother of his victim, sitting on just the other side of the window that separates the witness area from the execution chamber.  Nor did he look at Baldwin County Sheriff Bill Massee or Putnam County Sheriff Howard Sills, who was chief deputy in Baldwin County at the time of the murder.

Two minutes after the pentobarbital began to flow into the vein in his arm, Butts mumbled, “It burns, man.” After that, he yawned and took a series of deep breaths until there was no movement about a minute before he was pronounced dead.

Butts, 40, was sentenced to death for the March 1996 murder of 25-year-old Donovan Corey Parks in Milledgeville. Butts and his co-defendant, Marion Wilson Jr., asked Parks — an off-duty correctional officer — for a ride from a local Walmart store, then minutes later ordered him from the car and shot him in the head. Butts was 18 at the time.

May 4, 2018 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences? | Permalink | Comments (17)

Seeking reader input for possible blog redesigns/improvements

I have the great fortune of getting some terrific help from some terrific students exploring, in their words, a "number of different options to improve the layout and interface of the blog platform."  In furtherance of this work, these students have designed an easy survey for readers to gain insights into readership and blog users.

Here is a link to the survey, which can be completed in about a minute.

It would be very helpful if readers will take a minute to fill out this survey.  Many, many thanks!

UPDATE: Scrolling now to the bottom of the comments on this post will reveal that David Behar has agreed to not comment here for 30 days  to see if his absence can allow the comment discussion to grow in quality and quantity.  So, in addition to urging readers to take the survey linked above, I think some might find it especially useful to start commenting more on other posts.

May 4, 2018 in On blogging | Permalink | Comments (62)

"Judicial Appraisals of Risk Assessment in Sentencing"

The title of this post is the title of this notable new paper now available via SSRN authored by John Monahan, Anne Metz and Brandon Garrett.  Here is the abstract:

The assessment of an offender’s risk of recidivism is emerging as a key consideration in sentencing policy in many American jurisdictions.  However, little information is available on how actual sentencing judges view this development.  This study surveys the views of a population sample of judges in Virginia, the state that has gone farther than any other in legislatively mandating risk assessment for certain drug and property offenders. Results indicate that a strong majority of judges endorse the principle that sentencing eligible offenders should include a consideration of recidivism risk.  However, a strong majority also report the availability of alternatives to imprisonment in their jurisdictions to be inadequate at best.  Finally, most judges oppose the adoption of a policy requiring them to provide a written reason for declining to impose alternative interventions on “low risk” offenders.

May 4, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (1)

May 3, 2018

Oregon Supreme Court orders resentencing upon finding violation of crime victim's right to be heard at sentencing

The Supreme Court of Oregon handed down an interesting unanimous opinion yesterday concerning the rights of a victim at sentencing under the Oregon Constitution in Oregon v. Ball, 362 Or 807 (Or. May 2, 2018) (available here). Here is how the opinion gets started:

The Oregon Constitution provides that the victim of a crime has the right “to be heard at * ** sentencing.” Or Const, Art I, § 42(1)(a).  Appellant, who is a crime victim, filed a claim in the trial court, pursuant to ORS 147.515, alleging that the trial court violated her right to be heard when it sentenced the defendant who had committed crimes against her. Specifically, appellant alleged that the trial court violated her right to be heard when it interrupted her victim impact statement and when it later terminated the statement without warning or explanation.  The trial court denied the claim, and appellant brought this appeal, pursuant to ORS 147.535.

This case requires us to determine the scope of a crime victim’s constitutional right to be heard during a sentencing hearing.  As explained below, we hold that a trial court has the authority and responsibility to conduct a sentencing hearing in an orderly and expeditious manner and may exclude certain statements by victims, including those that are irrelevant, unfairly prejudicial, or cumulative.  In addition, a trial court may limit a victim impact statement if the victim disregards the trial court’s appropriate instructions regarding the content or length of the statement.  We further hold that, in this case, the trial court’s interruptions of appellant’s statement, which were for the permissible purpose of having appellant focus on the charged crimes and her own experiences with the defendant, did not violate appellant’s right to be heard.  However, the trial court’s termination of appellant’s statement, when appellant was discussing a relevant topic that was not outside the limits imposed by the trial court, did violate appellant’s right to be heard.  Therefore, we reverse the trial court’s decision denying appellant’s claim, vacate defendant’s sentence, and remand the case to the trial court for a new sentencing hearing.

May 3, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Victims' Rights At Sentencing | Permalink | Comments (1)

An uncertain execution stay for uncertain reasons from the Georgia Board of Pardons and Paroles

As reported in this AP piece, "Georgia's parole board on Wednesday issued a decision halting the scheduled execution of a condemned inmate less than 24 hours before he was set to be put to death." Here is more about the decision that strikes me as full of uncertainties:

Robert Earl Butts Jr., 40, had been scheduled to die at 7 p.m. Thursday at the state prison in Jackson.  The State Board of Pardons and Paroles issued its decision just before 8:30 p.m. Wednesday to grant a stay of up to 90 days to give board members more time to consider the case.

"Due to the considerable amount of additional information the Board has received regarding the case and because the Board understands the importance and seriousness of its authority and responsibility, a stay was issued," board spokesman Steve Hayes said in an emailed statement....  The board could issue a final decision in the case during the stay period or at the end of the 90 days, Hayes said. 

