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June 16, 2018

Paul Manifort has bail revoked ... and has not (yet) gotten rescued from jail by Prez Trump's clemency pen

As detailed in this CNN piece, a very prominent federal defendant grew the number of Americans incarcerated yesterday when he had his bail revoked and was taken immediately to jail:

Former Trump campaign chairman Paul Manafort will await his trial for foreign lobbying charges from jail.  Two weeks after special counsel Robert Mueller's prosecutors dropped new accusations of witness tampering on him, US District Judge Amy Berman Jackson on Friday revoked Manafort's bail, which had allowed him to live in his Alexandria, Virginia, apartment under house arrest.

The order marked an end to almost eight months of attempts by Manafort to lighten his house arrest restrictions after he was charged and pleaded not guilty to foreign lobbying violations. "The harm in this case is harm to the administration of justice and harm to the integrity of the court's system," Berman Jackson told Manafort in court.

The judge emphasized to Manafort how she could not make enough rulings to keep him from speaking improperly with witnesses, after he had used multiple text messaging apps and called a potential witness on an Italian cellphone.  "This is not middle school. I can't take his cellphone," she said of Manafort.  "I thought about this long and hard, Mr. Manafort. I have no appetite for this."

Manafort also entered a not guilty plea to two additional charges levied against him last week, of witness tampering and conspiracy to obstruct justice. In total, he faces seven criminal charges in DC federal court. Three US marshals led Manafort out of the packed courtroom into the prisoner holding area immediately after the judge's ruling. He was not placed in handcuffs. Before he disappeared through the door, he turned toward his wife and supporters and gave a stilted wave.

Minutes later, a marshal returned to give Manafort's wife, Kathleen, still standing in the courtroom's front row, his wallet, belt and the burgundy tie he wore Friday. Court marshals held Manafort in the bowels of the courthouse for several hours following the hearing as they considered how to keep him protected from other inmates behind bars. He arrived about 8 p.m. at the Northern Neck Regional Jail in Warsaw, Virginia, 90 miles south of Washington.

In a tweet, President Donald Trump said the decision to revoke Manafort's bail was "tough," although he referred to it as a "sentence."

I cannot help but recall in this context the decision by Prez George W. Bush, made just under 11 years ago as reported here, to commute the entire prison sentence of I. Lewis "Scooter" Libby to spare him from having to serve his 30 month prison term after his conviction in the CIA leak case.  Notably, Prez Bush's clemency grant came down just a few hours after the DC Circuit refused to allow Libby to remain free on bail during the appeal of his conviction and sentence.  In other words, as soon as Libby was subject to spending even an hour incarcerated, Prez Bush was moved to act to keep him free.  Paul Manafort, notably, has not (yet) gotten the presidential consideration as he has now already spent one (of likely many) nights in jail without even yet having been convicted of anything.  

June 16, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (8)

"Disclosing Prosecutorial Misconduct"

I just came across this article authored by Jason Kreag available via SSRN.  Here is its abstract:

Prosecutorial misconduct in the form of Brady violations continues to plague the criminal justice system.  Brady misconduct represents a fundamental breakdown in the adversarial process, denying defendants a fair trial and undermining the legitimacy of the system.  Commentators have responded by proposing a range of reforms to increase Brady compliance going forward.  Yet these reforms have largely ignored the need to remedy the harms from past Brady violations.  Furthermore, these proposals focus almost entirely on the harms defendants face from prosecutors’ Brady misconduct, ignoring the harms victims, jurors, witnesses, and others endure.

This Article proposes a new remedy to supplement the current responses to Brady misconduct: the Brady Violation Disclosure Letter.  It proposes sending a concise letter documenting the misconduct to the relevant stakeholders who participated in the initial trial that was corrupted by a Brady violation.  This disclosure is a partial remedy for the range of harms Brady violations create.  It also promises to increase Brady compliance and to promote transparency in a criminal justice system that is increasingly opaque. Importantly, this proposal can be implemented immediately without adopting new rules or statutes and without expanding Brady’s exiting constitutional protections.

June 16, 2018 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

June 15, 2018

Some state highlights from Marijuana Law, Policy & Reform

It has been nearly two months since I did a full round-up of posts of note from the blogging I do over at Marijuana Law, Policy & Reform, but I have this week highlighted a few of many recent posts on federal marijuana reform developments and on marijuana expungement activities.  Because I am likely to be off line for all of Friday, I will head into the weekend by here doing a round-up of recent state marijuana reform postings from MLP&R (in alphabetical order):

June 15, 2018 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Any predictions on sentencing day for Senator Rand Paul's attacker? UPDATE: Boucher got 30 days in jail and 100 hours community service

Friday finally brings judgment day for Dr. Rene Boucher, the neighbor of Senator Rand Paul, who strangely decided to violently tackle Senator Paul while he was mowing his lawn last fall.  As reported in this local article, headlined "Defense attorney in Paul tackling case makes pitch for probation," the defendant is hoping to avoid any period of incarceration:

Dr. Rene Boucher, who admitted guilt to a federal crime in a case involving the tackling of U.S. Sen. Rand Paul outside the lawmaker’s home, has formally requested to be placed on probation. Attorney Matt Baker, representing Boucher, filed a 10-page memorandum [last] Friday in U.S. District Court arguing that incarceration for the retired physician would serve no useful purpose.

Boucher, 60, pleaded guilty in March to a count of assaulting a member of Congress resulting in personal injury. His sentencing, before Special Judge Marianne Battani, is set for June 15.

Special Prosecutor Bradley Shepard has recommended a 21-month prison sentence for Boucher, but Baker argues probation is more appropriate “based upon the rather unique nature of the offense” and several extenuating circumstances. “Other than the isolated incident that is in issue, Dr. Boucher has been a pillar of his community, a solid citizen, a family man and a devout Christian,” Baker stated in his memorandum, which also stressed Boucher’s lack of a criminal history and his service in the U.S. Army and in the community as a physician.

A neck injury sustained in a bicycle accident forced Boucher, a specialist in pain management and anesthesiology, to retire from practicing medicine, according to court records. Accompanying the sentencing memorandum are 14 letters supporting Boucher and extolling his character.

Baker’s filing offers context into what led to the Nov. 3 incident in the Rivergreen subdivision, where Paul and Boucher are neighbors. On that date, Paul was tackled outside his residence while doing yardwork. Boucher told law enforcement that he ran onto the senator’s property and tackled Paul after he witnessed Paul stack brush on top of a pile near Boucher’s property.

Baker’s filing makes the case that the roots of the tackling incident could be traced to summer 2017, when Boucher trimmed the limbs on a few maple trees on the property line dividing the Boucher and Paul properties....

The memorandum filed Friday quotes what Baker said is a victim impact statement from Paul filed May 21 in which the senator says he “can only assume that (Boucher’s) deep-seated anger towards me co-mingles with his hatred of my political policies” and states that Boucher must be suffering from a “personality disorder, substance abuse, intense political hatred or all of the above.”

Baker called those allegations “completely unfounded.” “Dr. Boucher has adamantly denied any such political motivations throughout, as even the suggestion of them is completely unfounded and simply not true,” Baker said.

In an emailed statement to the Daily News on Tuesday, Paul's communications director, Kelsey Cooper, took issue with some of Baker's characterizations of the neighbors' relationship. "Before Senator Paul was violently attacked from behind, he had no conversations or discussions with the attacker," Cooper wrote. "There was no 'longstanding dispute.' This description is untrue. It is impossible to have a dispute when no words of disagreement were ever spoken – neither immediately nor at any other time before the attack occurred. In the decade prior to the attack, Senator Paul had no contact with the attacker.

"The attack was a pre-meditated assault that broke six of the Senator’s ribs and was complicated by fluid and blood around the lung and recurrent pneumonia. Any description of this attack that implies a 'yard dispute' justifies such violence and misses the point."

I am inclined to predict that Boucher will get some period of incarceration, but less than the 21 months sought by federal prosecutors.  I will guess the term will be somewhere between six months and a year-and-a-day.  But this really a guess, especially given that I have not been able to find a copy of the sentencing filings available on-line, nor have I seen any guideline calculations.

In this prior post about this case, I encouraged readers to suggest what sentence they thought fitting for Senator Rand Paul's attacker. I welcome additional comments on what folks think Boucher will and should get.

Prior related post:

UPDATE: This press piece reports on the sentencing outcome, and starts this way:

The neighbor who admitted to attacking U.S. Senator Rand Paul outside his home last fall was sentenced Friday in U.S. District Court in Bowling Green to 30 days in jail. Rene Boucher was also ordered to serve one year of supervised release, perform 100 hours of community service, and have no intentional contact with the Paul family.

