« June 10, 2018 - June 16, 2018 | Main | June 24, 2018 - June 30, 2018 »

June 22, 2018

"Gideon Incarcerated: Access to Counsel in Pre-Trial Detention"

The title of this post is the title of this new article authored by Johanna Kalb now available via SSRN.  Here is the abstract:

As the population of incarcerated persons has swelled in local, state, and federal facilities around the country, the infrastructure supporting the attorney-client relationship is under increasing stress.  The result is an array of new cases about the difficulties of lawyering in jails and prisons.  These cases challenge the lack of private space for legal visits, reductions in visiting hours, remote carceral placements, interference with legal mail, and monitoring of legal phone calls and legal email.  Despite (or perhaps because of) these mounting challenges, many courts have become less receptive to Sixth Amendment claims from people behind bars, putting the right to counsel at risk.

This Article traces the hidden ways in which mass incarceration has worked to degrade the right to counsel, both in fact and in law, for incarcerated criminal defendants.  It then proposes possibilities for reinvigorating the Sixth Amendment’s protections for incarcerated defendants, through intersecting strategies for regulation and structural litigation, with the ultimate goal of breaking our national reliance on pretrial detention.  Building on a 50-state survey of the jail standards governing the attorney-client relationship, the Article illustrates how the Sixth Amendment’s protections are currently understood by those who must facilitate them, and then proposes a new litigation strategy to catalyze reform.

June 22, 2018 in Prisons and prisoners, Procedure and Proof at Sentencing, Scope of Imprisonment, Who Sentences? | Permalink | Comments (5)

SCOTUS rules 5-4 to extend Fourth Amendment protections to cell-site records in Carpenter

The Supreme Court this morning handed down the biggest criminal case of its concluding Term, Carpenter v. US, No. 16-402 (S. Ct. June 22, 2018) (available here). Though I will leave it to Fourth Amendment experts to unpack the majority opinion (authored by Chief Justice Roberts and joined by all the more liberal Justices) and all the separate dissenting opinions (there are four), my first-cut sense is that this is a "big but narrow" win for criminal defendants and privacy advocates.  Here are a few key passages from the majority opinion leading me to that conclusion:

Given the unique nature of cell phone location records, the fact that the information is held by a third party does not by itself overcome the user’s claim to Fourth Amendment protection. Whether the Government employs its own surveillance technology as in Jones or leverages the technology of a wireless carrier, we hold that an individual maintains a legitimate expectation of privacy in the record of his physical movements as captured through CSLI.  The location information obtained from Carpenter’s wireless carriers was the product of a search....

We therefore decline to extend Smith and Miller to the collection of CSLI.  Given the unique nature of cell phone location information, the fact that the Government obtained the information from a third party does not overcome Carpenter’s claim to Fourth Amendment protection. The Government’s acquisition of the cell-site records was a search within the meaning of the Fourth Amendment.

* * *

Our decision today is a narrow one.  We do not express a view on matters not before us: real-time CSLI or “tower dumps” (a download of information on all the devices that connected to a particular cell site during a particular interval).  We do not disturb the application of Smith and Miller or call into question conventional surveillance techniques and tools, such as security cameras.  Nor do we address other business records that might incidentally reveal location information.  Further, our opinion does not consider other collection techniques involving foreign affairs or national security.  As Justice Frankfurter noted when considering new innovations in airplanes and radios, the Court must tread carefully in such cases, to ensure that we do not “embarrass the future.”  Northwest Airlines, Inc. v. Minnesota, 322 U.S. 292, 300 (1944).

June 22, 2018 in Procedure and Proof at Sentencing, Technocorrections, Who Sentences? | Permalink | Comments (4)

SCOTUS rules 5-4 against finding Double Jeopardy Clause limits prosecutors over severed trials

The Supreme Court this morning handed down Currier v. Virginia, No. 16-1358 (S. Ct. June 22, 2018) (available here), dealing with the reach of the Double Jeopardy Clause. Here is how Justice Gorsuch's lead opinion gets started (ending with a question that the Court answers "no"):

About to face trial, Michael Currier worried the prosecution would introduce prejudicial but probative evidence against him on one count that could infect the jury’s deliberations on others. To address the problem, he agreed to sever the charges and hold two trials instead of one.  But after the first trial finished, Mr. Currier turned around and argued that proceeding with the second would violate his right against double jeopardy.  All of which raises the question: can a defendant who agrees to have the charges against him considered in two trials later successfully argue that the second trial offends the Fifth Amendment’s Double Jeopardy Clause?

The dissent authored by Justice Ginsburg and joined by Justices Breyer, Sotomayor and Kagan, starts this way:

Michael Nelson Currier was charged in Virginia state court with (1) breaking and entering, (2) grand larceny, and (3) possessing a firearm after having been convicted of a felony. All three charges arose out of the same criminal episode.  Under Virginia practice, unless the prosecutor and the defendant otherwise agree, a trial court must sever a charge of possession of a firearm by a convicted felon from other charges that do not require proof of a prior conviction.  Virginia maintains this practice recognizing that evidence of a prior criminal conviction, other than on the offense for which the defendant is being tried, can be highly prejudicial in jury trials.

After trial for breaking and entering and grand larceny, the jury acquitted Currier of both charges.  The prosecutor then chose to proceed against Currier on the severed felon-in-possession charge.  Currier objected to the second trial on double jeopardy grounds.  He argued that the jury acquittals of breaking and entering and grand larceny established definitively and with finality that he had not participated in the alleged criminal episode.  Invoking the issue-preclusion component of the double jeopardy ban, Currier urged that in a second trial, the Commonwealth could not introduce evidence of his alleged involvement in breaking and entering and grand larceny, charges on which he had been acquitted.  He further maintained that without allowing the prosecution a second chance to prove breaking and entering and grand larceny, the evidence would be insufficient to warrant conviction of the felon-in-possession charge.

I would hold that Currier’s acquiescence in severance of the felon-in-possession charge does not prevent him from raising a plea of issue preclusion based on the jury acquittals of breaking and entering and grand larceny.

June 22, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Fourth Circuit affirms ruling that DC sniper Lee Malvo entitled to resentencing due to Miller and Montgomery

Last year, as reported in this prior post, a US District Judge concluded that infamous sniper Lee Boyd Malvo was entitled to re-sentencing as a consequence of Supreme Court rulings precluding mandatory life sentences for juvenile murderers.  Yesterday, the Fourth Circuit affirmed that decision in a unanimous panel ruling in Malvo v. Mathena, No. 17-6746 (4th Cir. June 21, 2018) (available here). This ruling gets started this way: 

In Virginia in 2004, a defendant convicted of capital murder, who was at least 16 years old at the time of his crime, would be punished by either death or life imprisonment without the possibility of parole, unless the judge suspended his sentence.  After a Virginia jury convicted Lee Boyd Malvo of two counts of capital murder based on homicides that he committed in 2002 when he was 17 years old, it declined to recommend the death penalty, and he was instead sentenced in 2004 to two terms of life imprisonment without parole, in accordance with Virginia law.  Thereafter, Malvo, again seeking to avoid the death penalty, pleaded guilty in another Virginia jurisdiction to one count of capital murder and one count of attempted capital murder — both of which he also committed when 17 years old — and received two additional terms of life imprisonment without parole.