Earlier Wednesday, the board held a closed-door hearing to listen to arguments for and against clemency for Butts.  A judge in the Superior Court of Baldwin County, where Butts was sentenced to death, last month issued the order for the execution to be carried out within a window starting Thursday and ending May 10.  If the board decides to lift the stay and denies clemency within that period, the execution could go forward without a new execution order.

The board also has the option to commute Butts' death sentence to a sentence of life in prison with or without the possibility of parole.

Butts and Marion Wilson Jr., 41, were convicted of murder and armed robbery in the March 1996 slaying of Donovan Corey Parks in central Georgia.  The two men asked Parks for a ride outside a Walmart store in Milledgeville and then ordered him out of the car and fatally shot him a short distance away.  Prosecutors have said Butts fired the fatal shot.

Authorities said Butts and Wilson were gang members who had gone looking for a victim when they drove Butts' car to the Walmart store.  Juries in separate trials found sufficient evidence to sentence both men to death because Parks was killed during the commission of an aggravating felony, armed robbery.  Wilson's case is still pending in the courts.

Butts' attorneys had asked the parole board in a clemency application filed last week to spare his life.... His attorneys insisted in the clemency application that Butts wasn't the shooter. A jailhouse witness, Horace May, who testified at trial that Butts confessed to being the shooter has now signed a sworn statement saying he made the story up out of sympathy for Wilson, whom he also met in jail....

Butts' attorneys also argued in his clemency petition that the single aggravating factor wouldn't warrant a death sentence in Georgia today.  They also ask the board to consider commuting Butts' sentence to life in prison after weighing abuse and neglect during Butts' childhood, the fact that he was just 18 when the crime occurred and that he has expressed remorse.

Butts' lawyers submitted a supplement to the clemency application to the board at the clemency hearing Wednesday. In that supplement, they argued that evidence in the case indicates that Wilson consistently had possession of the gun used to kill Parks. They also said there's no evidence that Butts was a member of a gang or that Parks' killing was gang-related. They wrote that the fact that the two tried to sell the car at a chop shop shows the crime was financially motivated.

Because Georgia sets a week for an execution time, it seem possible that the clemency petition will be denied in the coming days and the execution still goes forward. Thus, I find it uncertain whether this stay connotes a real likelihood that this defendant will avoid execution in the coming day. And that uncertainty is itself built on top of uncertainty about what the Georgia Board might be finding troubling in this case.  Notably, this local article provides this account of the last time this kind of stay was granted and its aftermath: "The last time the board stayed an execution was on April 17, 2012. Daniel Green was scheduled to be executed for a 1991 Taylor County murder. The board commuted Green’s sentence to life without parole on April 20, 2017."

May 3, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

"The Opioid Crisis and Federal Criminal Prosecution"

The title of this post is the title of this timely new article recently posted to SSRN authored by Rachel Rothberg and Kate Stith. Here are parts of its introduction:

An opioid crisis has swept the United States, ravaging communities across the country. In this Article we examine how federal law enforcement has responded to the crisis, both nationally and in a variety of locales.  We focus in depth, however, on federal investigators and prosecutors in the District of Connecticut, where the epidemic has hit hard....

What role can criminal law — and those who enforce it — play in combatting the opioid crisis?  The Connecticut U.S. Attorney’s Office’s shift in policy represents just one of many federal law enforcement reactions to alarming increases in opioid abuse and overdose deaths.  As opioid users’ tolerance increases and their access to prescription pills dwindle, they often transition to cheaper heroin, and then again to the more powerful synthetic opioids — sometimes unwittingly.  In general, law enforcement has struggled to keep up with the epidemic and the opioid market’s evolving characteristics.

In Part II of this Article we provide an overview of the nationwide, interagency efforts initiated by the Department of Justice in Washington, D.C.  In Part III, we briefly survey a number of strategies pursued by various U.S. Attorney’s Offices.  There are ninety-three U.S. Attorney’s Offices in the United States, and although all of them are part of the Department of Justice, each one is semi-autonomous in deciding which cases to investigate and prosecute.

Then, in Part IV, we narrow our focus to the federal prosecutorial efforts of the U.S. Attorney’s Office for the District of Connecticut.  We focus on the Office’s two main strategies— (1) charging the supplier of an illicit substance resulting in death with the crime of drug distribution; and (2) educating the community, particularly high-school students, about opioid usage — and discuss whether they have implications for the national role of federal law enforcement.  Lastly, in Part V, we address what more might be needed from federal law enforcement going forward to protect communities nationwide from the devastation wrought by opioid proliferation.

May 3, 2018 in Drug Offense Sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

May 2, 2018

Spotlighting modern tendency to invest more in prisons than in schools

Marc Schindler has this new commentary at The Hill headlined "Taxing our kids to fund prisons." Here are excerpts:

What do schools and prisons have in common? They each require budget allocations, which establish and demonstrate our priorities. And each affects crime prevention. But the commonalities end there. Studies show that while quality education decreases crime, imprisonment actually increases crime; the ROI on prison spending is a losing proposition. In 2015, the United States placed 40th in the world in math and 25th in science. We need well-educated kids to become productive and law-abiding adults, and an educated workforce to remain competitive in a global economy. This requires significant investment in education....

