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July 14, 2018

The American Conservative reviews how "Law-and-Order Texas Takes on Criminal Justice Reform"

I spotlighted in this post last week this lengthy commentary in The American Conservative under the full headline "Where the Right Went Wrong on Criminal Justice: Ending our 'incarceration nation' would help return conservatives to their roots, acting on principles most of them already hold."  Now comes the second extended piece in a series appears here under the full headline "Law-and-Order Texas Takes on Criminal Justice Reform:Seeking alternatives to bloated prison populations and recidivism, the Lone Star state leads others to pursue to the same." Here are excerpts

Though Jerry Madden had no prior background in corrections or law enforcement, he helped change the course of both fields. Madden was serving in the Texas House in 2005 when he got called into the speaker’s office. Speaker Tom Craddock, a fellow conservative Republican, told Madden he would be chairing the corrections committee. Madden asked Craddock what he should do. Craddock uttered eight words that changed Madden’s life and altered the course of American corrections policy: “Don’t build new prisons, they cost too much.”

Texas, even more than most other states at the time, had been on a prison-building spree. It had reached a point where the return on investment was low. Madden used his training as a statistical engineer to hunt down the data about what wasn’t working, or could easily be changed, throughout the corrections system. Along with his counterpart in the state Senate, John Whitmire, Madden put together a package to overhaul parts of the state’s criminal justice system....

Recidivism fell quickly in Texas. Back in 2005, the state was paroling 21,000 prisoners, 11,000 of whom returned. A decade later, the state paroled 28,000 prisoners and about 4,500 came back. “It’s an effort to continue getting the gains in public safety we’ve been getting for 20 years now, while also reducing our extraordinarily high levels of incarceration,” says Vikrant Reddy, a senior fellow at the Charles Koch Institute.

The success of the Texas model stirred other states to replicate it, beginning with Kansas, Ohio, and South Carolina. The fact that Texas had a “hang ’em high” reputation, built not just on high incarceration rates but also on its status as the nation’s most active executioner, helped convince conservative legislators in other states that the idea of providing treatment for prisoners wasn’t some bleeding-heart proposal. Rather it was a skeptical redirection of government funds away from a strictly brick-and-mortar approach that demonstrably had not worked.

And so the Texas experiment became a model elsewhere. Cost savings and statistics that might on paper have been just as impressive out of California or Vermont wouldn’t have swayed so many red-state legislators, Reddy says, particularly the Deep South converts the criminal justice reform movement has found in places such as Louisiana, Mississippi, and Georgia. “It was a tremendous stroke of luck for the country that Texas was the first to step out of the gate,” says Adam Gelb, who directs the Pew Charitable Trusts’ public safety performance project, which provides technical assistance to states on criminal justice policies.

Nearly three-dozen states have now enacted policies that mirror, to a greater or lesser extent, the Texas template. Every state has done something to address prisoner reentry programs and employment. The impact of these efforts is now being felt in Washington.

Prior related post:

July 14, 2018 in Elections and sentencing issues in political debates, Scope of Imprisonment, Who Sentences | Permalink | Comments (6)

July 13, 2018

Some midsummer highlights from Marijuana Law, Policy & Reform

Depending on one's perspective and professional calendar, the middle of July might feel more like the start of summer (for SCOTUS followers) or more like the end of summer (for law profs with classes starting in August). But with my favorite midsummer classic just a few days way, I am inclined to say call around now midsummer.

I am also inclined to note that it has been nearly a month since I did a full round-up of posts of note from the blogging I do over at Marijuana Law, Policy & Reform, and so I will head into the weekend by here rounding up some MLP&R highlights (for MLB highlights, the Home Run Derby is Monday):

July 13, 2018 in Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Detailing how recent reforms have helped Louisiana shrink its incarceration rate to no longer be nation's leader

Ranking have a way of capturing attention, and this new Pew article reporting on a notable change in state rankings caught my eye.  The piece is headlined "Louisiana No Longer Leads Nation in Imprisonment Rate: New data show impact of 2017 criminal justice reforms," and here are excerpts:

Louisiana no longer leads the nation in imprisonment, one year after enacting a landmark package of 10 criminal justice reform laws. In June 2018, Oklahoma became the U.S. state with the highest imprisonment rate, replacing Louisiana, which had been the nation’s prison capital for nearly 20 years.