After Malvo was sentenced in those cases, the Supreme Court issued a series of decisions relating to the sentencing of defendants who committed serious crimes when under the age of 18.  It held that such defendants cannot be sentenced to death; that they cannot be sentenced to life imprisonment without parole unless they committed a homicide offense that reflected their permanent incorrigibility; and that these rules relating to juvenile sentencing are to be applied retroactively, meaning that sentences that were legal when imposed must be vacated if they were imposed in violation of the Court’s new rules.  See Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 560 U.S. 48 (2010); Miller v. Alabama, 567 U.S. 460 (2012); Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

In these habeas cases filed under 28 U.S.C. § 2254, we conclude that even though Malvo’s life-without-parole sentences were fully legal when imposed, they must now be vacated because the retroactive constitutional rules for sentencing juveniles adopted subsequent to Malvo’s sentencings were not satisfied during his sentencings.  Accordingly, we affirm the district court’s order vacating Malvo’s four terms of life imprisonment without parole and remanding for resentencing to determine (1) whether Malvo qualifies as one of the rare juvenile offenders who may, consistent with the Eighth Amendment, be sentenced to life without the possibility of parole because his “crimes reflect permanent incorrigibility” or (2) whether those crimes instead “reflect the transient immaturity of youth,” in which case he must receive a sentence short of life imprisonment without the possibility of parole.  Montgomery, 136 S. Ct. at 734.

June 22, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (6)

June 21, 2018

Fascinating accounting of prosecutorial role in considerable racial disparity in Florida sentencing

Back in 2016, as highlighted in this post, the Sarasota Herald-Tribune published an extraordinary series of articles in examining disparities in Florida's sentencing system under the heading "Bias on the Bench."  The paper now, working with the Florida Times-Union, has this new remarkable series under the headline "Influence & Injustice: An Investigation Into The Power Of Prosecutors."  Here is part of the lead article:

Academics and judges argue that prosecutors are the most powerful players in the criminal justice system and most to blame for bias.  But at 34 and just three years out of law school in 2016, was Bustamante really responsible for locking up black defendants for nearly quadruple the time of whites?

The Herald-Tribune and Times-Union set out to answer this question by measuring the influence of other players in the criminal justice system on cases prosecuted by Bustamante.  Those players include two powerful judges she appeared before; her former boss, Angela Corey — regarded as one of the toughest state attorneys in the nation; the Jacksonville Sheriff’s Office, which heavily polices minority communities; and residents of the city’s black neighborhoods, notorious for gun violence....

Reporters and editors spent at least 500 hours over three months opening more than 3,500 felony drug cases by hand.  The result is a first-of-its-kind spreadsheet tracking Bustamante and 22 other prosecutors based on the race of defendants, points scored under Florida’s sentencing guidelines, time spent behind bars and other factors such as possession of guns or resisting arrest.

From these records, the newspapers created two sentencing indexes: one that measures leniency and another that calculates harsh punishment.  Those indexes reveal that 43 percent of white drug defendants in Duval County were shown some sort of leniency in 2015 and 2016.  That rate falls to 27 percent for blacks.

When it comes to punitive sentences, the trend flips.  Fifteen percent of blacks received severe sentences, according to the index.  That compares to 10 percent of whites.

June 21, 2018 in Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (1)

New Hampshire Gov (finally) vetoes state legislature's repeal of the state's death penalty

Back in April, as reported here, New Hampshire's legislature voted to repeal the state's rarely used death penalty.  But, as reported in this new article, "Gov. Chris Sununu delivered Thursday morning on his promise to veto a measure passed in the New Hampshire House and Senate to repeal the state's death penalty law."  Here is more: 

The governor was flanked by law enforcement officials from departments across the state as he vetoed the bill. "To repeal the death penalty today would deprive future victims of the justice they deserve," Sununu said. "Abolishing the death penalty would send the wrong message to those who would commit the most heinous offenses within our state borders."

The House passed Senate Bill 593 in April, but the vote fell short of the two-thirds supermajority that would be needed to override the veto. "While I very much respect the arguments made by the opponents of this bill, I stand with crime victims, members of the law enforcement community and advocates for justice in opposing this bill," Sununu said....

The last time a convicted murderer was put to death in New Hampshire was in 1939. State lawmakers last sent a death penalty repeal bill to the governor's desk in 2000, when then-Gov. Jeanne Shaheen vetoed it.

"We have made our arguments in front of both houses in the Legislature, and we believe that this is the right thing to do," Franklin Police Chief David Goldstein said.

Barbara Keshen, who chairs the Coalition to Abolish the Death Penalty, said many of the victims her group represents are against capital punishment. "They don't want to be part of a system that creates another grieving family, which is what the death penalty does," Keshen said. "That is not justice. Life in prison is sufficient justice for them."

The bill will head back to the Legislature, but death penalty opponents would need to get more votes in the House and Senate to reach the two-thirds majorities needed to overturn the veto.

June 21, 2018 in Death Penalty Reforms, Who Sentences? | Permalink | Comments (3)

"N.F.L. Players to Trump: Here’s Whom You Should Pardon"

The title of this post is the headline of this op-ed in today's New York Times authored by Doug Baldwin, Anquan Boldin, (former OSU Buckeye) Malcolm Jenkins and Benjamin Watson. I recommend the piece in full, and here are extended excerpts:

President Trump recently made an offer to National Football League players like us who are committed to protesting injustice. Instead of protesting, he suggested, we should give him names of people we believe were “unfairly treated by the justice system.”  If he agrees they were treated unfairly, he said, he will pardon them.

To be sure, the president’s clemency power can be a valuable tool for redressing injustice.  Just look at Alice Johnson, age 63, who was serving a life sentence for a nonviolent drug conviction until her sentence was commuted by President Trump.  He should be commended for using his clemency power in that case.

But a handful of pardons will not address the sort of systemic injustice that N.F.L. players have been protesting.  These are problems that our government has created, many of which occur at the local level.  If President Trump thinks he can end these injustices if we deliver him a few names, he hasn’t been listening to us.

As Americans, it is our constitutional right to question injustices when they occur, and we see them daily: police brutality, unnecessary incarceration, excessive criminal sentencing, residential segregation and educational inequality.  The United States effectively uses prison to treat addiction, and you could argue it is also our largest mental-health provider. Law enforcement has a responsibility to serve its communities, yet this responsibility has too often not met basic standards of accountability....

President Trump could help.  He could use his powers, including the clemency power, to make a real dent in the federal prison population.  People like Alice Johnson, for example, should not be given de facto life sentences for nonviolent drug crimes in the first place.  The president could stop that from happening by issuing a blanket pardon for people in that situation who have already served long sentences.

Of the roughly 185,000 people locked up in federal prisons, about 79,000 are there for drug offenses of some kind — and 13.5 percent of them have sentences of 20 years or more.  Imagine how many more Alice Johnsons the president could pardon if he treated the issue like the systemic problem it is, rather than asking professional football players for a few cases.

There is also a systemic problem in federal prison involving the elderly, who by next year will make up 28 percent of the federal prison population. Releasing these prisoners would pose little to no risk to society.  And yet from 2013 to 2017, the Bureau of Prisons approved only 6 percent of roughly 5,400 “compassionate release” applications.  About half of those applications were for people who had been convicted of nonviolent fraud or drug offenses.  Of those denied release, 266 died in custody. 

President Trump could order the release of any drug offender over the age of 60 whose conviction is not recent.  That would be the morally right thing to do.

Apart from using the pardon power, there are policies the president and the attorney general could implement to help.  For instance, they could eliminate life without parole for nonviolent offenses.  Currently, more than half of those sentenced to die in federal prison are there for nonviolent offenses, and 30 percent of people sentenced to life (or de facto life) are there for a nonviolent drug crimes. Compare that with the state level: Only 2 percent of those sentenced to life (or de facto life) are there for drug offenses....