Research demonstrates that education is one of the soundest investments we can make, but we spend smaller portions of our budgets on it every year. If our kids and future actually are a priority, we need to reflect that in how we allocate limited resources.  Yet, policymakers repeatedly send scarce tax dollars to one of the least effective investments — prisons.

At a time when more than half of Americans are willing to pay higher taxes to support education, states are spending extraordinary amounts to lock people up, even though incarceration has been shown to make us less safe, and is significantly more expensive, than community-based alternatives.  And, in an ironic and troubling twist, Colorado legislators introduced a bill to jail striking teachers.  Not only would Colorado be spending money on incarceration at the expense of education, Colorado would be spending money on locking up teachers who are protesting this failed public policy approach.

In the past 30 years, we’ve seen a shift in the way we allocate resources — spending on education has grown painfully slowly, compared to spending on incarceration. Between 1980 and 2013, education budgets grew by 58 percent in West Virginia, 69 percent in Oklahoma, and 102 percent in Kentucky; during that time there was an explosive growth of spending on incarceration with an increase of 483 percent in West Virginia, 341 percent in Oklahoma and 259 percent in Kentucky. Other states showed similar patterns during those years: Colorado saw a growth of 103 percent for education but 513 percent for corrections; Arizona spent 188 percent more for education but 491 percent more for corrections.

The explosion in prison costs isn’t because we’ve improved the quality of life in prison, but because we’ve implemented policies that needlessly warehouse more people, particularly poor people of color.  We’ve seen that spending more to warehouse people doesn’t lead to safer communities — for example, Oklahoma and Louisiana have among the highest incarceration rates while still having comparatively high crime rates.

This spending disparity isn’t inevitable.  We have community-based programs that are significantly more effective, and cheaper, than incarcerating somebody.  We could free up millions of dollars to invest in teachers and schools if we reduce our reliance on incarceration by shifting to community-based alternatives.

We must do this if we are to effectively spend our limited tax dollars. It’s time we held elected officials accountable for decisions that waste money, make us less safe and penalize our kids with a second-rate education.  If we are serious about creating safer and healthier communities, where our kids can find good jobs and build healthy lives as responsible adults, we cannot keep spending our limited resources on incarceration at the expense of funding the best education in the world.  We need to get our priorities straight if we want to create a better, safer, future for ourselves and our kids.

May 2, 2018 in Scope of Imprisonment, Who Sentences? | Permalink | Comments (8)

Might Kim Kardashian West actually convince Prez Trump to grant clemency to federal drug offender?

Download (11)The question in the title of this post is not satire, but a serious inquiry based on this extended Mic report headlined "Kim Kardashian West has talked to White House about pardoning nonviolent drug offender."  Here are excerpts from the report:

Kim Kardashian West and President Donald Trump’s son-in-law and senior adviser Jared Kushner have spoken over the phone about a possible presidential pardon for Alice Marie Johnson, a 62-year-old great-grandmother serving a life sentence for a nonviolent drug offense.

The telephone calls, according to a source with knowledge of the conversations, have taken place over the course of the past several months and have picked up in intensity over the last several days.

A representative for Kardashian West confirmed to Mic that she has been in communication with the White House and is working to bring Johnson’s case to the president’s desk. The source with knowledge of the conversations also told Mic that Johnson’s case has been reviewed by White House attorneys.

Johnson, who has been in federal prison since October 1996, has captured international attention from criminal reform activists — and Kardashian West.  Kardashian West first learned about Johnson’s case from a Mic video [available here] published in October.  Kardashian West shared it on Twitter, and the video has since been viewed more than 8 million times.

Shortly after, Kardashian West became involved in trying to free Johnson, who was convicted for her role facilitating communications in a drug trafficking case. In November, Kardashian West enlisted a team of lawyers, including her Los Angeles-based attorney Shawn Holley, to advocate for Johnson’s release.

The two women also have communicated, with Johnson expressing her gratitude toward Kardashian West for her support in a November letter. Still, it appears the only clear path for Johnson’s release would be a presidential pardon or clemency — which could come at odds with Trump’s recent proposal to impose the death penalty for certain drug dealers.

In her October op-ed, Johnson told Mic she became involved in drug trafficking as a way to make ends meet following a particularly rough period in her life: She lost her job at FedEx, where she had worked for 10 years, due to a gambling addiction; she got divorced; and then her youngest son died in a motorcycle accident. “I felt like a failure,” Johnson said. “I went into a complete panic and out of desperation, I made one of the worst decisions of my life to make some quick money. I became involved in a drug conspiracy.”

Johnson was arrested and sentenced to life in prison, with no opportunity for parole. As of May 2018, she has spent over two decades behind bars. For criminal justice reform advocates, Johnson’s case serves as a glaring example of why America’s sentencing laws need reform.

Johnson was one of six prisoners featured in the ACLU’s campaign to end mass incarceration. She has also participated in Skype conversations at top universities including Yale and New York University, as well as at companies such as Google, where Mic first became aware of her story. One of Johnson’s daughters, Tretessa Johnson, told Mic in a video in November that her mother is remorseful and has been a model prisoner during her time behind bars....