Boucher addressed the court and offered an apology to the Republican lawmaker who sustained broken ribs and other injuries after being tackled from behind while mowing his lawn on November 3. "What I did was wrong and I hope he and his family can one day accept my apology," Boucher said.

Boucher, who pleaded guilty to assaulting a member of Congress, expressed embarrassment and described the last seven months as a "nightmare." The 60-year-old retired anesthesiologist said he lost his temper over repeated piles of debris on the property line between his home and Paul's in the upscale Rivergreen subdivision in Bowling Green.

Assistant U.S. Attorney Brad Shepherd asked the judge for a 21-month prison term, arguing that Boucher didn't simply lose his temper. "This was a vicious, unprovoked assault," Shepherd said.

June 15, 2018 in Booker in district courts, Celebrity sentencings | Permalink | Comments (7)

June 14, 2018

Kentucky Supreme Court finds state's statute for assessing intellectually disability in capital cases does not comply with Eighth Amendment

As reported in this local article, the "Kentucky Supreme Court ruled Thursday that the state's practice for determining if someone is intellectually disabled and not eligible to receive the death penalty is “unconstitutional” and has established new guidelines."  Here is more about the ruling:

The order changing Kentucky’s rules on capital punishment came in the case of Robert Keith Woodall, who was sentenced to death for raping and killing a 16-year-old girl in Greenville two decades ago. The high court ordered a lower court to hold a hearing to determine if Woodall is intellectually disabled, preventing him from being executed.

It is unconstitutional to sentence a mentally disabled person to death – which has been defined in Kentucky as someone with an IQ below 70. However, Kentucky's high court ruled a person cannot be found intellectually disabled simply because they have an IQ of 71 or above. Instead, the justices determined defendants must undergo a “totality of the circumstances test,” including whether they have the ability to learn basic skills and adjust their behavior to circumstances, among other guidelines.

Those standards are in line with guidelines established by the U.S. Supreme Court that take other factors into account, according to the ruling. The federal court, for example, bars states from using a single, strict IQ standard to determine a prisoner's death penalty status.

In its ruling, the Kentucky high court found the state's current law to be “an outdated test for ascertaining intellectually disability." Kentucky was one of only a few states still using the fixed score cutoff to determine mental disability.

The full ruling from the Kentucky Supreme Court is available at this link, and here are few key paragraphs from the majority opinion:

Admittedly, the U.S. Supreme-Court has not provided crystal-clear guidance as to what exactly constitutes a constitutional violation regarding the determination of whether a defendant is intellectually disabled to preclude the imposition of the death penalty.  It is also true that the U.S. Supreme Court seems to suggest that a defendant's IQ score, after adjusting for statistical error, acts as the preliminary inquiry that could foreclose consideration of other evidence of intellectual disability, depending on the score.

Two things are clear, however: 1) regardless of some of the statements the U.S. Supreme Court has made, the prevailing tone of the U.S. Supreme Court's examination of this issue suggests that a determination based solely on IQ score, even after proper statistical-error adjustments have been made, is highly suspect; and 2) prevailing medical standards should be the basis for a determination as to a defendant's intellectual disability to preclude the imposition of the death penalty.

June 14, 2018 in Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Sixth Circuit panel struggles to figure out Tennessee law to assess Miller challenge in high-profile case

As reported in this local article, headlined "While considering Cyntoia Brown's case, appeals court scrutinizes conflicting sentencing laws," an interesting federal circuit panel struggled during oral argument today to sort through applicable state sentencing law in an interesting Eighth Amendment habeas case. Here are the details:

A federal appeals court seems poised to consult the Tennessee Supreme Court before they rule on the case of Cyntoia Brown, a Nashville woman serving a life sentence in prison for a murder she committed at 16.  Brown's attorneys this year appealed to the Sixth Circuit Court of Appeals in Cincinnati, arguing her life sentence was unconstitutional. The U.S. Supreme Court ruled in 2012 that giving juveniles life sentences without parole was cruel and unusual in most cases.

Brown, now 30, has been locked up since 2004, when she was convicted of shooting 43-year-old Nashville real estate agent Johnny Allen. Allen had picked her up at an East Nashville fast food restaurant and drove her to his home.  Prosecutors said she committed a cold blooded murder, then robbed Allen before she fled with his car. Advocates for Brown say she was a victim of child sex trafficking who feared for her life, and that her age and fetal alcohol syndrome made it impossible for her to consider the full ramifications of her actions.

Attorneys representing the state have argued the 2012 ruling from the U.S. Supreme Court does not apply in Brown's case because she is not serving a true life sentence. They cite parts of Tennessee law that suggest Brown could be eligible for release after 51 years behind bars.  The three-judge panel in Cincinnati suggested at multiple points that if she was serving a 51-year sentence, the U.S. Supreme Court ruling might not apply.

But Brown's attorneys pushed back, citing another section of the law that says "there shall be no release eligibility" for offenders convicted of first degree murder, like she was. Thorny questions on sentencing law in Tennessee dominated the debate on both sides of the oral arguments Thursday morning, which lasted less than an hour....

At multiple points, the judges read directly from contradictory passages in Tennessee code, as they tried to decipher what portions applied to Brown's case. They suggested that they might seek clarification from the Tennessee Supreme Court before moving forward.  Judge Joan L. Larsen, who was appointed by President Donald Trump, asked multiple questions about the proper way to do so.

Judge Amul Thapar, another Trump appointee, aggressively questioned the argument from state attorneys that case law had established a way to cherry pick parts of Tennessee sentencing law to apply to Brown while ignoring other parts. Thapar rubbed his face and shook his head while questioning attorneys on dueling sections of the law. "We're trying to guess what Tennessee is doing here," Thapar said, later adding, "The way I read this statute is that she's got life without the possibility of parole."

The Tennessee Court of Criminal Appeals has already sided with the state on this issue, saying that Brown's sentence is not entirely for life.  But Brown's attorneys say the Tennessee Court of Appeals issued a conflicting ruling.

Judge Julia Smith Gibbons, who was appointed by former President George W. Bush, said she couldn't believe a Tennessee court hadn't issued a definitive ruling on the appropriate reading of the sentencing law.  Gibbons said Brown's case "raises some interesting, tricky issues."

If the panel does ask the Tennessee Supreme Court to clarify sentencing in this case, that court could decide whether or not it would offer an answer. The appeals court would then take the response into consideration while ruling on the broader case.  "Can we certify that to the Tennessee Supreme Court and ask them?" Thapar said.  "If they're ever going to answer one question that's the one to answer."...

The judges did not address the argument from Brown's attorneys that she should not be held responsible for a premeditated murder at 16 because fetal alcohol syndrome had slowed her mental development.

The pending federal appeal is one of multiple tracks Brown's attorneys are pursuing in their high-profile attempt to get her out of prison.  Brown also is asking Gov. Bill Haslam for clemency; the state parole board made conflicting recommendations to the governor after a hearing in May. Brown's previous appeals have been denied.  But a surge of interest from news outlets, celebrities and national legal groups has galvanized efforts that are unusual for a case like hers.

Brown was featured in the documentary "Me Facing Life: Cyntoia's Story" by filmmaker Dan Birman. In 2016, a joint reporting project on juvenile sentencing laws by the USA TODAY NETWORK - Tennessee, Dan H. Birman Productions and "Independent Lens" explored Brown's trial and conviction in depth.  Then, in 2017, celebrities including Rihanna and Kim Kardashian West called for Brown's release, dramatically increasing the scrutiny of the case.  On social media, the hashtag #FreeCyntoiaBrown went viral.

June 14, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"Kim Kardashian West pushes White House for more drug sentence commutations"

Because the Supreme Court decided this morning not to decided any of the five remaining criminal law cases on its docket for this Term, I am left to blogging some more about clemency developments.  On that front, the breaking news came through the Today show, which led to this NBC News article with the headline that I have used for the title of this post.  Here are excerpts from the article (with emphasis added):

Kim Kardashian West has given the White House reports on several other nonviolent criminal offenders for possible commutation after she persuaded President Donald Trump to commute the sentence of Alice Marie Johnson, she told "Today" in an exclusive joint interview with Johnson.

Kardashian West said she "saw compassion" when she met with Trump, who as recently as March promised to "seek the death penalty against drug traffickers, where appropriate under current law." "I saw a different side," Kardashian West said Wednesday. "And I think that this is just the beginning of something greater. ... The reality is people change their mind."...