President Trump, please note: Our being professional athletes has nothing to do with our commitment to fighting injustice.  We are citizens who embrace the values of empathy, integrity and justice, and we will fight for what we believe is right.  We weren’t elected to do this.  We do it because we love this country, our communities and the people in them. This is our America, our right.

We intend to continue to challenge and encourage all Americans to remember why we are here in this world.  We are here to treat one another with the kindness and respect every human being deserves. And we hope our elected officials will use their power to do the same.

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

June 21, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Split Michigan Supreme Court rejects Sixth Amendment challenge to state's new juve LWOP statute

Ruling 4-2, the Michigan Supreme Court issued a lengthy opinion yesterday upholding the procedures of its new juvenile sentencing statute.  The majority opinion in Michigan v. Skinner, No. 152448 (Mich. June 20, 2018) (available here), gets started this way:

At issue here is whether MCL 769.25 violates the Sixth Amendment because it allows the decision whether to impose a sentence of life without parole to be made by a judge, rather than by a jury beyond a reasonable doubt.  We hold that MCL 769.25 does not violate the Sixth Amendment because neither the statute nor the Eighth Amendment requires a judge to find any particular fact before imposing life without parole; instead, life without parole is authorized by the jury’s verdict alone.  Therefore, we reverse the judgment of the Court of Appeals in Skinner and affirm the part of Hyatt that held that “[a] judge, not a jury, must determine whether to impose a life-without-parole sentence or a term-of-years sentence under MCL 769.25.”  People v Hyatt, 316 Mich App 368, 415; 891 NW2d 549 (2016).  However, we reverse the part of Hyatt that adopted a heightened standard of review for life-without-parole sentences imposed under MCL 769.25 and that remanded this case to the trial court for it to “decide whether defendant Hyatt is the truly rare juvenile mentioned in [Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012)] who is incorrigible and incapable of reform.” Hyatt, 316 Mich App at 429. No such explicit finding is required.  Finally, we remand both of these cases to the Court of Appeals for it to review defendants’ sentences under the traditional abuse-of-discretion standard of review.

The dissenting opinion gets started this way:

There is much in the majority opinion with which I agree.  For example, I agree that if MCL 769.25 can reasonably be construed in a constitutional manner, we should so construe it.  And I generally agree with the majority’s discussion of the applicable legal principles.  But I respectfully dissent from the majority’s conclusion that there are two reasonable ways of interpreting MCL 769.25, one of which is constitutional.  Reading the statute as “murder-plus” would violate the Sixth Amendment under Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), and its progeny.  And I disagree with the majority that reading the statute as “murder-minus” cures all its constitutional deficiencies. In my view, reading the statute as murder-minus renders it unconstitutional under the Eighth Amendment as interpreted by the United States Supreme Court in Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), and Montgomery v Louisiana, 577 US ___; 136 S Ct 718; 193 L Ed 2d 599 (2016). Read either way, MCL 769.25 suffers from a constitutional deficiency.

June 21, 2018 in Assessing Miller and its aftermath, Blakely in the States, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (5)

Nevada now scheduled to conduct execution, its first in a dozen years, using an opioid lethal injection cocktail

This new AP piece, headlined "Nevada sets 1st execution in 12 years after fight over drugs," reports on the latest development in Nevada's efforts to restart its machinery of death. Here are details:

Nevada plans to carry out its first execution in 12 years using a never-before-tried combination of drugs that drew a court challenge over concerns that a convicted murderer could suffer during the lethal injection.  Scott Raymond Dozier is scheduled to die July 11, Department of Corrections spokeswoman Brooke Santina said Wednesday, a day after a judge in Las Vegas signed the death warrant.

It comes after the state Supreme Court decided last month not to stop the execution on procedural grounds despite challenges by lawyers and a rights group, who argued that the procedure would be less humane than putting down a pet.  There also were concerns that some of the state's drugs would have expired.  "We have what we need to complete the execution order," Santina told The Associated Press.  "The same three drugs. We have some that are not expired."

Dozier's death warrant was signed Tuesday by Clark County District Court Judge Jennifer Togliatti, who last November blocked the scheduled execution over concerns that one drug in the three-drug cocktail would immobilize the inmate and mask any signs of pain and suffering.  The warrant didn't address her previous concerns.

Batches of the disputed muscle paralytic called cisatracurium began expiring April 1, but Santina has said the state had supplies that were good until Nov. 30.  The sedative diazepam, the powerful painkiller fentanyl and the paralytic cisatracurium have never been used for lethal injections in any state.  Diazepam is commonly known as Valium. Fentanyl is synthetic opioid that has been blamed for overdose deaths nationwide during an opioid epidemic....

Dozier, 47, has been on death row since 2007 for convictions in separate murders in Phoenix and Las Vegas. He has said repeatedly that he wants to be put to death as soon as possible and doesn't care what drugs are used.  Dozier, who also used the name Chad Wyatt, would become the first person put to death in Nevada since 2006.  His death would mark the first lethal injection since a new execution chamber was completed in 2016 at Ely State Prison, 250 miles (402 kilometers) north of Las Vegas.

Aides to Republican Gov. Brian Sandoval and state Attorney General Adam Laxalt did not immediately respond to messages Wednesday.  Jonathan Van Boskerck, a chief deputy Clark County district attorney involved in nearly a year of court hearings over Dozier's fate, pointed to the death sentence by a jury and the state high court ruling last month. "The decision of this jury deserves respect," he said.

Prior related posts:

June 21, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

June 20, 2018

Is it too early to conclude the new guy, Justice Neil Gorsuch, is going to often(?) favor federal criminal defendants in close cases?

There are still a couple of criminal cases left on the SCOTUS docket, including the big Fourth Amendment case Carpenter, so it is too soon to do any big "review of the Term" posts.  But I have seen Kenneth Jost already has this a mini-accounting in recent tweets:

Rosales-Mireles was 10th signed decision favoring defendants or habeas petitioners; Chavez-Meza was 3d signed decision favoring govt. Still pending: Currier v. Virginia (double jeopardy).

In criminal law cases, govt's s three wins are relatively insubstantial (e.g., Chavez-Meza); the 10 wins for defense include two significant 4th A decisions (Byrd, Collins); two on federal sentencing (Hughes, Rosales-Mireles); etc.

The rulings in the last two federal sentencing cases this Term on Monday (basics here) also has me looking back on some of the cases I have been watching closely this Term.  And that look back has led me to notice that the newest Justice, Neil Gorsuch, is seemingly more often voting in favor of federal criminal defendants in contested cases than against them.

At the end of the Term, the SCOTUSblog folks always do a great run of the numbers on various voting patterns.  But my cursory review suggest that Justice Gorsuch is most consistently breaking from his conservative colleagues in cases involving federal criminal appeals in order to vote for the defendant.  Specifically, Rosales-Mireles and Marinello are cases in which Justice Gorsuch broke from two of his conservative colleagues, Class and Hughes are examples of federal criminal appeals in which Justice Gorsuch broke from three of his conservative colleagues, and in Dimaya (which is quasi-criminal) he broke from all four of his conservative colleagues.

Critically, the story here is not one that entails a vote for the criminal defendant in all contested criminal cases: Justice Gorsuch was on the state's side in the habeas capital case McCoy and was also a key vote for the government in Jennings (which is quasi-criminal).

Though this voting record reflects only one full Term of service, I am prepared to assert that Justice Gorsuch may already be a more "gettable" vote for federal criminal defendants than was the late Justice Scalia, the jurist he replaced on the High Court.  In the years to come, this reality may prove important not only with respect to how the Justice decided key cases, but also with respect to how the Justice decide which cases to decide.

