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June 9, 2018

Latest notable statements by AG Jeff Sessions about crime rates and overdose deaths

Just like US Presidents gets to see official jobs numbers before they are officially made public, I suspect US Attorneys General get to see crime data before they are officially made public.  I am thus always eager to see what AG Jeff Sessions has to say about crime trends, and so these comments made Friday as part of these extended remarks to the Western Conservative Summit caught my eye:

In the Trump administration, we know whose side we’re on.  We’re on the side of law and order — and we back the blue, not the criminals.  We want every American to live in peace.

In recent weeks I sent in reinforcements: more than 300 additional federal prosecutors to high-crime parts of this country.  This is the biggest surge in prosecutors in decades.

These efforts are especially important because, when President Trump took office, the country had been reeling from a sudden increase in crime.  Crime had been declining for two decades. The violent crime rate had been cut in half.  The murder rate was cut in half.  Aggravated assault was cut almost in half. Robbery fell by 62 percent.

But from 2014 to 2016, those trends reversed. In the last two years of the Obama administration, the violent crime rate went up by nearly seven percent.  Robberies went up. Assaults went up nearly 10 percent. Rape went up by nearly 11 percent.  Murder increased by more than 20 percent.

But under President Donald Trump, we are stopping these trends. He is a strong supporter of our law enforcement efforts. As he said during Police Week, “If we want to bring violent crime down, then we must stand up for our police.”  And make no mistake, our goal is to bring crime down.

In the Trump era, the ACLU isn’t making our law enforcement policies.  The professionals are. And we’re seeing results. In the first six months of last year, the increases in the murder rate slowed and violent crime actually went down.  Publicly available data for the rest of the year suggest further progress.

Preliminary data for 2018 look even better.  The Major City Police Chiefs Association has reported a 3.8 percent decline in violent crime and 4.7 percent decline in murders, based on 65 reporting agencies.

New CDC preliminary data show that last fall, drug overdoses finally started to decline.  Heroin overdose deaths declined steadily from June to October, as did overdose deaths from prescription opioids.

We need this progress right now — because not only was crime increasing at the end of the Obama administration, but drug overdose deaths in this country increased by more than a third in just two years.

June 9, 2018 in Criminal justice in the Trump Administration, National and State Crime Data, Who Sentences? | Permalink | Comments (0)

Interesting perspective on "micro justice" and "macro justice" in the criminal justice system

Over at Governing, Greg Berman (no relation), who is the Director of the Center for Court Innovation, has this interesting commentary under the heading "Our 2 Kinds of Criminal Justice, and How to Reconcile Them: We need both micro justice and macro justice. But they aren't always in sync."  Here is how it starts and ends:

Recently I was asked to speak to a group of idealistic young people just starting their careers in public-interest professions.  After my spiel concluded, the first question I was asked caught me completely off guard: "What is justice?"

Somehow, I have managed to work in the field of criminal justice for 25 years without developing a satisfactory response to this question.  In the days since, as I have rehearsed what I should have said, I have come to realize that, for me, there are two kinds of justice: micro justice and macro justice.

Micro justice focuses on individual people and asks, "What is an appropriate response to the circumstances presented by this specific case?"  Macro justice looks at the bigger picture, examining social impacts, both positive and negative, and tries to determine whether they have been distributed in a way that conforms to basic tenets of fair play.

One of the challenges that confronts the field of criminal justice is that micro justice and macro justice are not always in sync.  Every day, police officers, prosecutors and judges are making decisions in individual cases that are rational, that follow all of the proper procedures, and that many would argue are correct on the merits.  Unfortunately, the cumulative effect of these decisions is to achieve outcomes that, viewed in the aggregate, do not seem just....

So where does this leave us? How do we reconcile the reality that at the ground level many of the people in the justice system are trying to do the right thing with an overarching analysis that the system is not achieving just results?

Many of the potential answers being advanced at the moment -- for example, eliminating cash bail or closing private prisons -- are macro justice solutions that tend to limit the discretion of system actors. We need big ideas like these if we are going to improve justice in this country.

But big ideas alone are not enough.  We need micro justice solutions too. Small changes in daily practice can also have far-reaching implications. We need to give front-line justice professionals the training they require to understand the traumatic life circumstances that bring people into the justice system, whether as defendants or victims. And we need to give them the encouragement and flexibility necessary to treat every person they encounter with decency, respect and individualized attention.

Perhaps most important of all, we need to convince bright young people, like the ones who initially befuddled me, to become front-line criminal-justice practitioners.  The fight to transform the American justice system cannot be won from the offices of our foundations, elected officials or editorial boards.  To create a fair, effective and humane justice system, we need judges, probation officials and correctional officers who are willing to wrestle with the question "what is justice?" on the ground each and every day.

June 9, 2018 in Who Sentences? | Permalink | Comments (0)

June 8, 2018

ACLU brings novel lawsuit against Kansas DA for failing to disclose diversion options to defendants

Late last year, the ACLU of Kansas last year produced this report titled "Choosing Incarceration" lamenting that prosecutors in Kansas often sought incarceration over available diversion programs.  Now, as details in this press release, the ACLU has taken its complaints to court:

The American Civil Liberties Union and the ACLU of Kansas filed a lawsuit today on behalf of a faith-based organization against a county prosecutor for failing to implement diversion programs in accordance with Kansas law and for pursuing the expensive and disproportionately harsh prosecution of individuals posing minimal community risks.

The lawsuit was filed today in the Kansas Supreme Court against Montgomery County Attorney Larry Markle. At a time when Kansas prisons have swelled beyond capacity, costing taxpayers millions of dollars, Markle and Montgomery County drastically underutilize diversion compared to the national and state average, despite the fact that diversion programs that allow defendants to seek incarceration alternatives such as treatment, community service, or restitution have proven financial and social benefits.

“These programs are essential to establish a rehabilitative rather than punitive criminal justice system,” said Somil Trivedi, staff attorney with the ACLU’s Trone Center for Justice. “Ignoring the legal requirements to provide notice to defendants of the existence of these programs, and to not discuss these options with those who qualify, is against the law. We’re taking action in Kansas to send a message to prosecutors that it’s their obligation to uphold the law and serve their community, not just rack up as many convictions as they can.”

Markle’s failure to follow Kansas diversion law negatively impacted the work the Kansas Crossroads Foundation, a faith-based organization that provides drug rehabilitation and economic development services to Wilson and Montgomery County defendants convicted of drug offenses. Since many KCF clients were likely not given the opportunity to apply for diversion, KCF has had to divert critical resources away from rehabilitation programs to conduct jail counseling sessions and help defendants comply with the terms of their probation or parole....

Following efforts in New Orleans and Orange County, California, today’s lawsuit is the third the ACLU has filed against active district attorneys since October as a part of nationwide efforts to reform prosecutorial practices nationwide.

The complain in his matter is available at this link.  

June 8, 2018 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Prez Trump now says he is looking at "3,000 names" for possible clemency and will seek more names from NFL players

Another day, another round of clemency craziness thanks to Prez Trump.  These two new headlines about what Prez Trump said today account for the new craziness: 

Here is a little context from the Reuters piece (with one phrase highlighted):

U.S. President Donald Trump said on Friday he is considering pardoning some 3,000 people “who may have been treated unfairly,” including late heavyweight boxing champion Muhammad Ali.

“We have 3,000 names. We’re looking at them.  Of the 3,000 names, many of those names have been treated unfairly,” Trump told reporters on the White House lawn before he departed for a Group of Seven summit in Canada. In some cases, their sentences are “far too long,” he said.

Trump said he was considering a pardon for Ali, who died in 2016. The boxer refused to be inducted into the U.S. Army in 1967, claiming conscientious objector status, and was sentenced to five years in prison. He never went to prison while his case was under appeal and in 1971 the U.S. Supreme Court overturned the conviction.... It was unclear why Trump would be considering a pardon, given that Ali’s conviction was overturned.

Trump also said he will reach out to National Football League players who have been urging criminal justice reforms for their recommendations of people who have been treated unfairly.

The peculiar discussion of Ali and the olive branch of sorts to NFL players is sure to garner the most attention, but the statement by Prez Trump that some federal defendants get sentences that are "far too long" strikes me as most interesting and perhaps consequential. Specifically, in the on-going debate over federal statutory sentencing and prison reforms, this comment leads me to wonder (and hope) that Prez Trump might be convinced to be support of some statutory sentencing reforms before too long, if not now.