Kardashian West, the star of several reality TV shows and the wife of music superstar Kanye West, visited Trump at the White House with her attorney in late May to plead for Johnson's release, pointing to corrections officers' assessment of her as a model prisoner who became an ordained minister...

In the interview — during which the two women met in person for the first time — Kardashian West said she had assembled a large legal team and was pursuing clemency for several other nonviolent offenders — whose cases she said she has forwarded to the White House for review. "This is like, 'OK, we did this,'" Kardashian West said. "Let's open up this conversation."

Johnson said that because of Kardashian West's advocacy, "the Red Sea has opened" for possible leniency for nonviolent drug offenders, a campaign she said she intends to be part of. "I plan on continuing to magnify this issue," Johnson said. "I'm just an example, but I'm not the only one.

"There are so many others like me whose faces are not here, who are not sitting next to a war angel, who deserve clemency as much as I did and who deserve another chance in life," she said. "And I can't stop. I can't stop."

Regular readers are likely tired of seeing me recall that, way back in 2010, I urged Prez Obama to structurally change the federal clemency system in this law review article.  At the end of that article, I urged the President "to seriously consider creating some form of a 'Clemency Commission' headed by a 'clemency czar' ... [in the form of] an expert body, headed by a special designated official, who is primarily tasked with helping federal officials (and perhaps also state officials) improve the functioning, transparency, and public respect for executive clemency. "  I will be the first one to say that I could never have expected, eight years later during a Donald Trump presidency, that we would have a  Kim Kardashian West emerging as a de facto "clemency czar" serving with a "large legal team" operating as a de facto "Clemency Commission."

Simply put, we live in interesting times.

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

June 14, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

"The New Dynamics of Mass Incarceration"

Download (15)The title of this post is the title of this notable new publication from The Vera Institute of Justice.   Here is much of its introduction:

After decades of continuous growth, the United States’ prison population began to plateau in the new millennium as the nation entered an era of criminal justice reform aimed at lowering the footprint of incarceration.  This seemed to herald the beginning of the end for mass incarceration.  Since 2007, when the country hit a peak of nearly 800 people in prison per 100,000 working age adults — over 1.6 million people total — overall prison incarceration has declined by about 1 percent on average each year.  The new downward trajectory of incarceration in the United States has paralleled a reckoning with the mounting costs of confinement and a growing awareness that incarceration in America was — in the words of a 2014 National Research Council report — “historically unprecedented and internationally unique,” and did not have the promised impact on public safety. (See “A brief history of mass incarceration: From unified growth to an era of reform” at page 8.)

Legislative and policy reforms have not brought a swift reversal of mass incarceration, however.  Even prison population trends — long used as convenient barometer of criminal justice reform’s progress — show that unwinding the nation’s overreliance on incarceration will be a longterm endeavor.  At the current pace, it will be 149 years until U.S. prison incarceration rates are as low as they were in 1970. (See Figure 1 at page 6.)

At the same time, while aggregated national prison population data indicates slow decline, it cannot be the sole indicator used to measure the progress made in the nation’s recent efforts to reduce incarceration.  Prison populations are slow to change after the implementation of most policy or practice changes, and thus provide an inadequate metric by which to measure and adjust the immediate impact of reforms — or regressive legislation.  Furthermore, a reliance on aggregate prison data fails to acknowledge or measure the tremendous variation in incarceration trends from state to state and within states, and ignores a significant locus of incarceration: local jails — county- or municipally-run facilities that primarily hold people arrested but not yet convicted of a crime.  For example, while much of the country is locking fewer people in jails and prisons, Kentucky is doing the opposite. If jails and prisons continue to grow in Kentucky as they have since 2000, everyone in the state will be incarcerated in 113 years. A comprehensive look at disparately reported metrics for the nation’s 50 state prison systems and 2,872 local jail jurisdictions is necessary to more accurately account for the headway made thus far in reversing mass incarceration.

To accomplish this goal, this report proposes a wider set of metrics by which to analyze incarceration trends to supplement the old standard of state prison population: 1) prison admissions; 2) jail admissions, 3) pretrial jail populations and 4) sentenced jail populations.  When considered together, this combination of metrics better captures the complexity of contemporary incarceration trends at the state and local level, makes the patterns that underlie national statistics discernable, and provides a starting point for deeper investigation into the particular context of individual counties’ justice systems....

As this report will discuss, studying all the moving parts of the incarceration system reveals a more messy truth: that there is no single way to characterize the current state of mass incarceration. A single trend of unified growth across states and counties, and in both prison and jail incarceration, characterized mass incarceration’s rise. But that has fragmented into four distinct incarceration trends, depending on how and where incarceration is measured:

  • some jurisdictions have seen meaningful overall declines in both prison and jail incarceration; 
  • others have seen stagnation at high incarceration rates; 
  • still others have seen shifts between prisons and jails in place of real reductions to the footprint of incarceration; and 
  • some have seen unchecked growth.
Ultimately, unwinding mass incarceration will require the particular alchemy of data-driven policy and political will, sustained by pressure from grassroots advocates and litigation. But only by acknowledging the realities in thousands of jurisdictions across the country can researchers, policymakers, and the public identify where reform is still only a promise and target attention and resources to drive change. Without understanding how local jail populations and county-level prison admissions have evolved over time, it will be difficult to have a real sense of how state and local systems are interacting, which problems to solve, or if progress is being made at all.

This new Mother Jones article about this new Vera report sums up its takeway via its extended headline: "The Era of Mass Incarceration Isn’t Over. This New Report Shows Why. 'Mass incarceration has a different face.'"

June 14, 2018 in Prisons and prisoners, Recommended reading, Scope of Imprisonment | Permalink | Comments (2)

Lamenting the ripples of Judge Persky's recall

John Pfaff has authored this recent Washington Post commentary under the full headline "California ousts an elected judge. Everybody loses. The recall of Aaron Persky in the Stanford swimmer sexual assault case will make judges harsher, and thwart progress on perils of mass incarceration."  Here are excerpts (and readers should click through to the original for the multitude of links supporting the various points presented):

California voters last week recalled a judge for the first time in more than 85 years.  The politics of punishment are already pathological; the recall will make them worse.... As an academic who studies criminal justice, I have opposed the recall effort since I first heard about it because of potential consequences that reach well past Persky’s now-former courtroom: The recall will make judges more punitive, thwart progress toward scaling back mass incarceration and — though Turner and Persky are both white — hurt minorities disproportionately.

A central reason the United States punishes its citizens more than any other country is that actors in our criminal justice system face more political pressure than they do elsewhere.  Only this country allows judges to be elected, which 39 states choose to do. It’s a consistent theme: We are also the only country that elects its prosecutors. While a concern in the Andrew Jackson era about corrupt appointment processes drove the decision to elect judges, more recent concerns about the costs of a politicized judiciary have led to increasing calls to return to appointing them.

In criminal justice, the costs of politicization are unambiguous: They make judges more punitive.  The empirical studies on judges and crime tell a consistent story.  Judges sentence more aggressively as their election dates near and as their elections become more contested.  Elections make judges nervous, and nervous judges are harsh judges.

This harshness is entirely logical.  Judges are harsh because the costs of mistakes are asymmetric.  There is little downside to harsh sanctions, because the error costs are invisible: How do you show that someone would not have reoffended had they left prison sooner?  The costs of being overly lenient, however, are inescapable.  That sort of failure produces an identifiable victim for political opponents to capitalize upon.

The recall turned on a slightly different asymmetry but one that equally pushes judges toward severity. An overly lenient sentence will be seen as insulting the victim, while an overly harsh one will be seen as unfair to the defendant.  The former error, as the Persky recall demonstrates, is costlier (unless, perhaps, the defendant is politically powerful).

Defenders of the recall dismiss this concern by pointing out that recalls are rare. But the lesson here isn’t only about recalls.  The Persky case makes clear to judges and their detractors alike that judges can lose their jobs — in a recall, in a primary, in a general election — if just one or two decisions anger someone with sufficient political capital to oppose them.  The Persky recall campaign highlighted only five decisions out of thousands that the judge handed down.  Persky was cleared of any wrongdoing by California’s Commission on Judicial Performance, and public defenders in Santa Clara were quick to argue that he was a fair judge.  Even the prosecutor in Santa Clara opposed the recall. [Professor Michele] Dauber, however, is a politically well-connected professor at a nationally acclaimed law school with strong media ties.  The success of her campaign tells judges, and the politically powerful who are unhappy with their decisions, that these campaigns can work even with little evidence, as long as there are one or two bad cases to point to.