President Barack Obama granted clemency to 231 individuals in December 2016, many of whom had similar drug-related charges. Johnson was not one of them. “When the criteria came out for clemency, I thought for sure — in fact, I was certain that I’d met and exceeded all of the criteria,” Johnson told Mic. “Oh my goodness, I had so much support.”

Now, her hope rests with Trump. News of Kushner and Kardashian West’s conversations comes on the heels of multiple reports in recent months that Kushner has been working to pass a bipartisan criminal justice reform bill in Congress, co-sponsored by Doug Collins (R-Ga.) and Hakeem Jeffries (D-N.Y.), among others.

For a lot more information about Alice Marie Johnson, check out all the materials assembled here at the CANDO website where she is listed #1 on this list of Top 25 Women who deserve clemency from federal prison.

May 2, 2018 in Celebrity sentencings, Clemency and Pardons, Drug Offense Sentencing, Who Sentences? | Permalink | Comments (11)

Interesting statistics in BJS statistical brief "Capital Punishment, 2016"

Earlier this week, the Justice Department's Bureau of Justice Statistics released this short new publication titled simply "Capital Punishment, 2016." The paper presents statistics on persons under sentence of death in the United States as of year-end 2016. Though already a bit dated, the publication is still an interesting accounting of summary trends in the death row population, including admissions to and releases from death row. Here are a few highlights from the publication's list of highlights:

May 2, 2018 in Data on sentencing, Death Penalty Reforms, Detailed sentencing data | Permalink | Comments (1)

"Revisiting the Role of Federal Prosecutors in Times of Mass Imprisonment"

The title of this post is the title of this recent article authored by Nora Demleitner recently posted to SSRN. Here is the abstract:

The article highlights how the Department of Justice and its leadership can change even long-standing prosecutorial orthodoxy and prevailing approaches when they set out a clear mission and empower and guide prosecutors in implementing it.  To decrease the number of federal prisoners, the Obama administration adopted a tri-partite strategy that included prevention and re-entry, co-equal with prosecutions.  Yet the collection and analysis of relevant data continued to fall short which privileged old practices that emphasized the number of convictions and prison years imposed.

A substantial investment in data is needed to support and reinforce a shift away from prison terms.  Perhaps most importantly, the article questions the role federal prosecutors should play at a time prisons remain overcrowded despite a historically low crime rate.  The criminal justice paradigm may not be an appropriate avenue for addressing social problems.

May 2, 2018 in Data on sentencing, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (0)

May 1, 2018

Should Prez Trump grant clemency to former Illinois Gov. Rod Blagojevich?

The question in the title of this post is prompted by this notable new commentary authored by Kristen McQueary for the Chicago Tribune. Here are excerpts:

Former Illinois first lady Patti Blagojevich is back in the spotlight, pulling every lever to convince President Donald Trump to award clemency to her imprisoned husband. In several media interviews, she has tried to build camaraderie with Trump by painting former Gov. Rod Blagojevich as a victim of FBI targeting and an overzealous prosecution.

That is sure to get Trump’s attention. But the better play might be appealing to Trump’s inside knowledge of the swamp — the trading of favors and campaign contributions between politicians and special interest groups. Trump knows it well. He was part of it. “Nobody knows politicians better than I do,” Trump said during a meeting with the Tribune Editorial Board in June 2015, shortly after he announced his candidacy for president. He was in town to speak to the City Club of Chicago and the editorial board invited him to stop by. He did, along with son Donald Jr.

During the meeting, we asked him about Blagojevich, who by then had been in prison for three years. The two had met on the set of “Celebrity Apprentice” in 2010 while the former governor’s corruption case was winding through the courts.

Here’s what Trump said then: “It was good having him on. I found him to be, I can only speak for myself, I found him to be a very nice guy. Not sophisticated. Had little knowledge of computers and things and you know we found that out … We found him to be very nice,” Trump said. “Now, he was under a lot of pressure at that point.

“I think that’s an awfully tough sentence that he got for what supposedly he did,” Trump said. “Because what he did is what politicians do all the time and make deals.”

Boom. What politicians do all the time. That has been the most compelling defense of Blagojevich throughout his controversial arrest, double trial and convictions. The feds placed two bugs and six wiretaps on his home telephone, his campaign office phone and his cellphone, and also bugged his friends and chief of staff. How many other politicians would end up in prison if the government listened to their conversations?

Yes, at two trials Blagojevich was rightfully found guilty on a total of 18 corruption counts for, among other things, trying to trade an Illinois U.S. Senate seat appointment for personal gain. Blagojevich deserved to go to prison. He lied to the FBI about a firewall that he claimed existed between his campaign fund and his government responsibilities. He tried to shake down campaign donors by withholding legislation they sought from state government....

Blagojevich has served six years of a 14-year sentence. Isn’t that enough?

Trump could grant him clemency and consider time served as punishment enough for what Blagojevich plotted. Remember, prosecutors arrested him before any transactions occurred.  They got him primarily on intent, not completion.  They also indicted Blagojevich’s brother to squeeze him but dropped the charges for the second trial, an admission that perhaps they were overzealous in their pursuits....

Trump knows the swamp.  He was the real estate mogul with a fat checkbook before he was president of the United States.  Plenty of politicians courted him and vice versa.  Will he look sympathetically on a fellow swamp thing?  He might.  He should.