June 20, 2018 in Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

"Fourth Amendment Constraints on the Technological Monitoring of Convicted Sex Offenders"

The title of this post is the title of this new paper available via SSRN authored by Ben McJunkin and J.J. Prescott.  Here is its abstract:

More than forty U.S. states currently track at least some of their convicted sex offenders using GPS devices.  Many offenders will be monitored for life.  The burdens and expense of living indefinitely under constant technological monitoring have been well documented, but most commentators have assumed that these burdens were of no constitutional moment because states have characterized such surveillance as “civil” in character — and courts have seemed to agree.

In 2015, however, the Supreme Court decided in Grady v. North Carolina that attaching a GPS monitoring device to a person was a Fourth Amendment search, notwithstanding the ostensibly civil character of the surveillance.  Grady left open the question whether the search — and the state’s technological monitoring program more generally — was constitutionally reasonable.  This Essay considers the doctrine and theory of Fourth Amendment reasonableness as it applies to both current and envisioned sex offender monitoring technologies to evaluate whether the Fourth Amendment may serve as an effective check on post-release monitoring regimes.

June 20, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Sex Offender Sentencing, Technocorrections | Permalink | Comments (3)

Is Gov Cuomo soon to have a worse record than Prez Trump on the clemency front?

The question in the title of this post is prompted by this new piece at The Appeal headlined "Cuomo The Merciless: New York's Democratic governor has granted only a trickle of commutations, fewer than many of his Democratic and Republican predecessors."  Here are excerpts: 

In 2015, New York’s governor, Andrew Cuomo, announced the creation of an Executive Clemency Bureau to identify people in the state’s prison system who might be worthy of commutation.  The announcement sparked hope among the system’s approximately 50,000 prisoners, their families, and advocates that they might soon rejoin their families....

Cuomo encouraged attorneys and law firms to donate pro bono hours to help incarcerated people prepare their petitions.  Many heeded the call and devoted significant time and resources to helping dozens of people imprisoned across the state. But these efforts have not proved fruitful.

In December 2016, Cuomo had granted only seven commutations.  One was to Judith Clark, a former Weather Underground member initially sentenced to 75 years to life; her commutation allowed her to appear before the parole board immediately instead of waiting until 2056.  (Clark was denied parole and remains in prison.)  Another commutation granted an immediate release to Valerie Seeley, a domestic violence survivor sentenced to 19 years to life for the fatal stabbing of her abusive boyfriend in 1998, an act that she has always maintained was in self-defense.

About one year later, Cuomo’s office announced more commutations — this time, it was only to two men. He has not granted any clemencies since then.  His office did not respond to The Appeal’s queries about the possibility of future commutations.  Cuomo has, however, issued a greater number of pardons to those who have already served their time. He has granted 140 pardons to adults who were convicted of nonviolent felonies as 16- and 17-year-olds, thus expunging their felony records.  He also granted pardons to 18 others who might face deportation because of a criminal record.

Kathrina Szymborski oversees the pro-bono commutation efforts at the law firm Patterson Belknap Webb & Tyler, which has donated the equivalent of $1.5 million in pro-bono hours to clemency applicants.  She and her colleagues rejoiced when one client, 42-year-old Michael Flournoy, who had served 21 years of a 25-to-50-year sentence, received clemency in December 2017.  But, she told The Appeal, “we have many deserving clients whose applications are still pending. Our clients are dedicated and hard-working, so they continue to gather letters of support, receive stellar job reviews, and complete rehab and educational programs.  They’re trying to be part of society and enrich their communities as best they can from where they are, some by mentoring other prisoners, others by writing articles for publication in various newspapers and magazines. We feel that they’ve served their time and their further incarceration serves no purpose, so we find the lack of action on these applications disappointing.”

While Szymborski notes that her clients remain hopeful, Cuomo’s lack of action has disillusioned others. Steve Zeidman is the director of the Criminal Defense Clinic at the CUNY School of Law as well as Clark’s attorney. While the clinic is working with about 25 people on clemency applications, he has received hundreds of requests for help.  “For so many people, clemency offered the hope that after decades of punishment their quantifiable and undeniable evidence of personal growth and transformation would be recognized,” he told The Appeal, “that they would be given the chance to live outside the prison walls.  As I have now been told on several occasions by those who have had their hopes of clemency reduced to pipe dreams, false hope is cruel; it is worse than no hope.”

I am more than a bit concerned that all the recent clemency talk coming from the White House could turn out to be the source of false hope, especially as Prez Trump gets consumed by other matters.  But among the many reasons I am rooting so hard for Prez Trump to keep using his clemency pen is because it should then become even easier for advocates to urge Governors to keep up the clemency pace.

June 20, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Suggesting home confinement as an incarceration alternative to avoid family separation back home

Tyler Cowen has this notable new commentary bringing home a controversy over immigration policies.  The piece is headlined "American Families Shouldn't Be Separated, Either: What if more parents, when convicted of crimes, were sentenced to house arrest for the benefit of their children?".  Here is how it starts and ends:

One of the worst American policies today is the decision of President Donald Trump’s administration to separate many immigrant parents from their children after they illegally cross the U.S. border.  Obviously, a case can be made for enforcing the border, but deliberate cruelty is never a good idea.  Those children — innocent victims all of them — will likely be traumatized for life.  I am uncomfortably reminded of the U.S.’s long history of separating parents and children from the days of slavery and during Native American removal and extermination.

If you agree with me on this, I’d like to push you one step further.  It’s horrible to forcibly separate lawbreaking parents from their young children, but we do that to American citizens, too.  According to one 2010 study, more than 1.1 million men and 120,000 women in U.S. jails and prisons have children under the age of 17.  These separations can be traumatic, and they help perpetuate generational cycles of low achievement and criminal behavior.

These problems are especially pressing for female prisoners and their children.  From 1991 to 2007, the number of children with a mother in prison more than doubled, rising 131 percent. About two-thirds of the women in state prisons are there for nonviolent offenses.  Sixty percent of those women have children under the age of 18, and in one survey one-quarter of the prisoners’ children were under the age of 4. Forty-one percent of the women in state prison had more than one child.

I have a simple proposal: Let’s take one-tenth of those women and move them from prison to house arrest, combined with electronic monitoring.  That would allow for proximity to their children.  If the U.S. isn’t plagued by a subsequent wave of violent crime — and I don’t think it will be — let us try the same for yet another tenth.  Let’s keep on doing this until it’s obviously not working.  In some of these cases the court might rule that the mother — especially if she is prone to child abuse or substance abuse — will not have full custody rights to her children.  Many other children, though, will benefit, and even visitation rights can help a child....

One estimate suggests that 11 percent of the children of imprisoned mothers end up in foster care.  This is not an area of investigation where data collection has been thorough or systematic, another sign of our neglect of the issue.  Nonetheless it seems that after the arrest of a parent, treatment of the children by the police is irregular across the country and often poorly handled.

In citing this evidence, I don’t mean to normalize the current treatment of illegal immigrant families — I consider it a moral disgrace.  What I am saying is that our treatment of outsiders is rarely an accident, and it so often mirrors how we have been treating each other all along.  That is yet another reason to be nicer to those who are most vulnerable.

June 20, 2018 in Collateral consequences, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4)

Split Second Circuit panel reverses lengthy child porn sentence for second time; dissent notes "sentence is barbaric without being all that unusual"

I do not tend to blog much any more about circuit opinions conducting reasonableness review because, now more than a decade since the Supreme Court ensured reasonableness review would be very deferential thanks to Rita, Gall and Kimbrough, few circuit sentencing opinions break any new ground.  But though a Second Circuit panel opinion yesterday, US v. Sawyer, No. 15-2276 (2d Cir. June 19, 2018) (available here), does not break new ground, it still struck me as blogworthy for both the majority opinion and the dissent.