The recall’s political costs are already apparent.  Not only did Democratic legislators pass new mandatory minimum sentences for sex offenses in response to the recall to make sure they looked tough enough on crime, but public defenders in California also report that judges seem harsher now, out of fear of being targeted next.

Some defenders of the recall concede that it may make judges harsher, but only regarding sex crimes.  The judges, they say, are smart enough to limit what they have learned to the facts of the recall. But this is overly optimistic. Judges have no idea what issue will trigger the next recall or primary challenge, only that such campaigns can work....

The recall will make judges more aggressive, and in ways that will never be neatly confined to the issues in the Turner and Persky cases.  More people will be sent to prison, and that increase won’t make us safer. And since a majority of people in prison are black or Hispanic, the impact of this toughness will fall disproportionately on minorities.  For those hoping to see the United States become a less punitive place, the recall’s success is disappointing.

A few of many prior posts on the Persky recall:

June 14, 2018 in Scope of Imprisonment, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (6)

June 13, 2018

Another notable report on clemency suggesting Prez Trump will be "pardoning a lot of people — pardons that even Obama wouldn’t do"

Vanity Fair is not usually my go-to source for sentencing news, but this new piece includes both White House gossip and a closing paragraph that suggest a lot of sentence news with be forthcoming from that building. The full headline of the piece reveals some of the gossip: "“He Hate, Hate, Hates It”: Sessions Fumes As Kushner Gets Pardon Fever; With Kim Kardashian and liberals like Van Jones, the princely Trump son-in-law is trying to reset his reputation. But not everyone in the administration is happy about it."   And here are the most sentencing-specific parts of the piece:

In recent months, Kushner has cultivated a close relationship with CNN host and criminal-justice reform advocate Van Jones. “Jared is obsessed with Van,” one Trump adviser said. Kushner invited Jones to the White House multiple times and the two communicate frequently, Jones told me. “Jared and I have 99 problems but prison ain’t one,” Jones said. “I’ve found him to be effective, straightforward, and dogged.” Jones has lavished praise on Kushner publicly. In January, Jones wrote a CNN op-ed headlined, “Kushner’s effort to sway Trump on prison reform is smart.”

The Kushner-Jones alliance has infuriated some Republican members of the administration, especially Attorney General Jeff Sessions. “He hate, hate, hates it,” a person close to Sessions said. But Sessions, who is hanging on for survival amidst frequent Trump attacks, has no power to move against Kushner. Sources say Trump may even like that Sessions is outraged because Trump is looking for anything that will get Sessions to quit so he can appoint an attorney general who isn’t recused in the Russia investigation. (The White House did not respond to a request for comment.)

Jones told me Trump liked the positive media coverage that followed his pardon of Alice Johnson at the urging of Kardashian and Kushner. “Trump was pleasantly surprised,” Jones said. “I hope the president feels encouraged to do more.”

One person who recently spoke with Kushner said the president’s son-in-law is gearing up for a big pardon push. The source said Kardashian gave Kushner a list of people to pardon, some of whom are hip-hop artists. “They’re going to be pardoning a lot of people—pardons that even Obama wouldn’t do,” the person said.

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

June 13, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (1)

Notable new analysis of US incarceration levels and recent (modest) changes

Ted Gest over at The Crime Report has this details summary of an even more detailed analysis of US incarceration levels and their changes in recent years. The summary is headlined "Incarceration Decrease? Drop in Prison Numbers Called ‘Anemic’," and here are excerpts:

Although the US prison population has declined over six years, after increasing for nearly four decades, a new analysis by researcher Malcolm C. Young, published by the Center for Community Alternatives, concludes that the nation is not reducing prison populations at a pace that would end mass incarceration in the foreseeable future.

A report issued in January by the Bureau of Justice Statistics of data through 2016 found that prison populations decreased in 33 states that year — more states than had experienced decreases in any recent year. The average decrease was three percent. In 42 states, prison populations were lower than they had been recently.  Just eight states increased their prison populations to record high numbers.

The downturn it documented, while perhaps marking the beginning of an end to three-and-a-half decades of increases, “is anemic to the point of listlessness,” says Young, a longtime advocate of cutting prison populations. If the numbers of inmates continue to decrease only at the rate they did between 2014 and2016, there will still be more than a million people incarcerated in prison in 2042. The nation wouldn’t reach the goal of groups like #Cut50.org to reduce prison populations to half of what they are today for another 50 years, until 2068.

Moreover, the current rate of decrease may not hold, according to Young. The prospects for a more rapid de-incarceration are poor unless and until many more states use strategies that have been effective in the handful of states that are significantly reducing prison numbers, Young believes....

Young found that prospects that most of the 13 states responsible for much of the national decrease will continue to reduce their prison populations are good. For example, Massachusetts has the second-lowest incarceration rate in the nation (after Maine), and the Vera Institute of Justice predicts further decreases. New Jersey will likely continue to reduce its prison population as a result of pretrial reforms signed by Gov. Chris Christie that took effect last year. In New York State, further decreases are likely if officials can encourage fewer prison commitments from areas outside of New York City.

On the other hand, California, which decreased its prison population by 40,926 in six years to comply with a US Supreme Court ruling, increased its prison population in 2016 by 0.9 percent. California corrections officials predict an annual 0.8 percent increase in coming years. In Illinois, Gov. Bruce Rauner cut the prison population, incurring little opposition from the same Republicans who savaged his Democratic predecessor’s more modest efforts. Were he to lose his bid for reelection, it is not a given that a Democratic administration would carry his plan forward.

Since 2010, Texas decreased its prison population by 6,749 (4.1 percent). Prospects that the trend will continue are iffy because state legislators have been considering new sentencing enhancements.

Young found that decreases in the 14 states that have demonstrated a capacity to reduce prison populations have been “episodic.” Recently enacted reforms have encountered opposition. In Louisiana, advocates have been concerned that legislators will roll back recently enacted reforms designed to reduce incarceration. In Utah, reforms that relied on treatment and housing programs are at risk because of a lack of funding for alternative programs. In Florida, legislative reforms have not led to the reductions in prison populations for which advocates hoped....

Young calls for reexamining the effectiveness of prison-reduction strategies. “[Hopes to] to end mass incarceration can’t be grounded in a fiction that an annual one percent reduction in prisoners will get us anywhere, or that limited successes in a few jurisdictions will end mass incarceration in the country as whole.”

His report contends that national, state and local officials should turn for guidance to states that have achieved significant, lasting reductions in prison incarceration and steer clear of approaches that have failed to produce results.

Malcolm Young's full report, which is titled Prisoners in 2016 and the Prospects for an End to Mass Incarceration, is available at this link.

June 13, 2018 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

"The Impact of Proposition 47 on Crime and Recidivism"

ImagesThe title of this post is the title of this notable new report from the Public Policy Institute of California. Here is the report's conclusion:

Proposition 47 continues to be the subject of much debate.  The reform — which reduced penalties for certain lower-level drug and property offenses — has undoubtedly played a significant role in California’s recent efforts to prioritize the state’s prison and jail space for higher-level offenders. Prison and jail incarceration levels declined substantially under Prop 47.  We also observe sudden drops in arrests and jail bookings.

The reduced reliance on incarceration raised concerns among some observers about Prop 47’s impact on public safety. We find no convincing evidence that violent crime increased as a result of Prop 47.  Though there has been a recent uptick in violent crime, this trend appears to have started prior to the reform. Additional factors unrelated to criminal activity — a change by the FBI in 2014 that expanded the definition of rape, and significant under-reporting of violent crimes from 2008 to 2014 by the LAPD — contributed to the observed increase.  Excluding violent crime data from the LAPD shows that recent increases in violent crime rates in California were comparable to those of similar states.

Our analysis does find some evidence of Prop 47’s impact on property crime rates, which went up immediately after the law was implemented.  This increase has been primarily driven by larceny thefts, particularly thefts from motor vehicles and shoplifting.  We find the increase in the larceny theft rate in California to be nearly 9 percent higher than that of similar states. In 2016, reported shoplifting decreased notably, but we do not see signs of a reduction in thefts from motor vehicles. Considering the high costs of incarceration in California, this highlights the need for alternative crime-reducing strategies, consistent with our earlier research assessing the impact of realignment on crime (see Lofstrom and Raphael 2013).