Some of many older related posts on the Blagojevich case:

May 1, 2018 in Clemency and Pardons, Offense Characteristics, Sentences Reconsidered, White-collar sentencing, Who Sentences? | Permalink | Comments (2)

Feds forego capital prosecution for airport mass murderer, allowing guilty plea to LWOP

This new local article from Florida, headlined "Airport shooter Esteban Santiago to plead guilty, spend life in prison," highlights how (jury) sentencing discretion and other procedural rights in capital cases can impact how prosecutors approach charging and bargaining even in horrible murder cases.  Here are the details (with my emphasis added), with a bit of commentary to follow:

Esteban Santiago, the man who confessed to fatally shooting five people and wounding six at Fort Lauderdale’s international airport, has agreed to plead guilty and spend the rest of his life in federal prison.

Prosecutors have accepted his offer and are not seeking the death penalty but the judge first wants Santiago to undergo a mental health evaluation to make sure he’s legally competent to plead guilty.

The decision takes a very expensive and potentially long and emotional trial — followed by years of appeals — off the table.  Santiago’s documented history of severe mental illness, the fact that he went to the FBI and asked for help two months before committing the mass shooting, his willingness to plead guilty and his military service in the Iraq War were likely among the top factors that affected the decision, experts said.

Santiago, 28, had pleaded not guilty to a 22-count indictment in the Jan. 6, 2017 mass shooting at Fort Lauderdale-Hollywood International Airport.  Ten of those charges carried a potential death sentence or life in federal prison. His change-of-plea hearing is expected to be scheduled in the next several weeks in federal court in Miami.

Both sides are due back in court May 23 for a competency hearing with U.S. District Beth Bloom. If the judge is satisfied that Santiago is mentally competent, she would then allow him to plead guilty....

He was briefly hospitalized for psychiatric care in Alaska in November 2016, two months before the shooting. He had driven to the FBI office in Anchorage, asked for help and told agents he was hearing voices and thought the government was controlling his mind.

After Santiago surrendered at the airport, FBI agents said he confessed and told them he was “programmed” to act under government mind control. Later in the interview, he said he was inspired by the Islamic State extremist group, but authorities said no terrorism links have been found.

Though the line highlighted above tells a big part of the story, I still find myself left wondering about what factors played a central role in the sentencing decision-making of federal prosecutors here. I wonder if many or even most of the victims/family members supported this decision to forego a capital prosecution (and also wonder if they at all troubled that this critical decision lingered for 16 months from the time of this awful crime). I also wonder if prosecutors, perhaps concerned about a possible insanity defense and criticisms of mental health care given to veterans, we not even confident about getting a guilty verdict, let alone a death sentence, were this case to go to trial.

Whatever the reasons for the feds decision-making here (which will remain hidden and are essentially unreviewable), this case helps reveal the range of forces that necessarily place brakes on any efforts by the Trump Administration and Attorney General Sessions to make significantly more use of the death penalty.  A mass shooting in an airport of nearly a dozen people with five deaths would seem to be a textbook example of a "worst-of-the-worst" offense.  But because the defendant can make the case that he is not a worst-of-the-worst offender, federal prosecutors (in a pro-death penalty state) are not even willing to try to secure a death sentence.  

May 1, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (9)

April 30, 2018

"One in four American adults lives with a criminal record -- It's time for them to get a second chance"

The title of this post is the headline of this new Fox News commentary authored by James Ackerman, who is president and CEO of Prison Fellowship.  Here are excerpts:

This year the U.S. Senate recognized April 2018 as Second Chance Month. Fittingly, the resolution came six years after the passing of a man who embodied the importance of second chances: former Nixon “hatchet man” Charles Colson.  Today, the prison ministry Colson founded after his release from federal prison is at the head of a nationwide movement to recognize the dignity of people who have paid their debt to society and open up opportunities for them to succeed.

One in four American adults lives with a criminal record, and more than 48,000 documented legal restrictions limit their access to education, jobs, housing, and other things necessary for a productive life. But the people most directly affected are not the only ones who care.  Businesses, faith communities, government leaders, and other diverse groups recognize that second chances are not a partisan issue, but an issue key to the security and flourishing of all our neighborhoods....

The growing resonance of Second Chance Month confirms that the idea of a “clean slate” is central to most Americans’ thinking.  A recent Barna poll commissioned by Prison Fellowship found that about half of Americans agree that former prisoners should be afforded a chance to be productive members of their communities.  One quarter of Americans strongly agree that former prisoners should not face any further penalties after they are released.

While based on our deeply held national values, second chances are also sound criminal justice policy.  Nationwide, the Bureau of Justice Statistics indicates that approximately two out of three people released from prison will be arrested again within three years.  In part, this is because up to 90 percent of the formerly incarcerated struggle to find employment within the first year after release; a criminal record is often enough to put their résumé at the bottom of the stack, if not straight in the waste bin.

Others are unable to find a landlord willing to rent to them, contributing to high rates of homelessness among the formerly incarcerated.  Other restrictions include obstacles to professional licensing, educational opportunities, and voting.  These official limitations, alongside heavy social stigma, can make it extraordinarily difficult to re-integrate smoothly into society. When formerly incarcerated people recidivate, it’s damaging to public safety and costly for taxpayers.