The numbers are based on calculations by The Pew Charitable Trusts, which analyzed data from the state corrections departments and population estimates from the U.S. Census Bureau. At the beginning of June, the imprisonment rate in Louisiana was 712 per 100,000 residents, compared with 719 per 100,000 residents in Oklahoma. Louisiana now ranks second in imprisonment. The numbers in both states far exceeded the national rate, including state and federal prisoners, which was 450 per 100,000 residents at the end of 2016.

The latest data reinforce a central lesson of criminal justice reform in the past decade: States’ policy choices can help control the size and cost of their prison systems and protect public safety. Although implementation of Louisiana’s reforms is still in the early stages, the Department of Public Safety and Corrections and the Commission on Law Enforcement released a report in June with some initial results that show quick and solid progress since the first pieces of legislation went into effect in August 2017....

After a year’s worth of data analysis and study by the task force, the Legislature in 2017 passed and the governor signed the most significant overhaul of criminal justice laws in state history. The package of 10 bills — sponsored by six Republicans, two Democrats, and one independent — steers people convicted of less serious crimes away from prison, strengthens incarceration alternatives, reduces prison terms for those who can be safely supervised in the community, removes barriers to re-entry into the community, and bolsters programs that support victims of crime.

Louisiana’s landmark reforms are perhaps the most dramatic example of a state taking greater control of its prison growth and spending, but many others have acted as well. More than 30 states have adopted reforms, spurring shifts in imprisonment rate rankings. In 2007, for example, Texas began investing hundreds of millions of dollars in various treatment and diversion programs.  The state dropped from third place in 2008 to seventh by the end of 2016, the most recent year for which complete national data are available. In South Carolina, comprehensive reforms enacted in 2010 helped move the state from ninth to 20th.

Pew also this week released this Fact Sheet on state reform efforts under the heading "35 States Reform Criminal Justice Policies Through Justice Reinvestment."

July 13, 2018 in Prisons and prisoners, Scope of Imprisonment, State Sentencing Guidelines, Who Sentences | Permalink | Comments (3)

"'Finding' a Way to Complete the Ring of Capital Jury Sentencing"

The title of this post is the title of this paper newly posted on SSRN and authored by Maria Kolar. Here is its abstract:

In the modern death penalty era in America, two findings have emerged as generally required before a murderer can be sentenced to death.  First, the decisionmaker must find that the murder was especially egregious, due to specific, statutorily-defined characteristics of the murder or the murderer — typically referred to as “aggravating circumstances.”  Second, the decisionmaker must find that any aggravating circumstances in the case “outweigh” any “mitigating circumstances,” i.e., anything that makes the crime or the defendant seem less deserving of death.  Remarkably, regarding the second finding (the weighing finding) it remains unclear who “the decisionmaker” must be and how convinced the decisionmaker must be — even though the Supreme Court held back in 2002, in Ring v. Arizona, that the Sixth Amendment mandates that the decisionmaker for the aggravating circumstance finding must be a jury and that the jury must be convinced “beyond a reasonable doubt.”

This Article asserts that Ring’s use of the word “fact” to describe the kind of determination that must be made by a jury has completely undermined the functional and elements-based approach of Ring.  This approach, properly understood, mandates that the Sixth Amendment jury requirement applies to any finding (not just “fact”) that is required for a death sentence.  This Article traces the Court’s use of the term “finding” in this context — from the beginning of the modern death penalty era in 1976, through Apprendi v. New Jersey in 2000, Ring in 2002, and Hurst v. Florida in 2016 — and asserts that the Apprendi Court’s use of the broader term “finding” in this arena is more faithful to the Sixth Amendment and to substantive state law.  This Article catalogs how state supreme courts and federal circuit courts overwhelmingly concluded (post-Ring) that the capital weighing finding is not subject to the Sixth Amendment, because it is not a “fact” under Ring — aided by the Court’s Eighth Amendment “death eligibility” doctrine, which misleadingly suggests that defendants become “eligible” for a death sentence based solely on the finding of an aggravating circumstance.