The policy goals of Prop 47 are to reduce contact with the criminal justice system and to reduce recidivism for lower-level drug and property offenders.  Our analysis, using detailed data from 12 California counties, shows declines in jail bookings as well as rearrest and reconviction rates under Prop 47.  We find the policy change reduced jail bookings for Prop 47 offenses by more than one-third.  Prop 47 also lowered the number of people booked into jail by nearly 50,000 in these counties during the year following its passage.

Lower rearrest rates for individuals released after serving sentences for Prop 47 offenses were driven by a reduction in rearrests for drug possession, while lower reconviction rates were driven by a drop in reconvictions for both Prop 47 property and drug offenses.  We find evidence that Prop 47 reduced both arrests by law enforcement and convictions resulting from prosecutions by district attorneys.  Reduced levels of correctional contact — which may allow for better continuity of employment and improved family and community stability — could be a factor in these lower recidivism rates.  However, given the sudden and noticeable decline in arrests after the reform, we are not able to separate the effects of Prop 47 on individual reoffending behavior from its effects on the practices of criminal justice agencies.

Prop 47 aimed to reduce recidivism rates by shifting resources from incarceration to mental health and substance-use treatment for lower-level drug and property offenders.  This redirection of state correctional savings to treatment interventions has only recently been allocated, and thus our recidivism analysis does not capture individuals released after the implementation of these programs.  A complete assessment of the impacts of Prop 47 will need to account for how increased interventions may affect crime, criminal justice contact, and recidivism, as well as responses by law enforcement to the reform.

Substantial reductions in reoffending as a result of the treatment programs funded by Prop 47 savings seem unlikely as this funding represents a very small share of corrections spending in California.  However, the initiative offers opportunities for local agencies to create or expand promising programs.  It also requires that these programs be objectively evaluated, in hopes of identifying and scaling up successful interventions. As local agencies and the state learn more about which programs are effective in reducing recidivism, Prop 47 could provide a path toward the use of more cost-effective, evidence-based strategies within the criminal justice system.

One of several far-reaching corrections reforms, Prop 47 further decreased California’s reliance on incarceration: the state’s incarceration rate is now at levels not seen since the early 1990s.  Importantly, crime rates remain historically low, comparable to those in the 1960s.  While research so far has not revealed convincing evidence that violent crime has risen as a result of reforms, some property crimes have increased.  And though Prop 47 reduced recidivism rates for lower-level drug and property offenses, it is not clear to what extent this is driven by reduced reoffending, as law enforcement and prosecutorial changes likely contributed to the declines.  To counteract the increases in property crimes like shoplifting and thefts from motor vehicles — and to improve reentry outcomes of released offenders — policymakers and practitioners will need to work together to identify effective programs and policies that will reduce recidivism and maintain public safety

June 13, 2018 in National and State Crime Data, Offense Characteristics, Procedure and Proof at Sentencing, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (0)

"When Tribal Disenrollment Becomes Cruel and Unusual"

The title of this post is the title of this new article available on SSRN authored by Judith Stinson. Here is the abstract:

In the past two decades, Native American tribes have disenrolled — permanently removed from tribal citizenship — thousands of tribal members, mainly because of lineage concerns or for political reasons.  In these instances, scholars generally decry disenrollment.  But there is a growing trend to disenroll tribal citizens for criminal conduct, and scholars (and even tribal members themselves) assume this is proper.  This paper argues that tribal disenrollment for criminal conduct violates the Indian Civil Rights Act’s prohibition on cruel and unusual punishment.

The Supreme Court held that denationalization as a result of criminal conduct is cruel and unusual punishment in violation of the Eighth Amendment.  Congress applied that same prohibition to Native American tribes in the Indian Civil Rights Act.  And traditionally, tribes, who had the inherent power to impose any sanction necessary, focused on restoring harmony rather than punishing offenders; permanent expulsion was almost never imposed.  Tribes are nations, and tribal membership is a voluntary compact equivalent in all meaningful respects to United States citizenship — hence, tribes cannot disenroll members for criminal behavior.  Yet Congress also severely limited tribes’ ability to punish criminal defendants by capping incarceration at one year, and crime in Indian country is a significant problem.  To allow tribes to battle crime and yet protect against cruel and unusual punishment, Congress should remove the limit on incarceration and individual tribal members can decide whether they are willing to submit to their tribe’s inherent power — and greater sentences — or voluntarily renounce their tribal citizenship.

June 13, 2018 in Collateral consequences, Criminal Sentences Alternatives, Sentences Reconsidered | Permalink | Comments (3)

Brennan Center provides a "Final Analysis" of crime in big cities in 2017

The Brennan Center for Justice has released this short document titled "Crime in 2017: Final Analysis" reporting on the  rates of violent crime, murder, and overall crime in the 30 largest American cities.  Here is the start of the document: 

In this final analysis of crime rates in 2017, the Brennan Center finds an overall decline in rates of violent crime, murder, and overall crime in the 30 largest American cities, though homicide rates in some cities remain above 2015 levels.

The data reported here refine an initial report released in September, Crime in 2017: A Preliminary Analysis, which concluded by noting that “these findings directly undercut any claim that the nation is experiencing a crime wave.”  A December update reached the same conclusion, showing rates of crime, violent crime, and homicide all declining. 

Updated Tables 1 and 2 show conclusions similar to the Brennan Center’s September and December reports, with slightly different percentages:

    •  The overall crime rate in the 30 largest cities in 2017 declined slightly from the previous year, falling by 2.1 percent to remain at historic lows.

    •  The violent crime rate declined as well, falling by 1 percent from 2016, essentially remaining stable. Violent crime remains near the bottom of the nation’s 30-year downward trend.

    •  The 2017 murder rate in the 30 largest cities declined by 3.4 percent year-over-year.  Large decreases in Chicago and Houston, as well as small decreases in other cities, contributed to this decline.  The murder rate in Chicago, which increased significantly in 2015 and 2016, declined by 12.3 percent in 2017, but remains more than 60 percent above 2014 levels.  The murder rate in Houston fell by nearly 17 percent.  New York City’s murder rate also declined again, to 3.4 killings per 100,000 people.

    •  Some cities saw their murder rates rise in 2017, such as Baltimore (7.8 percent) and Philadelphia (13.1 percent).  These increases suggest a need to better understand how and why murder is increasing in some cities.  While Las Vegas saw its murder rate rise significantly, by 23.5 percent, this was due to the mass shooting at Mandalay Bay on Oct. 1, 2017.

June 13, 2018 in National and State Crime Data | Permalink | Comments (1)

June 12, 2018

"Possession's not enough: Expunge all weed convictions"

Legal Marijuana Oregon Measure 91The title of this post is the headline of this recent editorial from the Newark Star-Ledger.  Regular readers likely know I take a shine to this opinion piece because of my recent work on a recent article, "Leveraging Marijuana Reform to Enhance Expungement Practices,"  which call for jurisdictions to take an expansive approach to expungement when moving forward with marijuana prohibition reforms.  Here are excerpts from the editorial:

Even as New Jersey is poised to legalize marijuana, the cops are still arresting tens of thousands of people annually, mostly minorities, just for having a little pot. Many can't find work because of the stigma.

Jo Anne Zito was rejected for a job at Godiva chocolates because of a low-level marijuana possession charge, she told lawmakers last week. So, as we contemplate legalizing recreational weed, we need to ask: Does it make sense that people like her still won't be able TO get work at a candy store?

No. We can't legalize marijuana, yet continue to force them to "walk around with a scarlet letter," as Assemblywoman Annette Quijano (D-Union) put it. The answer is expungement. But the current debate is far too limited.

Quijano introduced a bill to allow those caught with a little pot to apply to have their records cleared; advocates argue they shouldn't have to initiate that onerous process, the state should do it automatically. None of this goes far enough.

We need to think big. We need to admit this was a mistake in the first place, and that a lot of decent people were caught up in the dragnet. So, sparing only those who possessed small amounts is really just a first step.

We need to expunge the records of those caught with more than just a little pot. And we need to expunge the records of low-level dealers as well, if a judge approves, as long as they didn't commit more serious crimes like selling to minors, carrying guns, or committing acts of violence.

Aside from cleaning these records, we need to release those currently imprisoned on such charges. Does it make sense to hold thousands of people behind bars for selling weed, while the government allows sales outside the prison walls?...

All states that have legalized pot have only done so for certain amounts. Anyone arrested for possessing more gets a ticket, rather than a criminal charge. Yet if our expungement policy is modeled to match, those previously charged with having any more pot can't get that wiped from their records. They will continue to be barred from employment, even as people who buy heaps of it after legalization are merely ticketed. That needs to be fixed. Expunging high-level dealing charges is likely impossible, for political reasons. But we should at least include intent to sell and lower level distribution and growing charges.