June 8, 2018 in Clemency and Pardons, Who Sentences? | Permalink | Comments (6)

"Why Aren’t We Spending More on Prisoner Education?"

The question in the title of this post is the headline of this notable new commentary authored by Stephen Steurer now up at The Crime Report. Here is how it starts and ends:

Education reduces crime, plain and simple.

The RAND Corporation underscored the positive impact of education in its 2013 review of the research reports on correctional education over the last couple of decades.  Bottom line from their reports: providing education programs for incarcerated men and women significantly reduces future crime all by itself, separate from any other treatment they receive.

Combined with other effective programs, such as drug rehabilitation and mental health counseling, education can help to reduce crime and recidivism even more effectively. RAND also demonstrated clearly that an education program pays for itself several times over. Every dollar invested in correctional education creates a return of five dollars in the reduction of future criminal justice costs.

So why are we not spending more criminal justice dollars on education?  We literally spend billions on the most expensive — and least effective — option: locking folks behind bars in record numbers....

Positive change can be painfully slow.  However, when the US does become interested in a particular issue, it is amazing how quickly it can retool and redirect its resources.  For those of us old enough to remember, we did it by putting a man on the moon when the Russians threatened US leadership in the space race.  Hopefully, we can redirect ourselves again to help change the direction of the lives of so many people returning to society after years of incarceration.

Education is not rocket science.  We already know how to teach people to read, write, do math and train for jobs.  For the sake of the incarcerated and, literally, for our own health and safety, let’s build and open more school programs in our prisons and jails.  Education does reduce recidivism!...

We continue to need serious political writers, both liberals and conservatives, to urge government and courts to get really “tough on crime” and sentence criminals to do their time in school to straighten out their lives.  We need to literally “throw the book at them.”

June 8, 2018 in Prisons and prisoners | Permalink | Comments (4)

June 7, 2018

Any suggestions for Prez Trump's "growing list of potential pardons or commutations"?

The question in the title of this post is prompted by this ABC News article headlined "Trump’s ‘solo act’ push for presidential pardons likely to grow, WH officials say." Here are excerpts:

The White House has been working to prepare documents for a growing list of potential pardons or commutations under consideration by President Donald Trump, two senior administration officials told ABC News Thursday. "You don't want to be the person empty-handed when he's asking," one of the officials said. "Need to be ready when the boss is ready to go.”

Officials describe the push for pardons as "a solo act," pointing directly to Trump’s pushing for more and more names. White House aides believe Trump is grasping for names he knows like Martha Stewart and former Illinois Gov. Rod Blagojevich, sources told ABC News, while the aides lobby the president to consider also more unknown Americans who have been behind bars for nonviolent crimes.

The sources said they expect the president's list to grow in the coming weeks. "He's doing it his way and he likes seeing how quick the process has been," one of the sources said. The White House, as ABC News has reported, has been going around the Department of Justice, which is usually heavily involved in such cases.

I sincerely doubt Prez Trump or his aides read this blog and its comments, but one never knows.  So, dear readers, with Prez Trump reportedly "pushing for more and more names," let's give him more and more names.

Especially in light of modern marijuana reforms, I hope someone points Prez Trump and his aides to the Life for Pot site which has detailed lists of Nonviolent Inmates (over 62) Serving​ Life without Parole for Marijuana and Inmates(under 62) Serving ​Sentences of Life without Parole in Federal Prison for Marijuana.  And I cannot help but view John Knock as the first among equals on that list, in part because of the amazing work his sister has done to bring attention to his story and those of other similarly over-sentenced federal defendants.

The amazing Shon Hopwood and FAMM's Kevin Ring has been championing the cause of Matthew Charles (discussed in this recent post), so I am hopeful that his name is already on the radar of folks at the White House.   But I know there are thousands, likely tens of thousands, of persons who can make a reasonable case for receiving clemency in the form of a commutation or pardon.  I welcome names to be listed and cases to be made in the comments.   

UPDATE: This Washington Post WonkBlog piece spotlights a ready source for clemency candidates. The piece is headlined "It’s not just Alice Marie Johnson: Over 2,000 federal prisoners are serving life sentences for nonviolent drug crimes," and it starts this way:

On the advice of Kim Kardashian, President Trump on Wednesday commuted the prison term of Alice Marie Johnson, a 63-year-old great-grandmother, who in 1996 was sentenced to life without parole in federal prison on nonviolent drug and money laundering charges.

It's a somewhat surprising move coming from Trump, a president who has publicly called for executing drug dealers. But Jordan's case underscores how many nonviolent drug offenders are serving life terms in federal prison. According to federal corrections data analyzed by the Sentencing Project, a criminal-justice-reform group, as of 2016 1,907 federal inmates were serving life sentences for drug offenses, which are by definition nonviolent (more on that below).

An additional 103 offenders found guilty of those crimes were serving “virtual life sentences,” which the Sentencing Project defines as sentences of 50 years or more. Under federal law, there is no possibility of parole for crimes committed after Nov. 1, 1987.

June 7, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

"Treatment of sex offenders depends on whether they've challenged rules"

The title of this post is the headline of this lengthy new Detroit Free Press article. I recommend the piece in full, and here is how it gets started and additional excerpts:

Eight months after the U.S. Supreme Court effectively upheld a decision saying parts of Michigan's sex offender registry law — one of the toughest in the nation — were unconstitutional, thousands of former sex offenders who thought they'd be off the registry by now, or facing less severe restrictions, have seen no changes.

The law remains in place, unchanged, with the state defending it in more than three dozen lawsuits — many of which it has already lost.  The controversy involves a ruling two years ago by the U.S. 6th Circuit Court of Appeals in Cincinnati that said provisions enacted in 2006 and 2011 and applied to offenders convicted before then violates constitutional protections against increasing punishments after-the-fact.  Last October, the U.S. Supreme Court declined to hear the state's challenge to that ruling, effectively upholding it.

The rules prohibit offenders — many of whom have gone years if not decades without committing any crimes — from legally living, working or even standing within 1,000 feet of a school, a regulation that many say makes it hard for them to work, or to pick up or see their kids at school, and has forced some to give up jobs and homes.  The rules also require offenders to immediately register email addresses or vehicles and report to police as often as four times a year, in some cases, for the rest of their lives.

Because the appeals court decision came in civil cases and not class action lawsuits, the state has maintained those rulings apply only to the specific plaintiffs who brought them. And with the state Legislature failing to change the law, registrants find themselves in a legal morass, with the requirements they must comply with almost wholly contingent on whether the offender has successfully gone to court.  Michigan now has the fourth-largest sex offender registry in the country, with 43,623 registrants on its database, more than the state of New York, which has 40,623.

The disparities can be wide.  One man convicted 17 years ago of eight counts of sexual contact with several girls under the age of 13 sued prosecutors, arguing that the rules keeping him on the registry — with his photo, name, address listed publicly — for life were unconstitutional.  Last November, after the Supreme Court declined to take up the 6th Circuit decision, the state Court of Appeals agreed, saying those rules no longer apply to him.

But it's different for another man convicted of touching two girls under the age of 16 while drunk 24 years ago in another state but who has had a clean record since.  Last September, as a "Tier 2" offender, he was expecting to come off the registry after nearly a quarter century. But he was abruptly told by police that his case had been reviewed and that since one of those girls was under 13, he’d stay on the list — and be listed among the worst offenders on "Tier 3" — for life.  To this day, under Michigan law, he's subject to all those restrictions from which the first man has been freed....

In Michigan, any legal certainty about what is required of thousands of sex offenders is almost nil.

While some local prosecutors — like those in Wayne and Oakland counties — no longer enforce cases involving retroactive applications of the law, it's far from certain that others are following suit. Macomb County prosecutors, for instance, declined to answer the Free Press' questions about whether they are still enforcing those restrictions. And Michigan State Police — which oversees the registry — says, legally, all restrictions remain in place.

The state’s top law enforcement official, Attorney General Bill Schuette — who is running for governor — won’t say whether the 6th Circuit Court decision should be applied statewide, his office refusing comment.