The Court’s broader approach in Hurst does provide some hope in this realm and has led to momentous changes in Delaware, Florida, and Alabama. And all but two states now insist that a jury make all the findings that are required for a death sentence under state law.  Nevertheless, while nearly 75% of the current thirty-one death penalty states require a weighing-type finding for a valid death sentence, almost 75% of these states still fail to require that this finding be made beyond a reasonable doubt, as the Sixth Amendment mandates.  There is still much work to be done.

July 13, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

July 12, 2018

AG Jeff Sessions "surges" federal war against synthetic opioids in select counties

This new press release from the US Justice Department, headed "Attorney General Jeff Sessions Announces the Formation of Operation Synthetic Opioid Surge (S.O.S.)," reports on a notable new federal front in the modern war on drugs. Here are the details (with my emphasis added):

Attorney General Jeff Sessions today announced Operation Synthetic Opioid Surge (S.O.S.), a new program that seeks to reduce the supply of deadly synthetic opioids in high impact areas and to identify wholesale distribution networks and international and domestic suppliers.

As part of Operation S.O.S., the Department will launch an enforcement surge in ten districts with some of the highest drug overdose death rates. Each participating United States Attorney’s Office (USAO) will choose a specific county and prosecute every readily provable case involving the distribution of fentanyl, fentanyl analogues, and other synthetic opioids, regardless of drug quantity. The surge will involve a coordinated DEA Special Operations Division operation to insure that leads from street-level cases are used to identify larger scale distributors. Operation S.O.S. was inspired by a promising initiative of the United States Attorney’s Office in the Middle District of Florida involving Manatee County, Florida.

"We at the Department of Justice are going to dismantle these deadly fentanyl distribution networks. Simply put, we will be tireless until we reduce the number of overdose deaths in this country. We are going to focus on some of the worst counties for opioid overdose deaths in the United States, working all cases until we have disrupted the supply of these deadly drugs," Attorney General Sessions said. "In 2016, synthetic opioids killed more Americans than any other kind of drug.  Three milligrams of fentanyl can be fatal — that's not even enough to cover up Lincoln's face on a penny. Our prosecutors in Manatee County, Florida have shown that prosecuting seemingly small synthetic opioids cases can have a big impact and save lives, and we want to replicate their success in the districts that need it most.  Operation S.O.S. — and the new prosecutors who will help carry it out — will help us put more traffickers behind bars and keep the American people safe from the threat of these deadly drugs."...

In Manatee County, a county just south of Tampa with a population of about 320,000, overdoses and deaths skyrocketed in 2015 (780 overdoses/84 opioid related deaths) and 2016 (1,287 overdoses/123 opioid related deaths). In summer of 2016, local law enforcement reported frequent, street-level distribution of fentanyl and carfentanil for the first time.

To combat this crisis, the Middle District of Florida committed to prosecuting every readily provable drug distribution case involving synthetic opioids in Manatee County regardless of drug quantity.  The effort resulted in the indictments of forty five traffickers of synthetic opioids.  Further, from the last six months of 2016 to the last six months of 2017, overdoses dropped by 77.1% and deaths dropped by 74.2%. Overall, the Manatee County Sheriff’s Office went from responding to 11 overdoses a day to an average now of less than one per day.

I am not at all keen on the idea of federalizing every small local drug case, but these reported data from Manatee County, Florida leads me to understand why AG Sessions might want to try to expand a program that he believes has proven distinctly effective. The Attorney General also delivered this speech in conjunction with the announcement of this new surge. Here is how he described the new initiative:

It’s called Operation Synthetic Opioid Surge — or S.O.S.

I am ordering our prosecutors in 10 districts with some of the highest overdose death rates—including this one—to systematically and relentlessly prosecute every synthetic opioid case. We can weaken these networks, reduce fentanyl availability, and save lives.

We are going to arrest, prosecute, and convict fentanyl dealers and we are going to put them in jail. When it comes to synthetic opioids, there is no such thing as a small case.

Three milligrams of fentanyl can be fatal. That’s equivalent a pinch of salt. It’s not even enough to cover up Lincoln’s face on a penny. Depending on the purity, you could fit more than 1,000 fatal doses of fentanyl in a teaspoon.