Granted, this is not without risk. A guy who pled down to a marijuana charge from money-laundering, for example, shouldn't get out of doing his time, or a criminal record. But we could include prosecutorial review, as a bill moving through California's legislature would. It requires the state to automatically dismiss any old marijuana charges, yet prosecutors would sift through the higher-level cases and contest them if necessary. California already allows many past pot charges to be dismissed or reduced based on a defendant's petition, although they might still surface if you apply for a government job.

Yes, it's a huge undertaking to expunge all these convictions retroactively, especially if our state does so without requiring a petition. But we derailed hundreds of thousands of lives with needless marijuana prosecutions, and nobody helped those people get jobs or find housing. Now we are saying it never should have happened. So let the state overcome the logistical hurdles, too.

Actually, with a little bit of advanced planning and the right infrastructure, it does not necessarily have to be a "huge undertaking" to expunge past marijuana convictions. Indeed, as noted in this post over at my marijuana blog, "Code for America helping with technology to enhance marijuana offense expungement efforts in California pilot program," private players are willing to help in various ways with this effort.

I have blogged a lot about this issue over at my Marijuana Law, Policy and Reform blog, and here is just a sampling of some recent postings:

June 12, 2018 in Collateral consequences, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (0)

Spotlighting lower-court divides over AEDPA's savings clause and consideration of sentencing errors

At the intersection of hard-core habeas and sentencing issues is whether the so-called savings clause of the Antiterrorism and Effective Death Penalty Act can be used by a federal prisoner to get federal court to hear a claim of sentencing error.  The Fourth Circuit yesterday, via this order, refused to reconsider en banc its pro-access ruling on this matter in US v. Wheeler, and two judges wrote separately to spotlight what is at stake.  First, a "Statement of Circuit Judge Agee respecting denial of petition for rehearing en banc" starts this way:

The issues in this case are of significant national importance and are best considered by the Supreme Court at the earliest possible date in order to resolve an existing circuit split that the panel decision broadens even farther.  Because of the potential that the case may become moot if Wheeler is released from incarceration in October 2019, as projected, I have not requested a poll of the Court upon the petition for rehearing en banc in order to expedite the path for the Government to petition for certiorari to the Supreme Court.

The opinion in this case casts 28 U.S.C. § 2255(e) in a way that rewrites the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) — a valid congressional act that falls squarely within Congress’ power to define the scope of the writ.  As a consequence, federal prisoners who are detained in this Circuit pursuant to a valid and final criminal judgment may evade the careful limitations placed by Congress upon the writ of habeas corpus in § 2255(h) and, most likely, § 2255(f) as well.  These prisoners may now file § 2241 petitions challenging their sentences whenever circuit court precedent changes, so long as a given majority decides the change created a fundamental sentencing defect. Among the circuits that have addressed the question of the reach of the § 2255(e) saving clause, we stand alone in this most expansive view.

Only two circuits permit a sentencing-based claim to proceed via the saving clause: the Sixth and Seventh.  Hill v. Masters, 836 F.3d 591 (6th Cir. 2016); Brown v. Caraway, 719 F.3d 583 (7th Cir. 2013).  The opinion here relies on these cases in error, however, because none gives the expansive reference to “fundamental defect” that is put forth here. In short, even those few circuits that have opened the saving clause portal to sentencing-based claims have only opened it wide enough to allow for a claim that the prisoner is being, or at some point will be, detained by the warden beyond the time legally authorized by Congress for his offense of conviction.

Second, a "Statement of Judge Thacker on Petition for Rehearing En Banc" starts this way:

When this court decided United States v. Simmons, 649 F.3d 237 (4th Cir. 2011) (en banc), and rendered it retroactive in Miller v. United States, 735 F.3d 141 (4th Cir. 2013), it became clear that the mandatory minimum for Gerald Wheeler’s sentence was double what it should have been.  But Wheeler was left with a conundrum -- how could he test the legality of his detention?  He had already filed a direct appeal and motion pursuant to 28 U.S.C. § 2255, and he could not meet the requirements to file a second or successive motion because his mandatory minimum was not increased by a new rule of constitutional law made retroactive by the Supreme Court.  See § 2255(h)(2).  Yet he was nonetheless sentenced under the mistaken understanding that ten years was as low as the sentencing court could go. Indeed, that was precisely the sentence he received.  The district court recognized this sentence was “harsh,” but believed that its “hands [we]re . . . tied.” J.A. 85.

The savings clause, set forth in § 2255(e), allows a court to entertain a traditional § 2241 petition for habeas corpus if “the remedy by [§ 2255] motion is inadequate or ineffective to test the legality of [the prisoner’s] detention.”  This circuit, see In re Jones, 226 F.3d 328, 333–34 (4th Cir. 2000), as well as nine other circuits, interpret the savings clause to provide an opportunity for prisoners to demonstrate they are being held under an erroneous application or interpretation of statutory law.  Two circuits, however, read the clause so narrowly that the savings clause may only be satisfied under the limited circumstances when the sentencing court is unavailable, “practical considerations” prevent the prisoner from filing a motion to vacate, or a prisoner’s claim concerns “the execution of his sentence.” McCarthan v. Director of Goodwill Indus., 851 F.3d 1076, 1092–93 (11th Cir. 2017) (en banc); see also Prost v. Anderson, 636 F.3d 578, 587–88 (10th Cir. 2011).

To adopt the minority view and deny Wheeler the chance to test the legality of his detention under the circumstances at hand would fly in the face of the Supreme Court’s pronouncement that “the privilege of habeas corpus entitles the prisoner to a meaningful opportunity to demonstrate that he is being held pursuant to ‘the erroneous application or interpretation’ of relevant law.” Boumediene v. Bush, 553 U.S. 723, 779 (2008) (quoting INS v. St. Cyr, 533 U.S. 289, 302 (2001)).

I am inclined to predict that this issue, if not this case, will be taken up by SCOTUS relatively soon. But I have said this and been wrong before, so maybe I will be blogging in six months saying, "Hey, I was wrong." But I don’t know that I'll ever admit that, but I'll find some kind of an excuse for why my SCOTUS prediction was off.

June 12, 2018 in Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

June 11, 2018

"Trump asks for clemency names and lists promptly arrive at White House"

The title of this post is the headline of this notable new article in the Washington Examiner.  Here are excerpts (with one line stressed for commentary):

President Trump told reporters Friday that he wanted to give clemency to more people treated unfairly by the legal system, particularly cases involving people like Alice Johnson, who he released from a life sentence for drug dealing at the request of Kim Kardashian West.  "I want to do people that are unfairly treated like an Alice," he said before boarding a Marine helicopter on the South Lawn of the White House. Hours later, lists of additional names were hand-delivered to the West Wing.

White House counsel Don McGahn and presidential adviser and son-in-law Jared Kushner sat down for separate meetings with a right-leaning policy advocate who handed them lists of dozens of inmates serving long sentences, according to a person involved in the discussions.

McGahn invited the advocate about a week earlier, requesting names, and seemed to react favorably to the case of Chris Young, a 30-year-old from Tennessee with a life sentence since age 22 for a drug conspiracy, the source said. The sentencing judge called Young's penalty "way out of whack," but said he had no choice.

Young’s name was supplied to the advocate by his attorney Brittany Barnett, who also represented Johnson. Dozens of additional names were supplied by the CAN-DO Foundation, which championed Johnson, as well as Families Against Mandatory Minimums. Topping a list of 20 marijuana inmates assembled by CAN-DO were Michael Pelletier and John Knock, who are serving life sentences for smuggling marijuana and unsuccessfully requested clemency from former President Barack Obama.

Pelletier, a paralyzed inmate, received a life sentence for smuggling pot from Canada into Maine, jurisdictions where the drug is now legal or soon will be. Knock’s sentence inspired his sister Beth Curtis to create the advocacy website LifeforPot.com documenting similar cases. "I will die in prison if President Trump does not commute my sentence," Pelletier recently told the Washington Examiner. "Sometimes, I wonder if I'm dead already because I'm living in hell.”

A list of 17 women and six men prepared by CAN-DO was topped by drug-conspiracy convict Michelle West and mail-fraud inmate Connie Farris, women who recently expressed optimism about Trump’s clemency moves, saying they hoped to rejoin their families....

The advocate who brought lists to the White House received the impression that officials may be considering setting up an internal clemency commission to circumvent or supplement the work of the Justice Department’s Office of the Pardon Attorney.