The majority opinion in Sawyer is well summarized by the preamble to the opinion: 

Appeal from a judgment of the United States District Court for the Northern District of New York (D’Agostino, J.) imposing a sentence of 300 months of imprisonment for the offenses of producing child pornography and receiving child pornography. This court previously vacated as substantively unreasonable a sentence of 360 months of imprisonment for the same offenses, identifying specific deficiencies in the district court’s analysis. The district court did not sufficiently address those deficiencies on remand and suggested that it would have difficulty putting aside its previously-expressed views.

The key factor that appears to have driven the original panel opinion and this second reversal was the "the district court’s failure to give sufficient downward weight to the effect of the severe sexual abuse Sawyer endured at home throughout his childhood."  Tellingly, even at the second sentencing, the district court stressed that the guidelines called for 80 years in prison(!), suggesting no "failure to afford sufficient weight to the way [the defendant was] raised in determining [his] sentence, looking at the fact that [the original sentence] departed by 50 years from the [80 year] guideline range."  In this way in this case,  we can and should see how extreme guideline ranges can persistently distort a district court's sentencing decision-making even after a circuit court has concluded that the district court failed to comply with the requirements of the first time around 3553(a).

Beyond noticing the impact and import of broken guidelines even in a case in which everyone agrees they should not be followed, the Sawyer case struck me as blogworthy because of a (casual?) line in the dissenting opinion by Judge Jacobs. Here is the context for the line quoted in the title to this post, with my emphasis added:

In decrying the 25-year sentence, the majority opinion observes (fairly) that this case is not the most heinous or egregious on record.  At the same time, however, this is not a case such as United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), or United States v. Brown, 843 F.3d 74 (2d Cir. 2016), in which decades of imprisonment were imposed solely for looking at images created by others, and in which any harm to a child was inflicted at one or more removes. This defendant was hands-on.  He produced the pornography, and he used a 4-year-old and a 6-year-old to do it.  For these acts, a 25-year sentence is not a shocking departure from sentences routinely imposed in federal courts for comparable offenses — especially considering that the mandatory minimum is fifteen.  The sentence is barbaric without being all that unusual.

I appreciate the candor and yet remain stunned by Judge Jacobs stating simply that the defendant's sentence here is "barbaric" but yet not "all that unusual" and thus ought to be affirmed despite the obligation of circuit courts to review sentences for their reasonableness in light of the requirements of 3553(a).

June 20, 2018 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (7)

June 19, 2018

SCOTUSblog reviews of SCOTUS work in Rosales-Mireles and Chavez-Meza

When I get some more time to re-read the opinions and to think more about their possible echoes, I may do some additional commentary concerning the Supreme Court's sentencing work yesterday in Rosales-Mireles v. United States, No. 16–9493 (S. Ct. June 18, 2018) (available here), and Chavez-Meza v. United States, No. 17–5639 (S. Ct. June 18, 2018) (available here).  In the meantime, the SCOTUSblog folks have up an "Opinion analysis" for each case:

June 19, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

"Does Watching TV Sports Lower Crime Rates?"

I love the notion that I am doing my part for public safety by sitting on my arse watching sports on the telly.  Consequently, I was excited to see this piece at The Crime Report which has as its headline the title of this post.  Of course, the research does not suggest my TV viewership prevents others from committing crimes, but the research is still interesting all the sane.  Here is an  excerpts (and with a link to the underlying research):

If Americans spent more time watching televised sports, there might be a decrease in crime, according to a study by the UC Davis Violence Prevention Research Program.  In “Entertainment as Crime Prevention: Evidence from Chicago Sports Games,” published in the Journal of Sports Economics last month, researchers Ryan Copus and Hannah Laqueur observed consistent decreases in crime during the times that games aired in Chicago.

Copus and Laqueur found that overall crime during the Bears “Monday Night Football” is roughly 15 percent lower than the same time on Monday nights when the Bears are not playing, and noted similar but smaller effects for Chicago’s basketball and baseball teams.  More popular games showed a stronger effect, with the Super Bowl producing the most dramatic reduction: a decrease of approximately 25 percent during game coverage, amounting to roughly 60 fewer crimes.

While violence in the media has provoked concerns about increasing aggressive behavior among viewers, little exploration has been made of television’s power to divert people from criminal activity.  The study’s results bear out the “incapacitation hypothesis”: If people are entertained, they are not committing crimes.  The authors believe that the diversionary power of movies, television, and video games may compensate for their potential short-term aggression-inducing effects....

The study’s results do not exclude the possibility that those who forgo criminal activity while watching a game will commit crime in the days or weeks before or after the game takes place instead.  Still, Copus and Laqueur’s analysis could be significant to the study of crime control given what it suggests about criminal behavior — namely, that “some share of crime may be best understood not as a predetermined and calculated activity but rather as itself recreation.” 

“There is not a set ‘demand’ for criminal activity,” the study’s authors write. “Rather, some amount of crime is opportunistic and situational — if prevented today, it does not inevitably occur tomorrow.”

June 19, 2018 in National and State Crime Data | Permalink | Comments (1)

Georgia Supreme Court rules individual has essentially no procedural rights before being placed on state's child abuse registry

I saw yesterday a notable ruling by the Georgia Supreme Court in Georgia Department of Human Services v. Steiner, No. S18A0281 (Ga. June 18, 2018)(available here).  As I read the case, a 13-year-old's written statement that an older individual (age 52) hugged her and twice "started to hump me a way a dog would" led to his placement on the Georgia child abuse registry.  Upon getting a subsequent notice of his placement on the registry, Steiner challenged the (lack of) procedures on various grounds, and prevailed in lower courts. But on appeal to the Georgia Supreme Court, Steiner loses and the majority opinion gets started this way:

The Georgia Department of Human Services, Division of Family and Children Services (“DFCS”) appeals from the decision of the Lamar County Superior Court finding that Georgia’s central child abuse registry is unconstitutional, both on its face and as applied to appellee Christopher Steiner.  The trial court also found that DFCS failed to prove that Steiner committed an act of child abuse by a preponderance of the evidence as required to maintain Steiner’s listing in the registry.  This Court granted DFCS’s application for discretionary review. 

We hold that Steiner failed to demonstrate a constitutionally protected liberty or property interest sufficient to trigger the due process protections that he claims were violated by operation of the registry, and because the Act was constitutionally applied to Steiner, he lacks standing to bring his facial challenge on that ground.  We further hold that the child abuse registry is not criminal in nature, and that the superior court therefore erred in finding it to be so.  And because an abuse investigator’s determination about whether a report of child abuse is supported by the evidence is not a judicial function, the superior court erred in finding that the statute requiring the investigator to report such cases to DFCS for inclusion in the child abuse registry violates the separation of powers provision of the Georgia Constitution.  Finally, because at least “some evidence” supported the administrative hearing officer’s conclusion that DFCS had proved an act of child abuse as defined for purposes of the child abuse registry, the superior court erred in reversing the administrative law court.  We reverse.

June 19, 2018 in Collateral consequences, Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (6)

"Whether the Bright-line Cut-off Rule and the Adversarial Expert Explanation of Adaptive Functioning Exacerbates Capital Juror Comprehension of the Intellectual Disability"

The title of this post is the title of this new paper on SSRN authored by Leona Deborah Jochnowitz.  Here is its abstract:

This paper examines a sample of Capital Jury Project (CJP 1) cases with available trial transcripts in which jurors were presented with mitigating intellectual disability evidence and may have been confused by issues of proof, definitions, and extralegal factors.  It tests the hypothesis that jurors’ receptivity to mitigating intellectual disability (ID) was limited by their difficulties with the adversarial mental proof and clinical definitions needed to establish it.  Further the juror decision-making may have been obscured by distractions from extralegal factors, unrelated to the evidence like premature decision-making and heuristic shortcuts, pro-death bias, and racial prejudice.  It also examines whether the bright line cut-off rule, followed in some sample states prior to the Supreme Court decision in Hall v. Florida (2014), exacerbated jurors’ understanding of the disability, and encouraged popular stereotypes and misconceptions about intellectual disability.