By removing restrictions that are not necessary for safety, we help people get their hands on the rungs of a ladder to a productive, law-abiding future. I am also convinced that second chances are worth giving because so many Americans stand as living proof of their effectiveness....  When given access to second-chance opportunities, many are profoundly hard-working and innovative — because they know what it’s like to live without opportunities.  Many people with a criminal record serve on the staff of Prison Fellowship.  Throughout our society, former prisoners are parents, business entrepreneurs, faith leaders, and more.  Putting unnecessary stumbling blocks in their way only deprives society of their potential contributions.

Hundreds of thousands of men and women are returning from prison every year.  If they have paid their debt to society and are ready to lead transformed lives, we must not throw obstacles into their paths.  When people have a chance to start over, it’s not just their second chance — it’s a chance for all of us to see transformed lives, safer communities, and a more just society.

My most recent article, "Leveraging Marijuana Reform to Enhance Expungement Practices," is written in the spirit of this commentary and Second Chance Month (so I figured I should promoting again here).

April 30, 2018 in Collateral consequences, Reentry and community supervision | Permalink | Comments (14)

New York Court of Appeals upholds most serious sex offender registration despite defendant's acquittal on most serious charges

Over at Reason, Jacob Sullum has this effective new review of a notable example of "acquitted conduct" being used to justify a severe collateral consequence.  The posting's full headline provides the basic story: "A Jury Rejected the Charges, but He Still Has to Register As a Sex Offender for Life: New York's highest court says accusations can be considered for registration purposes even when the defendant was acquitted." Here are some of the particulars:

Quinn Britton's 13-year-old niece, identified in court documents as A.B., accused him of raping her during a Thanksgiving Day visit to her grandmother's home in Brooklyn, where her uncle lived, when she was 11. Britton denied any inappropriate behavior, and his mother said A.B. had spent the whole evening watching TV in the living room with her.... The jurors struggled to make sense of these conflicting accounts.  Since there was no physical evidence, the case came down to a question of whether to believe A.B. or Britton. During three days of deliberations, the jurors sent the judge three notes indicating that they were deadlocked. Each time he told them to keep deliberating.

Finally the jurors emerged with a verdict that seemed to split the difference between those inclined to believe Britton and those inclined to believe A.B.  They found Britton guilty of second-degree sexual abuse, a misdemeanor, based on the allegation that he kissed A.B.'s breasts, but not guilty of three felonies: first-degree rape, based on the allegation of penetrative sex, and two counts of a first-degree sexual act, based on allegations that he performed oral sex on the girl and forced her to perform oral sex on him.

During a post-trial hearing, the judge nevertheless assumed that Britton had committed the felonies and therefore assigned him to risk level two under New York's Sex Offender Registration Act (SORA), which triggers lifetime registration. Had the judge considered just the crime of which Britton was convicted, he would have been assigned to risk level one, which requires registration for 10 years.

In a 6-to-1 ruling last week, the New York Court of Appeals upheld Britton's classification, noting that it was supposed to be based on "clear and convincing evidence," a less demanding standard than the proof beyond a reasonable doubt required for a criminal conviction.  It is possible, in other words, for an alleged crime to figure in a defendant's risk level even when there is not enough evidence for a guilty verdict.

Writing in dissent, Judge Jenny Rivera charges her colleagues with improperly applying the "clear and convincing evidence" standard, which requires "a high degree of probability" that an allegation is true. A.B.'s testimony should not be treated as reliable under SORA, Rivera argues, because the jury did not find it credible.

April 30, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (5)

"Is There Such a Thing as 'Good' Prison Design?"

HMC%20Architects%20Las%20Colinas%202The question in the title of this post got me to thinking about the famous Panopticon building conceived by the English philosopher Jeremy Bentham and also the historic debates over the Pennsylvania system and the Auburn system of prison design in the early Nineteenth Century.  But the title of this post references modern discussions, as it is from this new Architectural Digest article with this subheadline: "Architects working toward creating more livable prisons come up against challenges of epic — but not insurmountable — proportions."  Here are excerpts from a piece worth reading in full:

Some would argue that America’s prison problem is very much a design problem.  Facilities are usually built like fortresses — monoliths in rural locations ringed with razor wire and high walls. Interiors are detailed to withstand tremendous abuse, made with hard materials like concrete, linoleum, steel, and concrete block which mercilessly reflect the endless noise inside prisons, raising stress levels of both inmates and those who work with them.  There’s generally either too much or too little light — most of it fluorescent, and switched on 24/7 — which scrambles everyone’s circadian rhythms.  But due to security and cost concerns, access to natural light is a luxury.  Windows are expensive, and their size and location often determine a facility’s weakest security points. The typical interior color palette, meanwhile, is a study in sensory deprivation—just a few shades of monotonous, soul-crushing beige.

In fact, it just took one night inside a U.S. jail to move Frank Gehry to run a Spring 2017 semester course at Yale exploring the design of prison facilities.  He encouraged his students to rethink incarceration as an opportunity for rehabilitation rather than punishment and took them to Northern Europe and Scandinavia, where prisons look and perform more like college campuses than fortresses....