In his remarks Friday morning, Trump claimed he was reviewing 3,000 names of clemency aspirants and invited football players who claim unfairness in the legal system to submit more names.  It’s unclear if Trump actually has a list of 3,000 names.  It’s possible he was referring to the about 3,000 clemency applications — for pardons and commutations combined — that the Office of the Pardon Attorney received during his administration.  But the OPA, which clemency advocates consider slow and biased, has about 11,000 open cases that rolled over from Obama.

Although Trump referred to a clemency-reviewing “committee” on Friday, a White House official said that clemency petitions currently are being reviewed through the standard process, featuring the pardon attorney's office. There's some indication that's the case. Before Trump issued his second pardon to former Navy sailor Kristian Saucier, for example, the OPA abruptly reopened Saucier's case and sent him a detailed personal questionnaire.

“The White House will continue to review pardons and make decisions on a rolling basis,” the official said. “The White House and the Department of Justice receives thousands of clemency applications per year. The Office of the Pardon Attorney at the Department of Justice and the Deputy Attorney General review these applications in order to make recommendations to the White House on potential pardons."...

Amy Povah, the leader of the CAN-Do Foundation, said she’s pleased with Trump’s recent emphasis on clemency. So far, Trump has issued two prison commutations and five pardons, but the quickening pace is giving aspirants hope. “I have always felt that President Trump would be interested in clemency if he understood the fundamental problem with the Office of the Pardon Attorney being controlled by DOJ,” Povah said. “It's a conflict of interest for DOJ to have final say, which is why some of the best cases never made it to the White House during the Obama administration, like Alice Johnson.”

Margaret Love, who served as U.S. pardon attorney between 1990 and 1997, said she’s also optimistic. “It’s great news that the president may be interested in considering additional cases involving harsh prison sentences,” Love told the Washington Examiner. “President Obama’s clemency program was a good start but he left many deserving cases behind.”

As regular readers may recall, way back in 2010, I urged Prez Obama to structurally change the federal clemency system in this this law review article titled "Turning Hope-and-Change Talk Into Clemency Action for Nonviolent Drug Offenders."  I that article I suggested, as a number of commentators have, that the President set up some kind of "Clemency Commission" that would be apart from the work and workings of the Justice Department.  It seems that Prez Obama did not really heed my clemency commission advice (though he ended up doing some good clemency work at the very tail end of his Presidency).  Here is hoping maybe Prez Trump will engineer some needed structural changes. 

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

June 11, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Spotlighting the role of prisons and jails as our modern mental health facilities

Esquire has this lengthy piece on modern prison realities that is notable for both its content and its author.  The full title and subtitled reveals its contents and author:

'THIS PLACE IS CRAZY': Our mental-health-care system is broken.  Ten of every eleven psychiatric patients housed by the government are incarcerated. Here’s what this crisis looks like from the inside—a series of lost lives and a few rare victories—as reported by a prisoner-journalist.

Here is the full bio from the article of the article's author:

John J. Lennon, a contributing writer at The Marshall Project, has written for Vice, The Atlantic, and The New York Times.  He is currently in Sing Sing Correctional Facility in Ossining, New York.  He will be eligible for parole in 2029.

And here is a snippet from the piece worth reading in full:

Nearly 20 percent of the fifty-two thousand prisoners in New York’s prison system — ten thousand in all — have mental illness.  The Department of Corrections and Community Supervision (DOCCS), which runs the state’s correctional facilities and supervises its parolees, is not alone: Nearly four hundred thousand of 2.2 million prisoners nationwide have a psychiatric diagnosis. Compare that with the thirty-eight thousand patients that the country’s state-run psych hospitals can accommodate.  The math is as easy as it is shocking: Ten out of every eleven psychiatric patients housed by the government are behind bars.

The financial toll is enormous: Treating prisoners with mental illness costs twice as much as providing community-based care.  State prisons spend an estimated $5 billion each year to imprison nonviolent offenders with a disorder.  As the National Alliance on Mental Illness says, “In a mental-health crisis, people are more likely to encounter police than get medical help.”  Jails and prisons have become our de facto asylums.

June 11, 2018 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Pew Research Center reports uptick in support for death penalty

FT_18.06.08_DeathPenalty_widening-partisan-gapThe folks from Pew have some notable new survey research on the death penalty reported here under the headline "Public support for the death penalty ticks up." Here are the details:

Public support for the death penalty, which reached a four-decade low in 2016, has increased somewhat since then.  Today, 54% of Americans favor the death penalty for people convicted of murder, while 39% are opposed, according to a Pew Research Center survey conducted in April and May.

Two years ago, 49% favored the death penalty for people convicted of murder, the lowest level of support for capital punishment in surveys dating back to the early 1970s.

While the share of Americans supporting the death penalty has risen since 2016, it remains much lower than in the 1990s or throughout much of the 2000s.  As recently as 2007, about twice as many Americans favored (64%) as opposed (29%) the death penalty for people convicted of murder.

Since the mid-1990s, support for the death penalty has fallen among Democrats and independents but remained strong among Republicans. About three-quarters of Republicans (77%) currently favor the death penalty, compared with 52% of independents and 35% of Democrats.

Since 1996, support for the death penalty has fallen 27 percentage points among independents (from 79% to 52%) and 36 points among Democrats (71% to 35%).  By contrast, the share of Republicans favoring the death penalty declined 10 points during that span (from 87% to 77%)....

Support for the death penalty has long been divided by gender and race. In the new survey, about six-in-ten men (61%) say they are in favor of the death penalty and 34% are opposed. Women’s views are more divided: 46% favor the death penalty, while 45% oppose it. A 59% majority of whites favor the death penalty for those convicted of murder, compared with 47% of Hispanics and 36% of blacks.

Young people are somewhat less likely than older adults to favor capital punishment.  Those younger than 30 are divided — 47% favor and 46% oppose it — but majorities in older age groups support the death penalty.

There are educational differences in views of the death penalty. Adults who have a postgraduate degree are more likely to oppose the use of the death penalty in cases of murder (56%) than those whose education ended with a college degree (42%) and those who never received a postsecondary degree (36% some college experience; 38% high school degree or less).

White evangelical Protestants continue to back the use of the death penalty by a wide margin (73% favor, 19% oppose). White mainline Protestants also are substantially more likely to support (61%) than oppose (30%) the death penalty. But among Catholics and the religiously unaffiliated, opinion is more divided: 53% of Catholics favor capital punishment, while 42% oppose it. And while 45% of those who are religiously unaffiliated oppose the death penalty, 48% support it.

Especially because the spike in support for the death penalty here seems to be greater among Republicans and independents, I am inclined to describe these results as reflecting a "Trump Effect."   Notably, this poll was taken only a month after Prez Trump and his Attorney General were actively talking up the idea of the death penalty for some drug dealers (see all the links in this post), and I cannot help but wonder if these results somewhat reflect that particular use of the bully pulpit.

June 11, 2018 in Death Penalty Reforms, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (2)

SCOTUS keeps us waiting on remaining big (and little) criminal justice cases

The Supreme Court issued a new order list and opinions in four argued cases this morning, but this activity carried little of interest for criminal justice fans.  There were no grants of certiorari on the order list, though there were, unsurprisingly, a handful of cases in which the judgment was "vacated, and the case is remanded ... for further consideration in light of Hughes v. United States."  Hughes, readers should recall, was the case decided last week (discussed here and here) in which the Court embraced a broadened interpretation of who is eligible for sentence modification under retroactive guideline reductions in certain plea settings.

Lacking a new SCOTUS case to review, I figured it might be useful to review the still-pending SCOTUS cases that should be of interest to criminal justice fans.  SCOTUSblog is reporting that the Court has already announced an added decision day for this coming Thursday, so some of these cases might be decided before the end of this week.  And all should be resolved over the next few weeks.  I believe there are a total of 21 SCOTUS cases outstanding, with these on the criminal side of the docket (links and descriptions via SCOTUSblog):

Carpenter v. United States: Whether the warrantless seizure and search of historical cellphone records revealing the location and movements of a cellphone user over the course of 127 days is permitted by the Fourth Amendment.

Currier v. Virginia: Whether a defendant who consents to severance of multiple charges into sequential trials loses his right under the double jeopardy clause to the issue-preclusive effect of an acquittal.