I want to be clear about this: we are not focusing on users, but on those supplying them with deadly drugs.

Manatee County, Florida shows that a united and determined effort, focusing on fentanyl dealers, can save lives. Your counterparts in the U.S. Attorney’s Office in the Middle District of Florida tried this strategy in Manatee County, which is just south of Tampa. Like many parts of this country, they had experienced massive increases in opioid deaths in 2015 and 2016.

In response, they began prosecuting synthetic opioid sales, regardless of the amount. They prosecuted 45 synthetic opioids traffickers—and deaths started to go down. From the first six months of 2016 to 2017, overdose deaths dropped by 22 percent. This past January, they had nearly a quarter fewer overdoses as the previous January. The Manatee County Sheriff’s Office went from responding to 11 overdoses a day to an average of one a day. Those are remarkable results.

As you implement this proven strategy, I am sending in reinforcements to help you. Last month, I sent more than 300 new AUSAs to districts across America .... It was the largest prosecutor surge in decades.

Today I am announcing that each of these ten districts where the drug crisis is worst will receive an additional prosecutor. As a former AUSA and U.S. Attorney myself, I know what you can do — and my expectations could not be higher. Our goal is to reduce crime, reduce fentanyl, and to reduce deaths, plain and simple. I believe that this new strategy and these additional prosecutors will have a significant impact.

July 12, 2018 in Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

US Sentencing Commission releases big new report detailing "inconsistently" applied federal mandatory minimum prior drug offense enhancement

851_coverThe United States Sentencing Commission today issued this big new report, titled "Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders," which examines the use and impact of the huge mandatory sentence increases for drug offenders who have a prior felony drug conviction (which are almost solely in the control of prosecutors and often called 851 enhancements).  A summary account of the 59-page report can be found on this USSC webpage and this two-page "Report-At-A-Glance" publication.  Here are highlights from the web account:

This publication examines the application and impact of the statutory penalty enhancement for federal drug trafficking offenders with a prior felony drug conviction (21 U.S.C. § 851). To trigger these enhanced penalties, a prosecutor must file an information providing notice of which prior convictions support the enhanced penalties.

Using fiscal year 2016 data, this publication provides comparisons between all offenders who appeared eligible for an 851 enhancement, offenders for whom an 851 information was filed, offenders for whom an 851 information was filed and later withdrawn, and offenders who remained subject to the 851 enhancement at sentencing.  The analysis builds on the Commission's 2011 report to Congress, in which the Commission recommended that Congress reassess the severity and scope of 851 enhancements.

Key Findings

Cases in which an 851 enhancement applied are rare.

  • The government filed an 851 information against 757 drug trafficking offenders, which represents just 12.3 percent of 6,153 offenders eligible for an 851 enhancement in fiscal year 2016.
  • The number of offenders is even smaller after considering cases in which the government withdrew the 851 information or made a motion for substantial assistance relief.  There were only 583 cases in which the 851 information was not withdrawn by the time of sentencing, and only 243 offenders (3.9% of eligible offenders) who ultimately remained subject to an enhanced mandatory minimum penalty.

The 851 enhancements were applied inconsistently, with wide geographic variations in the filing, withdrawal, and ultimate application of the 851 enhancements for eligible drug trafficking offenders.

  • In the majority of districts in fiscal year 2016, at least one-quarter of all drug trafficking offenders were eligible for an 851 enhancement.
  • There was, however, significant variation in the extent to which the enhanced penalties were sought against eligible offenders, ranging from five districts in which an 851 enhancement was sought against more than 50 percent of eligible drug trafficking offenders to 19 districts in which the enhancement was not sought against any of the eligible offenders.
  • Districts also varied significantly in the rate at which an 851 information was filed and later withdrawn.  Several of the districts with the highest rates of filing an 851 information also had among the lowest rates of withdrawal. Conversely, some districts have higher rates of withdrawal even where they appear to be more selective in filing an 851 information.

The 851 enhancements resulted in longer sentences for the relatively few drug offenders to which they apply.