Prior related post:

June 7, 2018 in Collateral consequences, Criminal Sentences Alternatives, Reentry and community supervision, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act

As reported in this article from The Hill, a "group of 40 former state and federal inmates is pushing Senate leaders to take up the White House-backed prison reform bill that has divided Democrats and liberal groups, as well as GOP senators." Here is more:

In a letter Wednesday to Senate Majority Leader Mitch McConnell (R-Ky.), Minority Leader Charles Schumer (D-N.Y.), Judiciary Committee Chairman Chuck Grassley (R-Iowa) and ranking member Dianne Feinstein (D-Calif.), the former prisoners argue the First Step Act, while modest, offers some meaningful reforms....

The former inmates say they know the bill isn’t perfect, but it’s something. “All of us would change the bill in different ways and many of us wished it addressed excessive federal mandatory minimum sentences,” they wrote.  “But we also know that the bill would provide some long overdue relief and hope to more than 180,000 people in federal prison and millions of their family members and loved ones on the outside.”...

Supporters of prison reform say demands for all or nothing is the wrong approach. “We’ve been disturbed by some of the comments we’ve heard that doing nothing is better than doing something and that is not at all what we hear from the tens of thousands of prisoners we’re in touch with,” said Kevin Ring, president of Families against Mandatory Minimums, who spent one-and-a-half years in federal prison. “It’s also inconsistent with our own experiences being in federal prisons and knowing how much reform is needed. Waiting to do anything until you get everything is deeply misguided.”

The full letter and the list of signatories is available at this link. Here is an excerpt of a missive that merits a full read:

Despite the bill’s clear benefits, we have heard some people suggest it would be better for Congress to do nothing rather than pass this bill.  Such talk reflects a disturbing detachment from the hardships that so many families are experiencing today because of our counterproductive federal sentencing and prison policies.

While we do not claim to speak for all people who are serving time in federal prison or their families, we (or the organizations at which we work) are in touch with tens of thousands of these incarcerated individuals and their families every week.  Many of us still have friends and loved ones behind bars.  The people we talk to have no use for abstract debates about whether to pass comprehensive or narrow reform, speculative theories about how passing reform today might impact future reform or, worst of all, political gamesmanship.  These families just need some help.  They shouldn’t have to wait any longer.

We also know from our personal experience that meaningful programming, educational, and job training opportunities in the federal system are lacking.  All too often people are warehoused for decades with no hope.  We know that too many parents are incarcerated so far away from their children that they rarely get to visit them — just imagine seeing your kids once or twice a year, if that.  Going without the hugs and kisses of our loved ones for weeks and months was the most difficult part about being in prison.  We know others who have gone for years without that critical physical contact.  We also know that the Federal Bureau of Prisons’ incorrect calculation of good time credit has deprived people of shortening their lengthy prison sentences.  If anyone tells you these reforms are not “real” or “meaningful” to vulnerable families and individuals across the country, they simply don’t know what they are talking about.

Some of many prior related posts:

June 7, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences? | Permalink | Comments (2)

After SCOTUS rejected its standards, Texas Court of Criminal Appeals again rejects Bobby Moore's intellectual disability claim to preclude death penalty

As noted in this post last year, the US Supreme Court in Moore v. Texas, No. 15-797 (S. Ct. March 28, 2017) (available here), rejected the restrictive factors then being used by the Texas Court of Criminal Appeals to assess intellectually disability for death penalty ineligibility under the Eighth Amendment.  But the defendant in that case, as reported in this local article, has now had his intellectually disability claim rejected again by the Texas Court of Criminal Appeals.  Here are the basics:

The Texas Court of Criminal Appeals has upheld the death sentence of Bobby Moore in a case over the definition of intellectual disability — despite pleas from both Moore and the prosecution to change his sentence to life in prison.

More than a year ago, the U.S. Supreme Court knocked down Texas’ method of determining intellectual disability for death-sentenced inmates in Moore's case, ruling the state used outdated medical standards and rules invented by elected judges without any authority. In a 5-3 ruling on Wednesday, the all-Republican Texas Court of Criminal Appeals accepted the use of current medical standards to determine intellectual disability but said Moore still fails to qualify — making him eligible for execution.

Moore was sentenced to death nearly 38 years ago, three months after he walked into a Houston supermarket with two other men and fatally shot James McCarble, the 73-year-old clerk behind the counter, according to court documents....

In a new evaluation using the current medical framework, the majority of the Court of Criminal Appeals ruled that Moore still did not show enough adaptive deficits to qualify as intellectually disabled, citing the fact that he learned to read and write in prison and buys items from commissary — the prison’s store. The Supreme Court had warned against using strengths gained in a controlled environment like prison, but the Texas court said some of Moore’s deficits were due to the “lack of opportunity to learn,” according to the opinion written by Presiding Judge Sharon Keller.

The court’s opinion also noted that before the U.S. Supreme Court ruled in 2002 that people with intellectual disabilities were exempt from execution, Moore had claimed in court that he did not have a disability and that his difficulties were due to an abusive childhood and his lack of learning opportunities.

In a 67-page dissent, death penalty critic Judge Elsa Alcala, joined by Judges Bert Richardson and Scott Walker, said the court’s majority erred in its use of the current medical standards and that Moore is intellectually disabled. Alcala said the court disregarded the standards by improperly weighing Moore’s strengths against his deficits in his adaptive functioning and put too much weight on his progress in a controlled death row environment.

She cited the decision by the lower Texas court that held a live hearing on the issue, Harris County District Attorney Kim Ogg’s request for a change of sentence based on Moore’s deficiencies and many observations in the Supreme Court ruling that appeared to agree Moore was disabled. “I’m in good company in reaching this conclusion,” Alcala wrote. “There is only one outlier in this group that concludes that applicant is ineligible for execution due to his intellectual disability, but unfortunately for applicant, at this juncture, it is the only one that matters.”...

Though it hasn’t changed his sentence, the Supreme Court ruling in Moore’s case has had repercussions throughout Texas. At least two men on death row had their sentences changed to life in prison after the ruling, and on Tuesday, the Court of Criminal Appeals halted an execution set for June 21 because of the Moore case. The judges sent the case of Clifton Williams back to a lower court to look into claims of intellectual disability given the Supreme Court ruling.

Though Moore will remain on the row in solitary confinement, it seems unlikely he will get an execution date set while Ogg, a Democrat elected in 2016, is in office. Execution dates are set by convicting county courts after appeals have been exhausted, usually prompted by the district attorney’s office. And Ogg asked the Court of Criminal Appeals to change Moore’s sentence to life in prison last November, agreeing that he was intellectually disabled. Ogg did not answer a question from The Texas Tribune about seeking an execution date for Moore. Instead, she said in an emailed statement Wednesday afternoon that she anticipated the court’s decision to use “correct scientific standards” would immediately be applied to assess intellectual disability claims of other death row inmates, without mentioning Moore at all.

The 35-page majority opinion in Ex parte Bobby James Moore is available here, the 67-page dissenting opinion is available here.

June 7, 2018 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

June 6, 2018

Reviewing the Supreme Court's work in sentence modification cases of Hughes and Koons

So much of interest has already happened this week, I almost forgot that on Monday the Supreme Court resolved two of the most notable sentencing cases on its docket this Term.  (Sentencing fans still have Rosales-Mireles v. United States on plain error review of sentencing errors and Chavez-Meza v. United States on required sentencing explanations to keep our interest the next few Mondays.)  Helpfully, I have seen on line a few reviews and round-ups of Hughes and Koons, and I figured it would be useful to link here:

June 6, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Kimme’s accomplishment: Prez Trump commutes LWOP sentence of Alice Johnson!!

Only a week after an in-person meeting with Prez Trump, Kim Kardashian West can and should be credited with getting President Donald Trump to do something bold and consequential with his clemency power.  This official White House statement explains:

Today, President Donald J. Trump granted a commutation to Alice Marie Johnson, a 63-year-old great-grandmother who has served almost 22 years in Federal prison for a first-time criminal offense.

Ms. Johnson has accepted responsibility for her past behavior and has been a model prisoner over the past two decades.  Despite receiving a life sentence, Alice worked hard to rehabilitate herself in prison, and act as a mentor to her fellow inmates.  Her Warden, Case Manager, and Vocational Training Instructor have all written letters in support of her clemency.  According to her Warden, Arcala Washington-Adduci, “since [Ms. Johnson’s] arrival at this institution, she has exhibited outstanding and exemplary work ethic. She is considered to be a model inmate who is willing to go above and beyond in all work tasks.”