In Kentucky, a state with the bright line cut-off rule, at the time these cases were decided, jurors were confused about a range of IQ scores and intellectual declines during developmental years. “IQ was perhaps not above what we consider a moron? I think they were contending that he had an IQ of 70 or 76 or so, had been tested as high as the 80s I recall.” (CJP KY death case #531, juror #725).  Even in non-bright line sample States like South Carolina, with no ID exemption at the time, jurors misunderstood the range of numerical IQ evidence. The study concludes that juror assessment of intellectual disability (ID) is variable.  Some jurors view ID as a more “organic” sympathetic disorder than other mental disorders, and they seem to understand it in practical, lay terms.  Yet, capital juror decision making is marred by extra-legal factors that impair consideration of the mitigating evidence.

The study concludes that juror misunderstanding regarding mitigating evidence has stubbornly persisted throughout the history of the Capital Jury Project and arises from shortcomings in human cognition which impede jurors’ moral consideration of intellectual disability evidence.  In light of these flaws, it may be impossible to avoid the unacceptable risk that persons with intellectual disability will be executed.  This study suggests that mildly intellectually disabled persons were indeed executed because jurors misunderstood the ID evidence and were persuaded by extralegal racial biases and premature decision making.

June 19, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Intriguing comments about the politics and persons around FIRST STEP Act and federal criminal justice reform efforts

The Marshall Project has this notable new Q&A under the full headlined "Van Jones Answers His Critics: The CNN host defends his involvement with a controversial prison reform bill and the Trump White House." I recommend the piece in full, and here are snippets reflecting intriguing parts of Jones's thoughtful perspective on the politics and people impacting federal criminal justice reform efforts:

[W]e need a stable bipartisan consensus to undo mass incarceration. In order to get there, we have to break this logjam that existed under President Barack Obama and in Congress. When we had Obama in the White House and [former U.S. Attorneys] Eric Holder and Loretta Lynch in the Department of Justice, we had a pretty robust bill that I fought tooth and nail to try to get passed. It had sentencing reform, prison reform, and every other kind of reform in there. In the fall of 2016, a bunch of people said, “Well, let's not pass this right now. The Democrats are going to have an epic victory. We'll have Hillary Clinton, more Democrats, and we can get an even better bill.” You see what happened. The lesson I learned from that was take the reform you can get when you can get it and keep going....

[Debates over which bill to support] became more of a split between some of the inside-the-Beltway organizations that have a particular worldview that is important, versus a lot of the grassroots groups who are really dealing on a daily basis with incarcerated people looking at the actual content of the bill. There were black people and white people on all sides of that. So as somebody who has been frontline 25 years on criminal justice, you would want people to give you the benefit of the doubt. But if folks choose not to, that's just called democracy.

I get outraged when people like Topeka Sam, an African American woman who was incarcerated, brings a dozen formerly incarcerated women to the White House to advocate for reform and is attacked. I get outraged when Shaka Senghor, who did 19 years in prison and almost 10 years in solitary confinement, speaks up for the bill and gets attacked. On Facebook they were called sellouts, Uncle Toms. I don't think it's appropriate when formerly incarcerated African Americans are vilified this way....

Where is this strong bipartisan coalition for sentencing reform [that some claim exists]? I know that they were able to get the Sentencing Reform and Corrections Act out of committee in judiciary, which is good on the Senate side, but there is zero chance that that bill is going to be brought for a vote by Senate Majority Leader Mitch McConnell in its present form, and there’s not even a strategy to get McConnell to check it out, that I can tell. A lot of the Republicans do want sentencing reform, but they can't start there with a critical mass of their other colleagues.

I think that because this is one of the very few areas of bipartisan agreement, there will be multiple opportunities to come back again on criminal justice reform and to make progress.... I would love to see sentencing reform. Fought for it my whole life. Fought for it before it was popular. I just didn't understand why some people in the Senate want us to try to carry a camel through a keyhole in the House. If they have the votes to get sentencing reform in the Senate, God bless them. We couldn't find those votes in the House. We had to carry through the House what we could carry through the House. Nobody would be happier than me to see sentencing reform taken up by either chamber. But we had to get through the House what we could get through the House.

Here's the irony: If sentencing reform does now get taken up, or it's introduced as a part of the First Step Act, or there's some amalgamation between the two and something does get passed with sentencing reform in it, it will only get passed because we got something more modest through the House first.

Some of many prior related posts:

June 19, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Elections and sentencing issues in political debates, Who Sentences? | Permalink | Comments (0)

June 18, 2018

Ailing "ice pick killer" in Texas, seeking to halt his scheduled execution, points to failed efforts in Alabama and Ohio

As reported in this Reuters piece, headlined "Too frail for death row? Texas inmate seeks execution reprieve," a notorious capital defendant has a notable new claim in federal court in an effort to avoid execution. Here are the details:

After two recent botched U.S. executions of inmates with compromised veins, a convicted murderer and rapist is arguing he is too ill to be put to death by lethal injection in Texas later this month.  Lawyers for Danny Bible, a 66-year-old inmate set to be executed on June 27, said in a federal court filing in June that his health and vein access were worse than inmates in Alabama and Ohio whose executions were called off after IV placements failed.

The cases have capital punishment critics questioning whether justice is served by executing a person convicted of horrific crimes but who is now too weak or sick to be considered a threat....  Some death penalty proponents counter that sympathy should not be shown to inmates who they accuse of trying to game the system by filing appeals that take decades to wind through the courts, denying justice to the victims’ families.

The average age of death row inmates has increased in the United States as the number of executions has trended downward, as fewer states conduct lethal injections and appeals take more time.  More than 40 percent of U.S. death row inmates are 50 years of age or older, according to U.S. data and the nonprofit Death Penalty Information Center.

In recent years, death row inmates were just as likely to die awaiting execution as they were to be executed.  Last year, 24 death row inmates across the country died in prison awaiting execution, mostly due to natural causes, while 23 inmates were executed, according to data compiled by Reuters.

Of the first group, six of those inmates died awaiting executions in California, which has the largest death row of 746 inmates but has not conducted an execution since 2006.

In 2016, there were 19 non-execution deaths and 20 executions in the United States, according to the Bureau of Justice Statistics.

Bible was sentenced to death in Texas for a string of rapes and murders that started in the Houston area in 1979 and earned him the nickname “ice pick killer” for the weapon he used.

His lawyers now are seeking to halt his execution, saying he is confined to a wheelchair after he fractured his spine in a prison bus crash in 2003 and has coronary artery disease, diabetes and hypertension.  “Under the current circumstances, attempts to place IVs in Mr. Bible would be futile and likely result in significant pain and suffering,” his lawyer wrote in their court filing.

The Texas Attorney General’s Office did not respond to a request for a comment, and the Texas Department of Criminal Justice said it had full confidence in its ability to complete Bible’s execution.

Lawyers for the inmates whose lethal injections were aborted in the past year say those cases offer a cautionary tale. The execution of convicted murderer Doyle Hamm, 61 and suffering from terminal cancer and chronic illnesses, was called off in February after medical personnel tried for 2-1/2 hours to place an intravenous line. The effort left Hamm with more than a dozen puncture wounds, court records showed, and came after his lawyers argued that any lethal injection attempt would be futile due to his compromised veins.