  • In fiscal year 2016, offenders against whom an 851 information was filed received an average sentence that was over five years longer (61 months) than eligible offenders against whom the information was not filed (147 months compared to 86 months).
  • Offenders who remained subject to an enhanced mandatory minimum penalty at sentencing had average sentences of nearly 19 years (225 months), approximately ten years longer than the average sentence for offenders who received relief from an enhanced mandatory minimum penalty (107 months) and nearly 12 years longer than the average sentence for eligible offenders against whom the information was not filed (86 months).

While 851 enhancements had a significant impact on all racial groups, Black offenders were impacted most significantly.

  • Black offenders comprised the largest proportion of drug trafficking offenders (42.2%) eligible for an 851 enhancement in fiscal year 2016.
  • Black offenders constituted the majority (51.2%) of offenders against whom the government filed an information seeking an 851 enhancement, followed by White offenders (24.3%), Hispanic offenders (22.5%), and Other Race offenders (2.0%).
  • Such an information was filed against nearly 15 percent (14.9%) of Black offenders who were eligible to receive an 851 enhancement. This rate was higher than the rates for White offenders (11.4%), Other Race offenders (11.7%), and Hispanic offenders (9.4%).
  • The prevalence of Black offenders was even more pronounced for offenders who remained subject to an enhanced mandatory minimum penalty at sentencing, with Black offenders representing 57.9 percent of such offenders.

The is much to be drawn from and said about this data, but an important first-take summary is that this report proves yet again how mandatory minimums controlled by prosecutors can often operate to create rather than reduce sentencing disparities. And, disconcertingly, here is yet another report suggesting that black defendants face the hardest brunt of these disparities.

July 12, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

"The Quest to Get a Pardon in the Trump Era: ‘It’s Who You Know’"

The title of this post is the headline of this notable new New York Times piece documenting various realities that are well-known to those who have been paying attention to the clemency activities of recent Presidents.  Here are excerpts from a terrific piece worth reading in full:

Few constitutional powers lie so wholly at the whims of the president as the power to pardon. No details need to be worked out beforehand and no agency apparatus is needed to carry a pardon out.  The president declares a person officially forgiven, and it is so.

A layer of government lawyers has long worked behind the scenes, screening the hundreds of petitions each year, giving the process the appearance of objectivity and rigor. But technically — legally — this is unnecessary.  A celebrity game show approach to mercy, doling the favor out to those with political allegiance or access to fame, is fully within the law.

The show isn’t new.  Absolving political allies is a notorious if decades-old practice, and Bill Clinton was hardly sticking to procedure when he included friends, family and the well-connected in his last-minute clemency spree.  But Mr. Trump is not waiting for the last minute.

On Tuesday, he issued more pardons, this time for two Oregon ranchers who had been serving sentences for arson on federal land. Interior Secretary Ryan Zinke was apparently among the ranchers’ strongest supporters.  Mr. Trump has said he is considering pardons for Martha Stewart, the lifestyle guru, and Rod Blagojevich, the former governor of Illinois, and people whose cases are championed by professional football players.  He has rebuffed questions as to whether he was planning to pardon any of his own associates — or himself, for that matter.

Pardon seekers have been watching all this.  Having once put their hopes in an opaque bureaucratic process, they are now approaching their shot at absolution as if marketing a hot start-up: scanning their network of acquaintances for influence and gauging degrees of separation from celebrity.  What’s the best way to get a letter to Sean Hannity, the Fox News host and close Trump ally?  How hard would it be to pull aside Robert Jeffress, the prominent Trump-backing pastor, after a church service?

“It’s who you know now,” said Weldon Angelos, whose cause for clemency has been supported by politicians, judges and celebrities. At the consent of prosecutors, Mr. Angelos was released from prison in 2016, after serving a quarter of a 55-year sentence on a drug-related conviction. Now he is seeking a full pardon.  “Everyone’s now trying to get their names out there, to get some buzz,” he said. “That’s the strategy I’m seeing”

Self-promotion in pursuit of forgiveness comes naturally to some and strikes others as absurd.  But there is broad agreement on one point. The standard, procedural route to presidential clemency — a process that has become ever more impenetrable — has hardly been a portrait of justice itself...