While this Administration will always be very tough on crime, it believes that those who have paid their debt to society and worked hard to better themselves while in prison deserve a second chance.

I give Prez Trump a lot of credit for now moving beyond seemingly politically-motivated clemencies on to seemingly celebrity-motivated clemencies.  Excitingly, this CNN report today, headlined "Exclusive: Trump considers dozens of new pardons," reports that the Trump Administration "has prepared the pardoning paperwork for at least 30 people," which means we might soon get a lot more than just political-celebrity-buzz-worthy grants. 

As we anticipate even more clemency action, I hope someone makes sure to tell Prez Trump that he is now still 1713 commutations (including 567 LWOP sentences) behind President Barack Obama's modern records.  As this accounting highlights, Prez Obama, after a slow start, became the modern pace setter for federal clemency.  Here is hoping that Prez Trump will look to break Prez Obama's record.

Especially amusing among the stories covering all these clemency developments is this new Splinter piece (which predates the grant to Ms. Johnson).  It is titled "Donald Trump is Reportedly Torn Between Kim Kardashian and John Kelly," and it starts this way:

Picture if you will a befuddled Donald Trump. On one shoulder is a tiny Kim Kardashian angel. A tiny John Kelly devil is perched on the other. Both Kelly and Kardashian begin whispering their advice into the president’s ears.

That, essentially, is what is apparently taking place at the White House, as Trump mulls a pardon for 63-year-old Alice Johnson—a great-grandmother currently serving out a life sentence in prison for a non-violent drug-related conviction—following Kardashian’s high profile oval office visit in late May.

Oh how I wish I had the computer graphics skills to turn this imagined Kimme/Kelly shoulder debate into the gif that keeps on giving, especially now that we know how it turned out.

A few of many recent related posts about Trumpian clemency activity:

June 6, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Drug Offense Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (21)

Judge Aaron Persky recalled by voters in response to lenient sentencing of Brock Turner

As reported in this Fox News piece, "Northern California residents on Tuesday voted to recall the judge who sentenced a former Stanford University swimmer convicted of sexual assault to a short jail sentence instead of prison." Here is more:

Voters opted to oust Santa Clara County Judge Aaron Persky. He was targeted for recall in June 2016 shortly after he sentenced Brock Turner to six months in jail for sexually assaulting a young woman outside a fraternity house on campus. Prosecutors argued for a 7-year prison sentence. Turner was instead sentenced to six months in jail for sexually assaulting a young woman outside a fraternity house on campus. Critics say Turner's sentece was too lenient.

Persky maintained that he had followed a recommendation from the county probation department. The California Commission on Judicial Performance ruled that the case was handled legally.

The case gained national prominence after the victim read a statement in court before Turner's sentence. The statement made the rounds online and was read on the floor of the U.S. Capitol during a congressional session.... Michele Dauber, a Stanford University professor who led the recall effort, said the election "expresses clearly that sexual assault, sexual violence is serious and it has to be taken seriously by elected officials.” She added: "It's a historical moment when women across all sectors of society are standing up saying enough is enough."

Persky's supporters said his removal set a dangerous precedent. LaDoris Cordell, a former Santa Clara County judge who led a counter campaign against the recall, called the decision "a sad day for the California judiciary." Cordell added, that the vote implies if judges don't concede to popular opinion, "they can lose their job."

Persky has served on the court since 2003. He declined The Associated Press' request for comment late Tuesday. Assistant District Attorney Cindy Hendrickson will serve the last four years of Persky's term, the San Francisco Chronicle reported.

I suppose it is fitting that a local judge recalled for a sentence being too lenient gets replace by a local prosecutor.  Regular readers know there have been lots and lots of prior posts here about the Brock Turner case, including posts in which I expressed various concerns about both the lenient sentence Turner received and about the campaign to recall Persky.  Here is a sampling of the prior posts this case has generated:

June 6, 2018 in Elections and sentencing issues in political debates, Race, Class, and Gender, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

June 5, 2018

Prez Trump reportedly "obsessed" with pardons and "may sign a dozen or more in the next two months"

The latest dispatch from inside the Beltway on the clemency front comes in the form of this juicy new Washington Post article headlined "Trump fixates on pardons, could soon give reprieve to 63-year-old woman after meeting with Kim Kardashian." The entire article is a must-read, and here are just a few highlights:

President Trump has become fixated on his ability to issue pardons, asking his aides to compile a list of candidates and stirring dissent in the West Wing with his mercurial and seemingly celebrity-driven decisions.

Trump is telling aides that he is now strongly considering pardoning Alice Marie Johnson, a 63-year-old woman serving a life sentence for a nonviolent crime, after meeting with Kim Kardashian last week to discuss her case — a move being resisted by his chief of staff and a top White House lawyer....

A White House official who, like others, spoke on the condition of anonymity said Trump is “obsessed” with pardons, describing them as the president’s new “favorite thing” to talk about. He may sign a dozen or more in the next two months, this person added.

“It’s all part of the show,” said veteran Republican consultant Ed Rollins, a former strategist for a pro-Trump super PAC. “It’s not a rational or traditional process but about celebrity or who they know, or who he sees on ‘Fox & Friends.’ He’s sending the message, ‘I can do whatever I want, and I could certainly pardon someone down the line on the Russia probe.’ ”

The pardon for Johnson could come soon, with the paperwork being finalized Tuesday morning, according to a person familiar with the discussions. Trump’s aides and associates see Kardashian’s celebrity imprimatur as crucial and alluring to the president. But the potential pardon of Johnson has caused consternation in the West Wing, with top advisers — including chief of staff John F. Kelly and White House counsel Donald McGahn — disturbed by the process, according to two people familiar with the discussions.

Kelly has reviewed Johnson’s background and her 1996 conviction — she was sentenced to life in prison on drug possession and money laundering charges — and is not convinced she deserves a pardon, an administration official said. And McGahn has also argued against the possible pardon as an unnecessary action by the president, a second official said.

Jared Kushner, the president’s son-in-law and senior adviser who helped arrange the meeting with Kardashian in the Oval Office last week, has heavily pushed for a pardon for Johnson within the West Wing, these officials said. Kushner attended the meeting between Trump and Kardashian, and having recently had his security clearance reinstated, has been described as newly emboldened by White House aides.

A White House spokesperson said the administration had no current announcements to make on pardons and declined to discuss the specifics of ongoing deliberations....

Trump’s pardons so far have been scattershot, driven by television segments, celebrities, friends and White House advisers who have pressed their cases for pardons that include controversial Sheriff Joe Arpaio, conservative commentator Dinesh D’Souza and Lewis “Scooter” Libby, former chief of staff to Vice President Richard B. Cheney. He also posthumously pardoned heavyweight boxing champion Jack Johnson in May, after being lobbied by actor Sylvester Stallone....

Trump has begun asking friends who else he should pardon, according to an adviser who frequently speaks to the president, and some have offered suggestions. The president has asked McGahn to prepare a list of other pardons for him to consider, administration officials said.

Some people seeking pardons are now making their case on Fox News, the president’s favorite channel, knowing he may be watching. Patti Blagojevich, the former governor’s wife, appeared on “Justice with Judge Jeanine” Saturday night.... On Monday, the wife of former Trump foreign policy adviser George Papadopoulos went on Fox News’ “Tucker Carlson Tonight” and for the first time said she believed Trump should pardon her husband, who pleaded guilty in October to lying to the FBI about Russia contacts during the campaign. Papadopoulos is awaiting sentencing on the felony charge....

The White House is also now weighing whether to grant a presidential pardon to two ranchers from eastern Oregon, Dwight and Steven Hammond, whose 2016 imprisonment on arson charges inspired the 41 day-armed occupation of the Malheur National Wildlife Refuge. Ranching and farming groups, as well as some militia adherents, have pushed for clemency to send a signal that federal officials won’t engage in overreach out West.