Ohio also called off the execution of convicted murder Campbell, 69, because death chamber personnel could not find a suitable vein in the inmate, frail from cancer and other diseases. Campbell died about four months later in prison.

Recent prior related posts:

June 18, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences? | Permalink | Comments (1)

Attorney General Sessions laments state recidivism data and impact of Johnson ACCA ruling

Attorney General Jeff Sessions today delivered these remarks to the National Sheriffs' Association Annual Conference, and his comments covered lots of criminal justice ground that I do not recall him previously speaking about directly. The speech is worth reading in full because of all it reveals about how AG Sessions' looks at crime and criminals, and here are just some of the comments that caught my attention:

This is a difficult job, but when rules are fairly and consistently enforced, life is better for all — particularly for our poor and minority communities.  Most people obey the law. They just want to live their lives. They’re not going to go out and commit violent crimes or felonies.

As my former boss, President Reagan used to say, “Most serious crimes are the work of a relatively small group of hardened criminals.”  That is just as true today as it was back then.  That’s why we’ve got to be smart and fair about how we identify criminals and who we put behind bars and for how long....

I want to call your attention to something important.  A few weeks ago, the Department of Justice’s Bureau of Justice Statistics released a new report on the recidivism rate of inmates released from state prisons in 30 states.  This is the longest-term study that BJS has ever done on recidivism and perhaps the largest.  It was designed by the previous administration. The results are clear and very important. The results are of historic importance.  The reality is grim indeed.

The study found that 83 percent of 60,000 state prisoners released in 2005 were arrested again within nine years.  That’s five out of every six.  The study shows that two-thirds of those — a full 68 percent — were arrested within the first three years. Almost half were arrested within a year — one year — of being released.

The study estimates that the 400,000 state prisoners released in 2005 were arrested nearly 2 million times during the nine-year period — an average of five arrests each.  Virtually none of these released prisoners were arrested merely for probation or parole violations: 99 percent of those arrested during the 9-year follow-up period were arrested for something other than a probation or parole violation.

In many cases, former inmates were arrested for an offense at least as serious — if not more so — as the crime that got them in jail in the first place. It will not surprise you that this is often true for drug offenders.

Many have thought that most drug offenders are young experimenters or persons who made a mistake.  But the study shows a deeper concern.  Seventy-seven percent of all released drug offenders were arrested for a non-drug crime within nine years.  Presumably, many were arrested for drug crimes also.  Importantly, nearly half of those arrests were for a violent crime. We can’t give up....

This tells us that recidivism is no little matter.  It is a fact of life that must be understood.  But overall, the good news is that the professionals in law enforcement know what works in crime.  We’ve been studying this and working on this for 40 years.

From 1964 to 1980, the overall violent crime rate tripled.  Robbery tripled. Rape tripled.  Aggravated assault nearly tripled. Murder doubled.  And then, from 1991 to 2014, violent crime dropped by half. Murder dropped by half.  So did aggravated assault.  Rape decreased by more than a third, and robbery plummeted by nearly two-thirds.

That wasn’t a coincidence.  Between that big rise in crime and that big decline in crime, President Reagan and the great Attorney General Ed Meese went to work.  There was the elimination of parole, the Speedy Trial Act, the elimination of bail on appeal, increased bail for dangerous criminals before trial, the issuing of sentencing guidelines, and in certain cases, mandatory minimum sentences.

We increased funding for the DEA, FBI, ATF, and federal prosecutors. And most states and cities followed Reagan’s lead.  Professionalism and training dramatically increased in local law enforcement.  These were the biggest changes in law enforcement since the founding of this country.  These laws were critical to re-establishing public safety.

When a criminal knows with certainty that he is facing hard time, he is a lot more willing to confess and cooperate with prosecutors.  On the other hand, when the sentence is uncertain and up to the whims of the judge, criminals are a lot more willing to take a chance....

The certainty of a significant and fixed sentence helps us get criminals to hand over their bosses, the kingpins and the cartel leaders — and helps remove entire gangs and criminals from the street.  Left unaddressed these organizations only get richer, stronger, more arrogant and violent placing whole neighborhoods in fear.

Law enforcement officers understand that. Sheriff Eavenson and NSA have been critical allies in the fight to preserve mandatory minimums for a long time — and I want to thank you for your strong advocacy.  Many doubt their value.  Maybe this is obvious, but a recidivist can’t hurt the community if he is incarcerated.  A lot of people who would have committed crimes in the 1990s and 2000s didn’t because they were locked up.  Murders were cut in half after 1980....

Look, our goal is not to fill up the prisons.  Our goal is to reduce crime and to keep every American safe.  We should not as a policy keep persons in prison longer than necessary. But clear and certain punishment does in fact make America safer....

One of the most important laws that President Reagan signed into law was the Armed Career Criminal Act.  That’s the law that requires a minimum 15- year sentence for felons caught with a firearm after their third robbery or burglary conviction.

These are not so-called “low-level, nonviolent drug offenders” who are being picked on.  These are criminals who have committed multiple serious offenses.  In 2015 — after 30 years on the books — one critical line of the law was struck down by the Supreme Court as being too vague.

But because of this impactful ruling, every federal prosecutor lost one of their most valuable tools and they ask me for help regularly.  Just one example is Jeffrey Giddings of Oregon.  He had more than 20 convictions since 1991. He was let out of jail after the Court ruling and only 18 days later shot a police officer and held two fast food employees hostage.  He has now been sentenced to another 30 years in prison.  And the last thing he did before being put back in jail was to lash out in a tirade of profanity at police....

More than 1,400 criminals — each convicted of three felonies — have been let out of jail in the three years since the Court ruling.  And so far, more than 600 have been arrested again.

On average, these 600 criminals have been arrested three times since 2015.  A majority of those who have been out of prison for two years have already been arrested again. Here in Louisiana, nearly half of the released ACCA offenders released because of this court ruling have already been rearrested or returned to federal custody....

In this noble calling, all of us in this room are leaders. The NSA is fulfilling its responsibility in this regard. We must communicate sound principles to our policy leaders and to the American people when it comes to reducing crime:

  • A small number of people commit most of the crimes;
  • Those who are jailed for crimes are very likely to commit more crimes—often escalating to violent crimes — after their release; and
  • Congress and our legislatures must consider legislation that protects the public by ensuring that we incapacitate those criminals and deter others

And so the point is this: we should always be looking for effective and proven ways to reduce recidivism, but we must also recognize that simply reducing sentences without reducing recidivism unfairly creates more victims.

This Department of Justice under President Trump is committed to working with you to deliver justice for crime victims and consequences to criminals. We want to be a force multiplier for you.

The President has ordered us to back the women and men in blue and to reduce crime in America. And that’s what we intend to do. We embrace that mission and enforce the law with you.

There is a bit of rich irony to the Attorney General extolling the importance and value of "clear and certain punishment" just before lamenting a SCOTUS ruling that struck down a punishment as too vague to be clear or certain in any way.  That irony aside, I am not at all surprised to see him highlight the depressing new data, first blogged in this prior post, revealing terrible recidivism numbers among those released from state prisons in 2005.  I am not sure from where the ACCA-post-Johnson-release recidivism data comes, but I am sure all these numbers fuel the AG's belief that we should always be inclined to (over-)incarcerate in efforts to improve public safety.