Perhaps the finest example of compassionate American prison design is the recently completed Las Colinas Women’s Detention and Reentry Facility, commissioned by the County of San Diego, designed by KMD/HMC Architects.  The complex sits on a 45-acre campus and features residentially scaled buildings clustered around exterior courtyards.  Research shows that isolation breeds violence and anger; the more normalized environment is meant to encourage socialization and to “minimize physical and psychological barriers” between inmates and staff.  In fact, the facility looks a lot like the college campuses Gehry’s students envisioned: Inside, the floors are a warm brown and sometimes playfully patterned; translucent green accent walls break down the scale of the cafeteria; and materials include not only concrete but also ashlar stone, cork, and wood.  Due to the facility’s podular layout, all public spaces feature large windows and an abundance of natural light.

Meanwhile, more and more designers are holding their peers accountable — at the very least for participating in the design of cells made for solitary confinement.  As Raphael Sperry, the president of Architects / Designers / Planners for Social Responsibility (ADPSR), puts it, “You can’t fix mass incarceration by putting prisoners in nicer cages.”  He unsuccessfully lobbied the AIA to establish a rule banning members from creating supermax prisons.  Sperry argues that the answer to the country’s prison problem is through justice reform — reconsidering the laws that send so many people to prison in the first place, and providing alternative sentences that focus on rehabilitation and responsibility rather than incarceration.  While that pursuit may be beyond the scope of the average designer, large architecture firms working in this space have shown that expert voices like theirs can at least start to shape how clients view the task of jailing human beings. In the end, good design is just the beginning.

April 30, 2018 in Prisons and prisoners, Who Sentences? | Permalink | Comments (0)

Following a stay last month, SCOTUS grants cert on a method of execution Eighth Amendment case from Missouri

The US Supreme Court this morning issued this order list this morning that includes a trio of grant of certiorari.  The only criminal case of the three is Bucklew v. Precythe.  Interestingly, Bucklew only first came to SCOTUS last month when, as noted in this prior post, the Supreme Court Justice split 5-4 when granting Russell Bucklew a stay from his execution in Missouri based in part on his claim that any lethal injection would violate the Eighth Amendment’s ban on cruel and unusual punishment because he has "blood-filled tumors [growing] in his head, neck, and throat."  

Here is how this SCOTUSblog case page describes the issues presented by Bucklew's cert petition: 

Issues: (1) Whether a court evaluating an as-applied challenge to a state’s method of execution based on an inmate’s rare and severe medical condition should assume that medical personnel are competent to manage his condition and that procedure will go as intended; (2) whether evidence comparing a state’s method of execution with an alternative proposed by an inmate must be offered via a single witness, or whether a court at summary judgment must look to the record as a whole to determine whether a factfinder could conclude that the two methods significantly differ in the risks they pose to the inmate; and (3) whether the Eighth Amendment requires an inmate to prove an adequate alternative method of execution when raising an as-applied challenge to the state’s proposed method of execution based on his rare and severe medical condition.

Interestingly, on the order list when granting cert, the Supreme Court asked the parties to brief some additional issues.  Here is what the Court said when granting cert:

The motion of petitioner for leave to proceed in forma pauperis and the petition for a writ of certiorari are granted. In addition to the questions presented in the petition, the parties are directed to brief and argue the following Question: Whether petitioner met his burden under Glossip v. Gross, 576 U. S. ___ (2015), to prove what procedures would be used to administer his proposed alternative method of execution, the severity and duration of pain likely to be produced, and how they compare to the State's method of execution.

This Bucklew case likely will not be argued until October or November 2018, and likely will not produce an opinion from the Court until probably around this time next year. So, stay tuned.

April 30, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

April 29, 2018

"Why Bill Cosby may not spend any time in prison"

The title of this post is the title of this lengthy new CNN article that provides a review of some of what we can now expect in the case of Pennsylvania v. William Henry Cosby, Jr. in the wake of his convictions this past week.  Here are excerpts:

Based on his conviction this week on three assault charges, comedian and TV star Bill Cosby could be sentenced to 30 years in prison.  But legal experts said the 80-year-old certainly will spend less time than that behind bars, and there's a very real possibility that he may not ever be incarcerated.

Why?  Well, it's mostly to do with his defense team's plan to appeal the guilty verdict -- likely on the grounds that the decision to allow five other accusers to testify in the trial unfairly prejudiced the jury.

Cosby's attorney, Tom Mesereau, will probably ask the court that his client be given home confinement during the appeal, which could take months or even years, CNN legal analyst Joey Jackson said.  "I think he'll ask the court and do whatever he needs to, to have his client remain out at liberty until these issues are decided, whether it was appropriate to allow all those accusers to testify, and how prejudicial and unfair would that be," Jackson said.

The decision on Cosby's bail is up to Montgomery County Judge Steven T. O'Neill, who oversaw the case.  His prior rulings suggest he may allow Cosby to remain on home confinement.  On Thursday, O'Neill dismissed the prosecution's plea to revoke Cosby's $1 million bail and remand him to jail. "I'm not simply going to lock him up right now," the judge said, citing his age and his track record of appearing at every hearing for two and a half years....

For now, Cosby is not permitted to leave his Pennsylvania home. If he does leave the state for another home, it would have to be arranged ahead of time and he would have to wear a GPS monitoring device, the judge ruled.  If O'Neill does allow Cosby to remain free during appeals, and the legal action lasts for years, then there's a question of whether the comedian's age and health will make that sentence moot....