The Hammonds’ supporters argue that the two men, originally convicted in 2012 on two counts of arson, shouldn’t have been forced to serve jail time on two separate occasions. While they would have normally served a mandatory minimum sentence of five years, U.S. District Judge Michael Hogan initially gave Dwight Hammond three months and his son Steven a year and a day behind bars. But the government won an appeal over the Hammonds’ sentence in 2015, so they were resentenced to serve out the remaining years of a five-year minimum.

Prior recent related posts about Trumpian clemency activity:

June 5, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

"Open Roads and Overflowing Jails: Addressing High Rates of Rural Pretrial Incarceration"

The title of this post is the title of this new report authored by Marc Levin and Michael Haugen. Here is its executive summary:

The axiom that a person is considered innocent of a criminal act until he or she has been proven guilty is a bedrock principle of the American criminal justice system.  Yet in many jurisdictions, it appears to have been forgotten. The pretrial population of defendants has significantly increased — particularly in rural areas of the country. Jails in smaller jurisdictions are responsible for an outsized share of jail population growth.  Indeed, from 1970 to 2014, jail populations grew by almost sevenfold in small counties but only threefold in large counties.

This paper explores why this growth may have occurred and makes numerous recommendations to reduce pretrial populations, particularly in rural America.  The first place to start is by reducing the number of offenses carrying the potential for arrest and jail time — the overcriminalization of our society must be reversed.  The next step is to restore our historical commitment to individual liberty and the presumption of innocence by following these five guiding principles of pretrial justice policy:

•  There should be a presumption of pretrial release without conditions or cash bond, grounded in the American maxim that people are innocent until proven guilty.

•  Conditions of release, if any, should be the least restrictive to ensure public safety and appearance at trial.

•  Courts — after due process — should have the authority to deny bail in the most serious cases involving highly dangerous defendants after determining that a compelling government interest exists and there are no possible conditions under which the defendant could be released that would reasonably protect public safety and ensure re-appearance.

•  The burden should be on the state to prove the need for conditions of release or denial of bond in an adversarial proceeding where the accused is present.

•  Individual judicial consideration should be required for each accused.

For a host of reasons, ranging from limited resources to dispersed populations, addressing pretrial incarceration in rural areas is a particularly complex undertaking.  Also, there are many moving parts to implementing changes in a deliberate manner that produce sustainable results without unintended consequences.  Ultimately, as rural communities across the country take many different paths to addressing the meteoric rise in rural pretrial incarceration over the last few decades, they must not lose sight of the destination: a constitutional system that produces greater public safety with less collateral damage.

June 5, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Guest post: "The Eleventh Circuit’s Take On Handling The Wave of Dimaya-Related Litigation"

6a00d83451574769e201b7c9134b4d970b-320wiA helpful reader alerted me to an order recently issued by the Eleventh Circuit concerning how it wished to handle prisoner litigation in the wake of the Supreme Court's big recent Dimaya vagueness ruling.  In response, I reached out to the academic rock-star who comes to mind in conjunction with federal habeas litigation, Leah Litman, as she was kind enough to write up this terrific guest post:

In the wake of Sessions v. Dimaya, at least one court of appeals has changed its practice from the post-Johnson days, and happily so.  Even better, that court is the U.S. Court of Appeals for the Eleventh Circuit.

By way of background: Dimaya, like Johnson before it, immediately precipitated a wave of resentencing requests by prisoners seeing to have their sentences corrected in light of the decision. Some of these prisoners were sentenced under statutes that incorporate section 16(b); others were sentenced under statutes that merely resemble section 16(b) (sometimes resembling section 16(b) in every possible way, such as section 924(c)).  Some of these prisoners are seeking to file their first section 2255 motion; others seeking permission to file a second or successive section 2255 motion. 

In a post for the Harvard Law Review blog, I wrote about some of the obstacles that prisoners in these situations will face.  Prisoners seeking to file second or successive 2255 motions face significantly more obstacles than prisoners seeking to file their initial section 2255 motions.  For example, prisoners seeking to file second or successive 2255 motions have to obtain authorization from a court of appeals before they can file in the district court.  And to obtain that authorization, prisoners have to show not only that the decision on which they are relying is retroactive, but that the Supreme Court has made it retroactive.  By contrast, prisoners seeking to file their initial section 2255 motions have to show only that the decision on which they are relying is retroactive.   

In the post-Johnson litigation, the U.S. Court of Appeals for the Eleventh Circuit adopted an approach under which it would adjudicate all section 2255 motions relying on Johnson.  It maintained that approach even after the Supreme Court had granted certiorari in Welch to decide whether Johnson is retroactive (the Court likely granted certiorari in Welch just to make Johnson retroactive).  It also maintained that same approach after the Court granted certiorari in Beckles to decide whether an analogous provision in the U.S. Sentencing Guidelines was also unconstitutionally void for vagueness.

The Eleventh Circuit’s case-management decision was fairly high stakes, as I explained in this essay in the Northwestern Law Review with Shakeer Rahman and in this Take Care post with Lark Turner.  For one thing, processing defendant’s initial section 2255 motions would push defendants’ cases toward second or successive 2255 motions, at which the obstacles to recovery would be greater.  Processing so many section 2255 motions in short order also risked losing cases in the fray, particularly given that defendants have no constitutional right to counsel in their section 2255 motions.  Moreover, the Eleventh Circuit had also interpreted section 2244 to require it to dismiss any claim in a second or successive 2255 motion that had been presented in a previous petition.   The Eleventh Circuit’s practice was also contrary to the other circuits:  In In re Embry, the U.S. Court of Appeals for the Sixth Circuit, in a decision by Judge Sutton, explained why holding cases in abeyance of Beckles made the most sense.  Other courts of appeals did the same.

In the wake of Dimaya, the U.S. Court of Appeals for the Eleventh Circuit has brought its practices into line with other circuits.  The Eleventh Circuit issued an order (“General Order 43”) in which it ordered all second or successive 2255 motions involving section 924(c) to be held in abeyance for the Eleventh Circuit’s decision in Ovalles v. United States.  The Eleventh Circuit took Ovalles en banc to decide whether section 924(c) is unconstitutionally void for vagueness in light of Dimaya (the court ordered briefing on whether courts must use the categorical approach to interpret section 924(c), but General Order 43 recognizes the court will decide the constitutionality of section 924(c) as part of the case).   Thus, Ovalles is to Dimaya as Beckles was to Johnson:  Both cases will or would decide whether an analogous provision is unconstitutionally vague in light of the preceding Supreme Court decision.  But whereas the Eleventh Circuit refused to hold cases in abeyance for Beckles, it is doing so for Ovalles.

I am not exactly optimistic that the Eleventh Circuit is going to invalidate section 924(c) in light of Dimaya.  I think the Eleventh Circuit is likely to hold that courts need not use the categorical approach when interpreting section 924(c), and distinguish section 924(c) from 16(b) on that basis.

Nonetheless, I think a rare kudos is appropriate here for the Eleventh Circuit’s decision in General Order 43.  By electing to hold cases for Ovalles, the Eleventh Circuit is avoiding unnecessary duplication in litigation, which would waste everyone’s (the courts, public defenders, and litigants) time.  It is also avoiding generating a slew of unfavorable precedents for defendants:  In the wake of Johnson, the Eleventh Circuit disposed of many Guidelines cases by holding that the defendant’s prior convictions qualified as violent felonies under the enumerated offense or element of force clauses, even assuming the Guideline’s residual clause was vague.   Doing so ensured that the court’s decisions would be insulated from having to go through another round of review in the event the Supreme Court ultimately held the Guideline unconstitutionally vague.  But it also generated a ton of unfavorable precedent to the defendants, without argument and even without full briefing, given that that is how courts of appeals dispose of requests to file second or successive motions.  By changing course and holding cases for Ovalles, the Eleventh Circuit is avoiding repeating the same error.  And that’s something, these days.

June 5, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences? | Permalink | Comments (5)

Prison Policy Initiative reports on "States of Incarceration: The Global Context 2018" and "States of Women’s Incarceration: The Global Context 2018"

NATO_OH_2018A pair of new reports from the Prison Policy Initiative compares US states to 166 countries on incarceration in order to highlight how each state relies on prisons and jails relative to the rest of the world. These report are titled "States of Incarceration: The Global Context 2018" and "States of Women’s Incarceration: The Global Context 2018." Here are snippets from the first (and clicking through to see the graphics is a must for both):

Oklahoma now has the highest incarceration rate in the U.S., unseating Louisiana from its long-held position as “the world’s prison capital.”  By comparison, states like New York and Massachusetts appear progressive, but even these states lock people up at higher rates than nearly every other country on earth . Compared to the rest of the world, every U.S. state relies too heavily on prisons and jails to respond to crime....