June 18, 2018 in Mandatory minimum sentencing statutes, Purposes of Punishment and Sentencing, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Split SCOTUS outcomes for federal defendants: a plain error win in Rosales-Mireles and an explanation loss in Chavez-Meza

The Supreme Court has handed down this morning its last two sentencing cases, Rosales-Mireles v. United States and Chavez-Meza v. United States, and they are split decisions in every sense. 

In Rosales-Mireles v. United States, No. 16–9493 (S. Ct. June 18, 2018) (available here), Justice Sotomayor writes for the Court ruling in favor of the federal defendant, with Justice Thomas writing the chief dissent joined by Justice Alito.  In Chavez-Meza v. United States, No. 17–5639 (S. Ct. June 18, 2018) (available here), Justice Breyer writes for the Court ruling in favor of the federal government, with Justice Kennedy writing the chief dissent joined by Justices Kagan and Sotomayor.

Here is the Court's opening paragraph in Rosales-Mireles:

Federal Rule of Criminal Procedure 52(b) provides that a court of appeals may consider errors that are plain and affect substantial rights, even though they are raised for the first time on appeal.  This case concerns the bounds of that discretion, and whether a miscalculation of the United States Sentencing Guidelines range, that has been determined to be plain and to affect a defendant’s substantial rights, calls for a court of appeals to exercise its discretion under Rule 52(b) to vacate the defendant’s sentence.  The Court holds that such an error will in the ordinary case, as here, seriously affect the fairness, integrity, or public reputation of judicial proceedings, and thus will warrant relief.

Here is the Court's opening paragraph in Chavez-Meza:

This case concerns a criminal drug offender originally sentenced in accordance with the Federal Sentencing Guidelines.  Subsequently, the Sentencing Commission lowered the applicable Guidelines sentencing range; the offender asked for a sentence reduction in light of the lowered range; and the District Judge reduced his original sentence from 135 months’ imprisonment to 114 months’.  The offender, believing he should have obtained a yet greater reduction, argues that the District Judge did not adequately explain why he imposed a sentence of 114 months rather than a lower sentence.  The Court of Appeals held that the judge’s explanation was adequate.  And we agree with the Court of Appeals.

As regular readers should now come to expect, sentencing cases have a way of producing notable voting patters. Criminal defendants and defense attorneys should be intrigued and encouraged by that both Chief Justice Roberts and the new Justice Gorsuch signed on to the majority opinion in Rosales-Mireles. But defendants and defense attorneys surely will also be troubled that the Chief along with Justices Breyer and Ginsburg were all willing to embrace the "close enough for government work" approach in Chavez-Meza.

June 18, 2018 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

SCOTUS finally grants cert on new cases, including two criminal justice cases

Last Monday, because the Supreme Court issued an order list and opinions with little of interest for criminal justice fans, I sought to keep up my end-of-Term excitement by blogging here about the five remaining SCOTUS criminal cases to be decided in this coming weeks.  Some of those cases are likely to be decided today or later list week, but we already have something exciting from the Justices via this new order list granting cert on five new cases, including two criminal cases (links and descriptions via SCOTUSblog):

Garza v. Idaho: "Whether the 'presumption of prejudice' recognized in Roe v. Flores-Ortega applies when a criminal defendant instructs his trial counsel to file a notice of appeal but trial counsel decides not to do so because the defendant’s plea agreement included an appeal waiver."

Timbs v. Indiana: "Whether the Eighth Amendment’s excessive fines clause is incorporated against the states under the Fourteenth Amendment."

The order list also includes a short dissent from the denial of cert in a Florida capital cases in which Justice Sotomayor laments yet again the Court's failure to take up a claim that Florida's jury instructions "impermissibly diminished the jurors’ sense of responsibility as to the ultimate determination of death, in violation of Caldwell v. Mississippi, 472 U. S. 320 (1985)."

Especially during a time in which financial sanctions are (finally) getting a lot more attention and there is a ever-growing libertarian/conservative concern about fines and forfeitures, the Timbs case if very interesting and is now my favorite "what to watch" case going into the next Term.

UPDATE: Over at Crime & Consequences here, Kent Scheidegger has a bit of an early preview of Garza in a post titled "Clients, Lawyers, and Appeals."  And this second C&C post, titled "Excessive Fines and Incorporation," takes a quick look at Timbs.

MORE:  SCOTUSblog has more on Timbs and Garza (and the other grants) in this post by Amy Howe.

June 18, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (7)

June 17, 2018

Focus on fathers behind bars on Father's Day

Last month, to mark Mother's Day, I collected in this post a lot of commentary about mothers in prison.  I have noticed far less comparable commentary to mark  Father's Day (perhaps because everyone is busy debating what Phil Mickelson did yesterday).  But I have seen these two new pieces authored by Pat Nolan:

June 17, 2018 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

"What Tocqueville Would Think of Today’s Criminal Justice Reforms"

The title of this post is the headline of this interesting commentary authored by Emily Ferkaluk which leans on a historic figure while advocating for the FIRST STEP Act.  Here are excerpts:

Alexis de Tocqueville, a French aristocrat who toured American penitentiaries at the height of the 19th-century penal debate in order to help guide French penal reform, would commend us for the reform measures contained in the First Step Act.

In his report, “On the Penitentiary System in the United States and Its Application to France,” Tocqueville stressed that any criminal justice reform must moderately balance two goals: preserving the rights of society, and preserving the rights of prisoners.  Society, he argued, has a right to promote and protect public safety and order by punishing those who break the law—and to regain at least some of the money it spends in doing so.  On the other hand, the prisoner has a right to an education that prepares him to re-enter society as a productive citizen.

Both rights are preserved through the right application of corrective justice — a balance of proportional retribution and rehabilitation.  The First Step Act protects both of these rights—the rights of society and of the prisoner — by proposing a recidivism program that conducts risk assessments of prisoners.  These assessments would weigh the likelihood of individual prisoners recommitting a crime....

Furthermore, time credit programs that are joined to a risk assessment system work because they let wardens and prison administrators determine whether a prisoner presents a low risk to the community.  Tocqueville would have approved of this kind of localized authority.  In fact, during his visit to America, he was pleasantly surprised at the amount of authority the superintendent of prisons wielded over prison discipline.  He believed superintendents were best suited to make those decisions, being the closest to prisoners and having observed their behavior and reformation.

Tocqueville also identified certain types of incentives that truly rehabilitate prisoners — particularly family-oriented incentives. His interviews with prisoners in solitary confinement in the Philadelphia Penitentiary led him to remark that “memories of their family have an extreme power over their souls,” thus disposing them to rehabilitation.

These very incentives are present in the First Step Act. One incentive is to be relocated to a facility closer to home. Another is to enroll prisoners in a program that gives them “family relationship building, structured parent-child interaction, and parenting skills.”  A third option is to allow certain prisoners to go home for pre-release custody.  All of these cohere with Tocqueville’s findings....

When Tocqueville was first inspecting American penitentiaries, only a handful of states (predominantly New York and Pennsylvania) had begun to implement new prison disciplines such as solitary confinement and prison labor.  These penal disciplines proved effective, and despite their relative newness, Tocqueville recommended the French adopt the same disciplines.

Tocqueville preferred democratic politics to theory, and action in one direction over endless debate.  Commenting on the penal reforms made by the people through their state legislatures, he said, “Perhaps this prudent and reserved reform, effected by an entire people, whose entire habits are practical, will be better than the hasty trials that would result from the enthusiasm of ardent minds and the seduction of theories.”

Tocqueville’s words of wisdom should encourage us to pass the proposed recidivism reform measures without fear of killing any future criminal justice reform.  This first step toward penal reform is not our last.

Some of many prior related posts:

June 17, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Prisons and prisoners, Who Sentences? | Permalink | Comments (2)