Clemency petitions go through the Office of Pardon Attorney in the Justice Department, a system set up more than a hundred years ago to lessen the risks and hassles of leaving an entire nation’s pleas for compassion to one person.  For decades, the process worked smoothly, and hundreds of clemency grants were issued each year. President Dwight D. Eisenhower alone granted over 1,000 pardons.

But starting about 40 years ago, “the prosecutors really got a hold of the process,” said Margaret Love, who was the Pardon Attorney from 1990 to 1997, and now represents clemency applicants. “They became increasingly hostile to the pardon power.”  Even as laws have grown harsher, the number of pardons has dwindled significantly. “It is so secretive and the standards are so subjective,” Ms. Love said.  “They operate like a lottery. Except a lottery is fair.”

In 2014, the Obama administration set up a clemency initiative that led to 1,715 sentence commutations, by far the most of any president.  Still, this accounted for only about 5 percent of the commutation petitions submitted during his two terms. As for full pardons, the Obama administration was stingier than most of its predecessors. The traditional clemency process, as a pardon attorney described in her 2016 resignation letter, remained sidelined and backlogged.

“The process,” wrote Luke Scarmazzo of his attempt at clemency in the Obama years, “was a bureaucratic nightmare.”  In 2008 Mr. Scarmazzo was sentenced to more than two decades in prison for running a medical marijuana dispensary in California. He and his co-defendant, Ricardo Montes, spent months working on an application, but in the end Mr. Montes received a commutation, while Mr. Scarmazzo did not.  Now, “instead of support from career politicians and judges, we’re seeking support from celebrities and influential social icons,” Mr. Scarmazzo wrote in an email from prison.  “We’re less focused on pleasing the D.O.J. bureaucracy and more focused on grabbing the attention of the Oval Office.”

Much of the recent focus on clemency has either been on those, like Ms. Johnson, who are seeking release from prison, or on the famous pardon recipients like Dinesh D’Souza, the conservative provocateur, and I. Lewis Libby Jr., the former aide to Dick Cheney.  But there are countless people living quietly and whose time in the criminal justice system is years in the past, but who, because of the ever-expanding tally of consequences for felony convictions, feel permanently confined.

July 12, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Will guilty plea and statement, after another baby's death, deter reliance on faith-healing more than prior prison terms for Oregon church members?

The question in the title of this post is prompted by this remarkable local crime and punishment story out of Oregon, headlined "Faith-healing parents plead guilty in death of newborn twin.' Here are some essentials (with a few details emphasized) from a case that highlights the potential limits of traditional punishment to deter when individuals are motivated by an even higher power:

The parents of a twin girl who died hours after a home birth attended by dozens of people from the faith-healing Followers of Christ Church pleaded guilty Monday to negligent homicide and criminal mistreatment.  It marked the fifth criminal case in Clackamas County after a child's death in the church community over the last nine years but the first to end in a plea deal.  The mother, Sarah Elaine Mitchell, 25, and father, Travis Lee Mitchell, 22, each were sentenced to prison for six years and eight months.

In an unusual development, the Mitchells not only acknowledged their failure to provide necessary medical care for their newborn but also said in a statement read aloud by one of their lawyers that "everyone in the church should always seek adequate medical care for our children.''

Sarah and Travis Mitchell are members of the Followers of Christ, which traces its origin to the Pentecostal movement of the late 19th century. Sarah Mitchell is a granddaughter of the church founder, Walter White. Her father is also named Walter White.  Sarah Mitchell's father signed the statement, which will be prominently posted inside the church for all to read, under the terms of the plea agreement....

The guilty pleas came in a Clackamas County courtroom before more than 50 church supporters and Multnomah County Circuit Judge Eric J. Bergstrom, who who helped the parties reach a settlement.... Senior Deputy District Attorney Bryan Brock called the outcome of the case, with the couple accepting responsibility and issuing a public statement, a "landmark resolution."

"These are senseless and avoidable deaths, and we keep asking ourselves what will it take" to convince others in the church to get the right medical care for their children, Brock said.  He said he hoped the message will be for church followers to "seek medical attention and prayer. They're not mutually exclusive.''