If we imagine every state as an independent nation, ... every state appears extreme.  23 states would have the highest incarceration rate in the world — higher even than the United States.  Massachusetts, the state with the lowest incarceration rate in the nation, would rank 9th in the world, just below Brazil and followed closely by countries like Belarus, Turkey, Iran, and South Africa.

In fact, many of the countries that rank alongside the least punitive U.S. states, such as Turkmenistan, Thailand, Rwanda, and Russia, have authoritarian governments or have recently experienced large-scale internal armed conflicts.  Others struggle with violent crime on a scale far beyond that in the U.S.: El Salvador, Russia, Panama, Costa Rica, and Brazil all have murder rates more than double that of the U.S.  Yet the U.S., “land of the free,” tops them all....

For four decades, the U.S. has been engaged in a globally unprecedented experiment to make every part of its criminal justice system more expansive and more punitive.  As a result, incarceration has become the nation’s default response to crime, with, for example, 70 percent of convictions resulting in confinement — far more than other developed nations with comparable crime rates.

Today, there is finally serious talk of change, but little action that would bring the United States to an incarceration rate on par with other stable democracies.  The incremental changes made in recent years aren’t enough to counteract the bad policy choices built up in every state over decades.  For that, all states will have to aim higher, striving to be not just better than the worst U.S. states, but among the most fair and just in the world.

June 5, 2018 in Prisons and prisoners, Scope of Imprisonment, Sentencing around the world, Who Sentences? | Permalink | Comments (2)

Is all the recent Trump clemency action creating (unhealthy?) excitement among federal prisoners?

The question in the title of this post is prompted by this lengthy Washington Examiner article headlined "Alan Dershowitz says anyone can get clemency from Trump, as buzz builds behind bars." Here are excerpts:

President Trump issued his first prison commutation after lunch with Alan Dershowitz. The men talked about Mideast politics before Trump "asked me what else was on my mind, and I told him.  I took advantage of the moment,” the longtime Harvard law professor recalled.

Dershowitz told the president about Sholom Rubashkin, a kosher meatpacking executive who was seven years into a 27-year prison sentence for financial crimes. Not long after, Rubashkin in December became the first — and so far only — person Trump released from prison. "You have to appeal to his sense of injustice," said Dershowitz, who often says on TV that Trump is treated unfairly in special counsel Robert Mueller’s Russia probe. "He feels he is now being subject to injustice, and so he's very sensitive to injustices."

Trump's approach to clemency, exhibited with a flurry of recent statements and official actions, is markedly different from his recent predecessors, generating enormous excitement among inmates.  Dershowitz believes just about anyone has a shot at bending Trump's ear, even though most successful cases have been pushed by well-connected advocates.   "I think if you write a letter to the president and you set down the case in a compassionate way, I think his staff knows that he's looking for cases of injustice. But you have to write it in a compelling way,” he said. “They have to write something that will catch the attention of someone on the president's staff."

So far, Trump has issued one prison commutation and five pardons.  But the pace is quickening.  Last week, he posthumously pardoned boxer Jack Johnson at the behest of “Rocky” actor Sylvester Stallone, saying Johnson’s early 1900s conviction was a race-motivated injustice.  On Wednesday, Trump met in the Oval Office with celebrity Kim Kardashian, who lobbied him to release Alice Johnson, a grandmother jailed for life since 1996 on drug-dealing charges.  Early on Thursday, Trump tweeted that he would pardon conservative author Dinesh D'Souza, who pleaded guilty in 2014 to a campaign-finance felony. Hours later, Trump told reporters he was considering pardoning celebrity chef Martha Stewart and former Gov. Rod Blagojevich, the Illinois Democrat who allegedly tried to sell President Barack Obama's Senate seat.

Although Johnson has not been given clemency, she remains optimistic.  “I'm feeling very hopeful after speaking with Kim about how well the meeting went with President Trump,” Johnson said in an email from prison Friday, facilitated by her longtime supporter Amy Povah, who leads the CAN-DO Foundation....  “I have strong reason to believe that President Trump is going to surprise many people,” said Povah...

Dershowitz said there's a method to the apparent madness of Trump’s clemency grants, which are a sharp break from the early-term stinginess of his recent predecessors. "You have to make him say to himself, 'There but for the grace of God go I, or other people I identify with.' He has to feel the injustice. It's not enough to get online with hundreds of other people showing a law was misapplied. There has to be a sense of gut injustice,” he said....

If there’s anyone who would know Trump’s thinking on clemency, it’s Dershowitz. In addition to pushing Rubashkin’s release, he was consulted by Trump in advance of the recent pardons of D'Souza and I. Lewis "Scooter" Libby, a former aide to Vice President Dick Cheney who was convicted in 2007 but never imprisoned for making false statements. “I said I thought they were both injustices, that there was a whiff of politics around the decision to prosecute D’Souza, and that I did not think Scooter Libby had committed perjury — I thought there was just a difference in recollection,” Dershowitz said.

"When I made the appeal on behalf of Rubashkin, I said, 'You are a businessman, you understand what happens when the government and prosecutors manipulate the system and lower the value of your company in order to increase the value of losses and increase the sentence.' As soon as I said that, he said, 'I get that. I get that. I've been there,’” Dershowitz said. "He immediately glommed onto it because he understood the business implications of it ... there wouldn't have been any losses, or minor losses, but because the government drove the price down, it drove the sentencing guidelines way up."...

“I've always thought President Trump would step up and finish the job that President Obama started but never completed,” said Michelle West, a clemency aspirant in prison for drug-related crimes since 1994. “My daughter, Miquelle West, went to the Obama White House for a clemency summit. In our wildest dreams we never thought that I would be passed over considering she was invited to attend.” West said in an email relayed by Povah that “my daughter was 10 when I went to prison and I pray President Trump will consider me worthy of a second chance.”

Crystal Munoz, 11 years into a 20-year sentence for dealing marijuana, said that she, too, was hopeful, sending Povah the draft of a letter for Trump. Munoz, 38, gave birth to her youngest child in prison.  Connie Farris, a 73-year-old inmate jailed for mail fraud, said "I will never, never give up hope that our president will start releasing women such as myself and others. Please President Trump hear our cry." Farris, seven years into a 12-year sentence, said her husband of 53 years suffers from muscular dystrophy and needs her support.

Although there’s significant hope stemming from Trump’s unconventional approach, there’s also some skepticism that everyday inmates can win a presidential reprieve. “The problem is, the president’s process is a little haphazard, it seems, and a little ad hoc. And then you have this completely Byzantine dead-end of a process at the Justice Department,” said Kevin Ring, president of Families Against Mandatory Minimums.

“I think people are encouraged that he’s going around the Justice Department to look at deserving cases, but it’s not clear that anybody has the ability to get in front of him — so sort of good news, bad news,” he said.  Ring said Dershowitz’s contention that anyone can win clemency with a letter is “a little naive.”  

“There are people who buy lottery tickets every Friday and they’re optimistic because they don’t know the odds. And when people see a winner, that gives them hope,” he said.

Like Kevin Ring, I am a bit concerned to hear that there may be "enormous excitement among inmates" given Prez Trump's clemency record to date.  He has only commuted a single sentence so far, and I have no reason to believe he has plans to start issuing dozens (let along hundreds) of additional commutations anytime soon.  Political realities has seemed to be influencing all of Prez Trump's clemency work to date, and precious few federal prisoner have political forces in their favor.  I sure hope Prez Trump will, as Amy Povah put it, "surprise many people," but I think hopes ought to be tempered for now.

Prior recent related posts about Trumpian clemency activity:

June 5, 2018 in Clemency and Pardons, Collateral consequences, Criminal justice in the Trump Administration, Who Sentences? | Permalink | Comments (7)

Noticing a shrinking (but still functioning) death penalty in Georgia

The Atlanta Journal-Constitution has this notable new article headlined "Death sentences becoming increasingly rare in Georgia."  Here are excerpts, with a few remarkable lines highlighted:

The Georgia Supreme Court on Monday did something it once did on a fairly routine basis but now hardly ever does: It heard a death-penalty appeal. It had been almost two years since the court heard a direct appeal — the first appeal after a capital sentence is imposed — in a death-penalty case. And this once-unthinkable rarity shouldn’t change anytime soon.  It’s now been more than four years since a Georgia jury handed down a death sentence.