Rosales-Mireles v. United States: Whether, in order to meet the standard for plain error review set forth by the Supreme Court in United States v. Olano that "[t]he Court of Appeals should correct a plain forfeited error affecting substantial rights if the error ‘seriously affect[s] the fairness, integrity, or public reputation of judicial proceedings,’” it is necessary, as the U.S. Court of Appeals for the 5th Circuit required, that the error be one that “would shock the conscience of the common man, serve as a powerful indictment against our system of justice, or seriously call into question the competence or integrity of the district judge.”

Lozman v. City of Riviera Beach, Florida: Whether the existence of probable cause defeats a First Amendment retaliatory-arrest claim as a matter of law.

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

So, roughly speaking, about a quarter of the cases still on the docket involve criminal justice matters.  The real big one of this bunch, of course, is Carpenter; that case has been identified as a potential Fourth Amendment "game changer" even before a cert petition was filed in this case nearly two years ago.  And if sentencing fans are looking for a "sleeper" among this quintet, I am inclined to nominate Chavez-Meza.  Though I am not expecting or predicting a major opinion in Chavez-Meza, the Justices could directly or indirectly jolt federal sentencing procedure and practice if it happened to say something consequential about the preferred form or substance of sentencing explanations for district courts.  (Notably, I might be inclined to predict something significant in Chavez-Meza if Justice Gorsuch was involved in this case, but on this one he is recused because the case comes from the Tenth Circuit.)

June 11, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

June 10, 2018

Former US Pardon Attorney explains why "Trump’s pardons are really not out of the ordinary"

Margaret Colgate Love, who served as U.S. pardon attorney from 1990 to 1997, has this terrific recent Washington Post piece headlined "Trump’s pardons really aren’t out of the ordinary." Here is how it starts and ends:

President Trump’s newfound enthusiasm for his pardon power has evoked consternation among his critics, in part because he appears to have bypassed the Justice Department’s pardon advisory program.  But having managed that program for almost a decade during the first Bush and Clinton administrations, and represented applicants for pardon and sentence commutation in the 20 years since, I find much of this criticism unwarranted.

There is nothing surprising or necessarily alarming about Trump’s embrace of this broad executive power — even if it has been unconventional.  His grants to date, at least as he explains them, represent a classic and justifiable use of the pardon power to draw attention to injustice and inefficiency in the law.  While many may disagree with the president’s choices, each of them speaks to some widely acknowledged dysfunction in the criminal-justice system.

Moreover, each of his grants has some precedent in recent pardon practice. His most recent grant, to Alice Marie Johnson, a woman serving a life sentence for involvement in drug trafficking, carries on President Barack Obama’s program of sentence commutations. Even his pardon of former Maricopa County, Ariz., sheriff Joe Arpaio last summer echoes President Ronald Reagan’s decision to fulfill a campaign promise by preemptivelypardoning two FBI officials who had approved illegal surveillance of domestic terrorists.

In sum, Trump’s grants to date send a message that business as usual in the criminal-justice system will not be tolerated.  That is how the pardon power was designed to work by the framers of the Constitution.

But while Trump’s pardons are hardly unique, the process that produced them is troublesome.  Trump appears to be relying exclusively on random, unofficial sources of information and advice to select the lucky beneficiaries of his official mercy.  This makes a mockery of the pardon power’s historical operation as part of the justice system, manifested by its administration by the Justice Department since the Civil War.  President Bill Clinton similarly avoided the ordinary pardon review process at the end of his presidency, depriving his grants of legitimacy and threatening long-term damage to his reputation....

As a [reform] model, the federal government might consider Delaware’s clemency system, in which an official board chaired by the lieutenant governor serves as gatekeeper to the governor’s pardon power. This board and its small staff have produced hundreds of recommendations each year, mostly accepted by the governor.  Significantly, the Delaware attorney general’s role is strictly one of an advocate.

While the president’s pardoning options could not be limited without a constitutional amendment, the many practical and political virtues of a Delaware-like management system should encourage presidential compliance.  Congress might even offer a record-sealing benefit for cases that go through the regular process, as South Dakota’s legislature did several years ago after hundreds of “secret” gubernatorial pardons came to light.  This would not only lend greater credibility to specific grants but could also allow pardons to play a more effective role in regulating the operation of the justice system and encouraging law reform.

There are many reasons to be guardedly grateful that Trump has taken an interest in this time-honored constitutional power.  But now we must encourage him to use it more responsibly for the benefit of those who have no friends in high places, if not for the benefit of his own legacy.

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

June 10, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"Jeff Sessions Struggles to Get Planned Marijuana Crackdown Going"

The title of this post is the headline of this new Wall Street Journal article with this subtitle summarizing its contents: "Attorney general vowed to toughen federal enforcement of the drug, but he doesn’t have support from Trump or Congress." Here are excerpts: 

Attorney General Jeff Sessions vowed to use federal law to get tough on marijuana, announcing in January he was ending Obama-era protections for the nascent pot industry in states where it is legal. Six months into his mission, he is largely going it alone.

Mr. Sessions’ own prosecutors have yet to bring federal charges against pot businesses that are abiding by state law. And fellow Republicans in Congress, with support from President Donald Trump, are promoting several bills that would protect or even expand the legal pot trade.

As a result, Mr. Sessions, an unabashed drug warrior, has struggled to make his anti-marijuana agenda a reality, a notable contrast with the success he has had in toughening law-and-order policies in other criminal justice areas.

Marijuana advocates say Mr. Sessions’ approach, in seeking to spur a crackdown on the legal marijuana market, has largely backfired. It has catalyzed bipartisan support for research, they say, and for action to improve the young industry’s access to banks, which have been generally unwilling to accept proceeds from pot sales.

Underlining the pushback, Sen. Cory Gardner, (R., Colo.) on Thursday joined Sen. Elizabeth Warren (D., Mass.) in introducing a bill that essentially would allow states to pass their own marijuana laws without interference from the federal government. Mr. Trump on Friday reiterated his support for Mr. Gardner, saying “I know exactly what he’s doing, we’re looking at it, but I probably will end up supporting that, yes.”...

In an unusual move by a Republican senator against his own party’s attorney general, Mr. Gardner blocked nominees for Justice Department jobs after Mr. Sessions announced he was undoing the Obama administration’s approach. Mr. Gardner stood down after receiving assurances that Mr. Trump would support protections for pot-legal states like Colorado, essentially undermining Mr. Sessions on the issue. “If they’ve voted to have a legal industry, then it would allow them to continue forward without violating any federal law,” Mr. Gardner said of the bill he co-authored with Ms. Warren.

House Republicans are also supporting a number of other marijuana-related measures. Rep. Matt Gaetz (R., Fla.) is pushing his colleagues to allow more marijuana research, which he hopes will pave the way to rescheduling pot—that is, categorizing it with less dangerous drugs on the Drug Enforcement Administration’s list of illicit substances.

Supporters of relaxing marijuana drug laws cheer the recent developments. “It was terrific,” said Don Murphy, director of federal policy for the Marijuana Policy Project, said of Mr. Sessions’ threat to the industry. “It moved this issue to a burner.” Pot foes caution it is too soon to judge the impact of Mr. Sessions’ changes. “It’s not a win for Jeff Sessions, but at the end of the day he still directs the department and could have the DEA close marijuana businesses,” said Kevin Sabet, president and CEO of the antipot group Smart Approaches to Marijuana.

Mr. Sessions’ January marijuana policy left federal prosecutors to decide what resources to devote to marijuana crimes, stirring fear among dispensary owners that raids and arrests were imminent. Instead, many U.S. attorneys continued to use their limited manpower to target unusually brazen marijuana operations that are also illegal under state law, such as sprawling marijuana growers on federal lands or gangs that peddle pot along with other drugs.

Billy Williams, Oregon’s U.S. attorney, for example, is targeting the trafficking of marijuana across state lines, organized crime and businesses that supply pot to minors. This in many ways resembles the policy that prevailed under the Obama administration, which urged states to tightly regulate marijuana and keep it from crossing state lines to avoid federal scrutiny. “I’m not making any blanket statements that we wouldn’t prosecute anyone,” Mr. Williams said. “It’s a case-by-case basis.”

Colorado’s U.S. attorney, Bob Troyer, is aggressively prosecuting drug traffickers who grow pot on federal lands, which is against both state and federal law. But his office hasn’t brought charges against dispensaries that comply with the state’s regulations. “We never would give anyone immunity for violating federal law,” Mr. Troyer said. “As those threats evolve and change, something else could rise to the top priority level.”

All the particulars of these stories should be familiar to regular readers of my Marijuana Law, Policy and Reform blog, and here are just a few of many recent posts providing more of those particulars:

June 10, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues, Who Sentences | Permalink | Comments (1)