Though Cosby faces a maximum of 30 years in prison, Montgomery County District Attorney Kevin Steele indicated he would not press for that sentence.  "He was convicted of three counts of (indecent assault), so technically that would be up to 30 years.  However, we have to look at a merger of those counts to determine what the final maximum will be," Steele said.

Legal analyst Areva Martin said the judge's rulings so far suggest he will give Cosby a much reduced sentence. "I think the fact that the judge yesterday allowed him to walk out of that courtroom, did not remand him immediately to jail, gives us a sense about what this judge is likely to do when he gets to the sentencing hearing," she said.

Judges can take any number of mitigating factors into consideration when issuing a sentence, she explained. "He will be able to take into consideration Cosby's age, the status of his health, the philanthropic work that he's done over the last several decades, the fact that this is his first criminal conviction -- all of those will be factors that the judge can take into consideration when sentencing him."

A sentencing hearing has not yet been scheduled.

Some women who say they were also assaulted by Cosby believe he should spend time in prison. "I believe that it's essential he spend time in jail and it wouldn't break my heart to see him spend the rest of his life in jail," Janice Baker-Kinney said Friday.

But ultimately, the length of his sentence would not change his guilty conviction. "Whether he ends up serving time in jail or if he dies during the appeals process, that doesn't remove the fact that he has been convicted," [Professor Michelle] Dempsey said. "That's definitely an important moment in history."

Prior related post:

April 29, 2018 in Celebrity sentencings, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (12)

First ripple of Dimaya disruptions appears in SCOTUS relists

In this post the day after the Supreme Court's big ruling in Sessions v. Dimaya, No. 15-1498 (S. Ct. April 17, 2018) (available here), I asked "How many federal prisoners may have Dimaya claims and how many procedural challenges will they face raising them?".  Though not providing a direct answer to this question, this most recent Relist Watch posting by John Elwood over at SCOTUSblog reinforces my sense that the Dimaya disruptions are likely to be plentiful and complicated. Here are amusing excerpts from John Elwood's post (with links from the original):

We have a record number of relists, at least during the seven-plus years I’ve been watching carefully: 44. Of those, 42 are cases that obviously were held for Dimaya, and now the court is trying to decide what to do with them. Just identifying all those relists on the court’s docket, and then figuring out the legal issues involved, was a big job for people who really do have other responsibilities.  But although the task was a bit dull, at least it involved an enormous amount of backbreaking labor. And so let me begin where I usually end: Thanks to Kevin Brooks for identifying all the relists, and thanks to Aurora Temple Barnes for sorting through the heaps of PDFs I lobbed at her and identifying the questions presented and creating tidy case pages. 

The Dimaya relists fall into three main groups.  First, there are many cases that simply present the very same question as Dimaya about the constitutionality of § 16(b). This group is enormous, including Sessions v. Magana-Pena15-1494Sessions v. Lopez-Islava15-1496, Sessions v. Miranda-Godinez16-398Sessions v. Baptiste16-978Sessions v. Shuti16-991Gonzalez-Longoria v. United States16-6259Solano-Cruz v. United States16-6288Perdomo v. United States16-7214Bello v. United States16-7667Alvaro-Velasco v. United States16-8058Castaneda-Morales v. United States16-8734Maldonado-Landaverde v. United States16-9318Linares-Mazariego v. United States16-9319Larios-Villatoro v. United States16-9660, Diaz-Esparza v. Session17-820Gomez-Ureaba v. United States17-5283Garcia-Hernandez v. United States17-5305Hernandez-Ramirez v. United States17-6065Ontiveros-Cedillo v. United States17-6721Gutierrez-Lopez v. United States17-6751Casabon-Ramirez v. United States17-7183, and -- so far as we can tell (the parties haven’t gotten back to us yet), Eaton v. United States17-6680.  These cases should have been easy to resolve by denying cert or granting, vacating and remanding for further consideration in light of Dimaya. That they were not is the clearest example that the volume was just too great.

The second group of Dimaya relists involves application of that case to a Sentencing Guidelines provision -- a type of claim the government argues is foreclosed by Beckles v. United States. Those cases include first-time relists United States v. Hernandez-Lara16-617Aguirre-Arellano v. United States16-8675and Rodriguez v. United States17-5476, as well as returning relist Robinson v. United States17-6877.

The third and final group of Dimaya relists involves cases that ask whether the logic of that case and Johnson v. United States invalidates 18 U.S.C. §924(c)(3)(B), yet another criminal code provision defining “crime of violence.”  This week’s new relists that involve that question include Taylor v. United States16-6392Prickett v. United States16-7373Glover v. United States16-8777Taylor v. United States16-8996Davis v. United States16-8997United States v. Jenkins17-97United States v. Jackson17-651McCoy v. United States17-5484Winters v. United States17-5495Lin v. United States17-5767Eizember v. United States17-6117Enix v. United States17-6340Ecourse-Westbrook v. United States17-6368, and Carreon v. United States17-6926.  The government argues that after Dimaya, these cases should be sent back to the courts of appeals to consider narrowing constructions of Section 924(c) that might resolve the constitutional issues.  Unsurprisingly, criminal defendants argue that the court should just grant review on this issue.  We’ll see which side prevails.

Prior related post:

April 29, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (4)