This is in keeping with what’s been going on nationally. Last year, 39 death sentences were imposed nationwide.  That’s a dramatic drop from 126 capital sentences imposed a decade earlier and from 295 death sentences imposed in 1998, according to the Death Penalty Information Center in Washington.

National polls show the death penalty is losing public support, said Pete Skandalakis, executive director of the Prosecuting Attorneys’ Council of Georgia.  That’s because people are becoming increasingly comfortable with the sentencing option of life in prison without the possibility of parole....

The last time a death sentence was handed down by a Georgia jury was March 2014 in Augusta against Adrian Hargrove, who committed a triple murder.  Last year, the two death cases that went to trial in Georgia involved the murder of law enforcement officers — a crime that traditionally results in a death penalty.  Yet both resulted in sentences of life without parole.

More often than not, district attorneys are now allowing capital defendants to enter guilty pleas in exchange for life-without-parole sentences.  “It’s a self-fulfilling prophesy,” Gwinnett County District Attorney Danny Porter said. “As more and more juries give fewer death sentences, prosecutors begin to think it’s not worth the effort.”  Even so, it’s not time to remove the death penalty as a sentencing option, Porter said. “I think there are still cases where there’s just no question that death is the proper punishment.”...

Opponents to capital punishment have traditionally been aligned with liberal causes. More recently, increasing numbers of conservatives are speaking out against it. Heather Beaudoin, national coordinator of Conservatives Concerned about the Death Penalty, said her primary concerns are the number of exonerations that have been disclosed over the years and the possibility of executing an innocent person. “We have a problem on our hands,” she said....

Beaudoin founded Conservatives Concerned about the Death Penalty in Montana in 2010. Five years ago, it became a national organization and has chapters in 13 states, including one in Georgia. “Many of our supporters are millennials who are pro-life like I am,” she said. “We believe that life is created by God and has value no matter what the circumstances are. Even someone who has committed an awful crime — that life has value.”

After four years without a death sentence, Georgia’s capital defender office is attracting national recognition. The capital defender’s office is part of the state’s public defender system and represents capital defendants who can’t afford their own lawyers.  The office’s intervention program, in which capital defenders seek plea deals from prosecutors early on in a case, has helped more than 20 defendants avoid a death-penalty trial, Jerry Word, who heads the defender office, said.  “The average time to resolve a case in early intervention has been less than eight months,” Word said. “The average time to get a case to trial is over three years. This results in a saving in court time and dollar savings to the state and county.”

I am not sure it would be entirely accurate to assert that a state has a well-functioning death penalty system if nobody gets sentenced to death. But I do think it is accurate to say that the death penalty is playing an important role in Georgia's criminal justice system: the mere possibility of capital charges seems to be essential to helping poor murder defendants get high-quality representation early in a case and also to helping the most wrenching cases get resolved within a matter of months.

June 5, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

June 4, 2018

Calling Professor Pfaff: Attorney General Sessions announces 311 new Assistant United States Attorney positions

Though there are many elements and nuances to the teachings of Professor John Pfaff, I think of him first and foremost for the notion that, when concerned about modern mass incarceration, we all ought to pay a lot more attention to the role and work of prosecutors and ought to focus a lot more on how we handle violent crime and criminals.  Thus, I could not help but think of the fine Professor upon seeing this official press release today from the Department of Justice. 

Here is the press release's full title: "On the 500th Day of the Trump Administration, Attorney General Sessions Announces 311 New Assistant United States Attorney Positions: Largest Increase in AUSAs in Decades Allocates Prosecutors to Focus on Violent Crime, Civil Enforcement, and Immigration Crimes."  Here is its full text:  

Today, on the 500th day of the Trump Administration, Attorney General Jeff Sessions announced that the Department of Justice is taking a dramatic step to increase resources to combat violent crime, enforce our immigration laws, and help roll back the devastating opioid crisis.  In the largest increase in decades, the Department of Justice is allocating 311 new Assistant United States Attorneys to assist in priority areas.  Those allocations are as follows: 190 violent crime prosecutors, 86 civil enforcement prosecutors, and 35 additional immigration prosecutors.  Many of the civil enforcement AUSA’s will support the newly created Prescription Interdiction & Litigation Task Force which targets the opioid crisis at every level of the distribution system.

"Under President Trump's strong leadership, the Department of Justice is going on offense against violent crime, illegal immigration, and the opioid crisis — and today we are sending in reinforcements," said Attorney General Jeff Sessions.  "We have a saying in my office that a new federal prosecutor is 'the coin of the realm.'  When we can eliminate wasteful spending, one of my first questions to my staff is if we can deploy more prosecutors to where they are needed. I have personally worked to re-purpose existing funds to support this critical mission, and as a former federal prosecutor myself, my expectations could not be higher. These exceptional and talented prosecutors are key leaders in our crime fighting partnership.  This addition of new Assistant U.S. Attorney positions represents the largest increase in decades."

The statements that this is the largest increase in federal prosecutors in decades leads me to wonder, based largely on Professor Pfaff's work, if this personnel development may be more consequential to defining the future size and composition of the federal prison population than any statutory sentencing reform and prison reform bills being considered in Congress.  

June 4, 2018 in Criminal justice in the Trump Administration, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

Many hundreds of federal prisoners surely thrilled by Hughes, but thousands surely disappointed by Koons

As I mentioned in this post a few months ago around the time of SCOTUS oral argument, a lot of federal prisoners had a lot of interest in the two sentence modification cases on the SCOTUS docket.  Now that we have decisions in the sentence modification cases of Hughes and Koons (basics here), a bit of (too) simple accounting seems in order.

Helpfully, Table 8 of the US Sentencing Commission's latest report on retroactive application of the reduction of the drug guidelines reports that 781 prisoners have been denied a sentence reduction "because of binding plea" (the issue in Hughes) and that 3070 prisoners have been denied a sentence reduction because "mandatory minimum controls sentence."  Though these numbers are not the full universe of who might be impacted by these rulings, it does suggest that, speaking quantitatively, these rulings were a bigger win for federal prosecutors than for federal defendants.

Prior related post:

June 4, 2018 in Data on sentencing, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

Supreme Court delivers split decision for federal defendants in sentence modification cases of Hughes and Koons

Though the Supreme Court's ruling today about wedding cakes is sure to be what is most remembered from the first set of June 2018 opinions, the Court gave sentencing fans a lot to review with opinions in Hughes v. United States and Koons v. United StatesThe opinion in Hughes v. United States, No. 17–155 (S. Ct. June 4, 2018) (available here), will be a disappointment to some SCOTUS-watchers because the Court avoided addressing the Marks rule concerning fractured opinions.  But Hughes will not be a disappointment those sentencing fans who will be excited to see that Justice Gorsuch joined a majority opinion authored by Justice Kennedy in favor of a broad interpretation of who is eligible for sentence modification under retroactive guideline reductions. The opinion in Koons v. United States, No. 17- 5716 (S. Ct. June 4, 2018) (available here), was a unanimous opinoin authored by Justice Alito, which informed readers likely know means it federal prosecutors prevailed.

Here are some key sentences from the Hughes majority:

To resolve the uncertainty that resulted from this Court’s Opinion of the Court divided decision in Freeman, the Court now holds that a sentence imposed pursuant to a Type-C agreement is “based on” the defendant’s Guidelines range so long as that range was part of the framework the district court relied on in imposing the sentence or accepting the agreement....

This interpretation furthers §3582(c)(2)’s purpose, as well as the broader purposes of the Sentencing Reform Act.  “The Act aims to create a comprehensive sentencing scheme in which those who commit crimes of similar severity under similar conditions receive similar sentences.” Freeman, 564 U.S., at 533. “Section 3582(c)(2) contributes to that goal by ensuring that district courts may adjust sentences imposed pursuant to a range that the Commission concludes [is] too severe, out of step with the seriousness of the crime and the sentencing ranges of analogous offenses, and inconsistent with the Act’s purposes.” Ibid.  And there is no reason a defendant’s eligibility for relief should turn on the form of his plea agreement.

Here is the start of the unanimous (and very short) Koons opinion:

Under 18 U. S. C. §3582(c)(2), a defendant is eligible for a sentence reduction if he was initially sentenced “based on a sentencing range” that was later lowered by the United States Sentencing Commission.  The five petitioners in today’s case claim to be eligible under this provision.  They were convicted of drug offenses that carried statutory mandatory minimum sentences, but they received sentences below these mandatory minimums, as another statute allows, because they substantially assisted the Government in prosecuting other drug offenders.  We hold that petitioners’ sentences were “based on” their mandatory minimums and on their substantial assistance to the Government, not on sentencing ranges that the Commission later lowered. Petitioners are therefore ineligible for §3582(c)(2) sentence reductions.

June 4, 2018 in Drug Offense Sentencing, Federal Sentencing Guidelines, New crack statute and the FSA's impact, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Justice Sotomayor delivers lengthy dissent from denial of cert in Texas capital case concerning ineffective assistance of counsel

This morning's Supreme Court order list yet again lacks any grants of certiorari, but it does not lack some other interesting happenings.  The list includes a per curiam resolution of a dispute over access to abortion by undocumented teens in US custody that is sure to get the most attention. And a denial of cert in a capital case from Texas, Trevino v. Davis, may also generate some buzz because of a long dissent by Justice Sotomayor, joined by Justice Ginsburg. Here is a snippet from the start and close of this 13-page dissent:

When the Court of Appeals for the Fifth Circuit ultimately considered whether Trevino was prejudiced by his trial counsel’s failure to investigate and present evidence of his fetal alcohol spectrum disorder (FASD), the panel majority did not properly “reweigh the evidence in aggravation against the totality of available mitigating evidence.”  Wiggins v. Smith, 539 U.S. 510, 534 (2003).  Rather, the majority dismissed the new FASD evidence because it purportedly created a “significant double-edged problem” in that it had both mitigating and aggravating aspects, and stopped its analysis short without reweighing the totality of all the evidence.  861 F.3d 545, 551 (2017).  That truncated approach is in direct contravention of this Court’s precedent, which has long recognized that a court cannot simply conclude that new evidence in aggravation cancels out new evidence in mitigation; the true impact of new evidence, both aggravating and mitigating, can only be understood by asking how the jury would have considered that evidence in light of what it already knew.

Although this Court is not usually in the business of error correction, this case warrants our intervention and summary disposition.  I respectfully dissent from the Court’s refusal to correct the Fifth Circuit’s flagrant error....

The Fifth Circuit majority plainly misapplied our precedents.  Absent intervention from this Court to correct that error, Trevino remains subject to a death sentence having received inadequate consideration of his claim of ineffective assistance of trial counsel, and with no jury having fairly appraised the substantial new mitigating evidence that a competent counsel would have discovered.  That result is indefensible, especially where our failure to intervene sanctions the taking of a life by the state.

June 4, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

June 3, 2018

Lots worth reading on eve of historic recall vote of Califorinia Judge Aaron Persky after his lenient treatment of Brock Turner

Regular readers surely already know a lot of the story and backstory surrounding the controversial sentencing of Brock Turner and the controversial recall campaign against the judge who sentenced him.  That recall campaign culminates in a vote this coming Tuesday, and that has prompted another notable round of media coverage.  Here are some recent media pieces with varying degrees of depth:

From CNN here, "Will voters bench the judge who gave a 6-month sentence in the Stanford sexual assault case?"

From the Los Angeles Times here, "Vandalism, threats, broken friendships: The heated campaign to recall judge in Brock Turner case"

From Vox here, "Brock Turner was sentenced to 6 months in jail for sexual assault. Now voters may recall the judge."

From HuffPost here, "When the Punishment Feels Like A Crime: Brock Turner's twisted legacy — and a Stanford professor's relentless pursuit of justice."

I would especially encourage readers to find the time to read the lengthy HuffPost piece, which is particularly focused around Stanford Law Professor Michele Dauber's work on the recall campaign.  The reporting in the piece stuck me as particularly thoughtful and balanced, and I learned new things big and small about the campaign and her efforts and goals.

Despite all this new reporting, I must note my own sense that there are still lots of angles on this case that are still not getting fully explored.  In particular, these articles and others only give passing mention of the fact that Turner was sentenced to a lifetime on the sex offender registry.  I have long speculated that this reality — which I believe was mandatory for his convictions — not only may have largely accounted for Judge Persky's short jail sentence, but also may have been a main reason Turner was unwilling to plead guilty and accept responsibility in the way the victim wished.  Ever since BuzzFeed published the full courtroom statement of Turner's victim (available here and recommended reading), I have always been struck by this passage: "Had Brock admitted guilt and remorse and offered to settle early on, I would have considered a lighter sentence, respecting his honesty, grateful to be able to move our lives forward. Instead he took the risk of going to trial, added insult to injury and forced me to relive the hurt as details about my personal life and sexual assault were brutally dissected before the public."   This passage still has me wondering about what kind of plea had been offered to Turner and whether the prospect of a lifetime on the sex offender registry was central to his decision to go to trial.

The CNN article linked above does make one (possibly overstated) point about the sex offender registry part of his punishment: "That's a penalty so burdensome that if Turner were to have children someday, he wouldn't be able to get near their school."  Of course, being on the registry for life means a whole lot more, too.  I continue to wonder not only if that reality influenced Judge Persky, but if other judges in California or around the nation regularly adjust their prison terms knowing the severe impact of the collateral consequences of sex offender registration.  I hear stories all the time of prosecutors and defense attorneys looking to "charge or plea around" particular crimes that carry sex offender registration or other severe collateral consequences.  If these collateral sanctions influence attorneys, surely they influence sentencing judges in various settings in various ways.  I would love to see more reporting on this element of the Turner case and Judge Persky's decision-making (recalling that Persky himself has been a state sex crimes prosecuot).  But perhaps only a sentencing nerd like me really cares all that much about this part of the story. 

In any event, readers can gear up for the recall election also by reviewing a number of prior posts here about the Brock Turner case.  I think it is fair to say that in these posts I have expressed various concerns about both the lenient sentence Turner received and about the campaign to recall Judge Persky.  Here is just a sampling of the prior posts this case has generated:

June 3, 2018 in Collateral consequences, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (9)

"Equal Protection Under the Carceral State"

The title of this post is the title of this new article authored by Aya Gruber now available via SSRN.  Here is its abstract:

McCleskey v. Kemp, the case that upheld the death penalty despite undeniable evidence of its racially disparate impact, is indelibly marked by Justice William Brennan’s phrase, “a fear of too much justice.” The popular interpretation of this phrase is that the Supreme Court harbored what I call a “disparity-claim fear,” dreading a future docket of racial discrimination claims and erecting an impossibly high bar for proving an equal protection violation. A related interpretation is that the majority had a “color-consciousness fear” of remedying discrimination through race-remedial policies.  In contrast to these conventional views, I argue that the primary anxiety exhibited by the McCleskey majority was a “leniency fear” of death penalty abolition. Opinion author Justice Lewis Powell made clear his view that execution was the appropriate punishment for McCleskey’s crime and expressed worry that McCleskey’s victory would open the door to challenges of criminal sentences more generally. 

Understanding that the Court’s primary political sensitivity was to state penal authority, not racial hierarchy, complicates the progressive sentiment that McCleskey’s call-to-action is securing equality of punishment. Derrick Bell’s “interest convergence” theory predicts that even conservatives with an aversion to robust equal protection law will accept racial-disparity evidence when in the service of crime-control values.  Indeed, Justice Powell may have been more sanguine about McCleskey’s discrimination claim had mandatory capital punishment been an option.  Accordingly, I caution that, outside of the death penalty context, courts and lawmakers can address perceived punishment disparities through “level-up” remedies, such as mandatory minimum sentences or abolishing diversion (which is said to favor white defendants).  There are numerous examples of convergence between antidiscrimination and prosecutorial interests, including mandatory sentencing guidelines, aggressive domestic violence policing and prosecution, and the movement to abolish Stand-Your-Ground laws.

June 3, 2018 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (1)