Sarah Mitchell's lawyer Stephen Houze called the couple "utterly sincere, decent, caring human beings," who have suffered with the loss of one of their children while separated in custody. They have had in-jail visits with their surviving daughter, who is now 16 months old and bonding with each parent, Houze said. She remains in foster care. The parents are accepting responsibility for their actions "knowing a price must be paid," Houze said.

The Mitchells' baby died in the master bedroom at the Oregon City home of Sarah Mitchell's parents.  It was the same place where Sarah Mitchell's older sister Shannon Hickman delivered a premature baby boy who died eight hours after birth in September 2009.

The first of the twins, Evylen, was born in a breech position -- bottom first, a significant potential complication -- at 2:30 p.m., weighing only 3 pounds, 8 ounces, nearly two months premature. Twenty-three minutes later, Ginnifer was born at 2:53 p.m., weighing only 3 pounds, 6 ounces. Breathing problems persisted for both newborns but no one called 911 or took the girls to a hospital. At 4:36 p.m., a relative texted others, asking, "R u guys hearing that the second baby is dark and they r wanting prayers?" according to investigators.

Over four hours, Ginnifer fought for her life, trying to take oxygen into her underdeveloped lungs. At 6:05 pm., Travis Mitchell "laid on hands" and the family took turns praying for healing as the baby continued labored breathing and changed colors. Ginnifer died at 7 p.m. that day. "I knew she was dead when she didn't cry out anymore,'' her father said, according to court documents.

Both Sarah and Travis Mitchell admitted in interviews that their daughter's death was just like the Hickman case, Brock wrote in court papers.  A jury convicted Hickman and her husband of second-degree manslaughter and they were sentenced to six years and three months in prison for not seeking medical treatment for their son born at 32 weeks. "The Mitchells were more knowledgeable of the risks and consequences to their newborns from having experienced the Hickman case," Brock wrote in court documents.

Also present at the birth were Sarah Mitchell's in-laws, three mid-wife birthing assistants and other family, including Sarah Mitchell's eldest sister, Stephanie Edwards, and her husband, Brian, as well as church members....

"We hope that this office is never again forced to prosecute parents in the Followers of Christ Church for neglecting the medical care of their children," the Clackamas County District Attorney's Office said in a statement. "However, we continue to stand ready to do so if the members of that congregation do not heed the call of this family."

The couple showed no emotion in court. As each stood to be handcuffed by sheriff's deputies before they were led out of the courtroom, Travis Mitchell, a 2014 graduate of Oregon City High School, mouthed "I love you" to his parents. The Mitchells will get credit for the 13 months they've already been in custody and credit for good time served. They'll face three years of post-prison supervision.

I always find stories of parents convicted and imprisoned for allowing their children to die are always heart-wrenching, and I find it almost hard to believe that the same large family would allow two newborns to die in the same room in their house in seemingly the same way only years apart.  And, as the title of this post is meant to highlight, it is remarkable to realize that a prior manslaughter conviction with a significant prison term was itself not enough to deter the family from the same sort of criminal behavior the second time around.

For the sake of everyone involved, I sure hope a statement prominently posted inside the church will start leading these church members to see the importance of getting traditional medical care. But I can understand why prosecutors want to stress their willingness to keep prosecuting neglectful parents. 

July 12, 2018 in Offender Characteristics, Offense Characteristics | Permalink | Comments (4)

July 11, 2018

Drug company succeeds in getting Nevada execution using its drug postponed

As reported in this local article, "Nevada’s plan to execute a convicted murderer with a never-before-used combination of drugs is on hold for at least 60 days." Here is more:

The state was planning to use three drugs — midazolam (a sedative), fentanyl (the high-potency opioid) and cisatracurium (a paralytic) — to execute Scott Dozier on Wednesday night.

Clark County District Judge Elizabeth Gonzalez ruled in favor of the company that makes midazolam, which sued the state, saying Nevada had illegitimately acquired the product for the execution. It wants the state to return its stock of the drug to the company. Gonzalez granted a temporary restraining order. “If the state is permitted to use the midazolam manufactured by plaintiff, plaintiff has shown a reasonable probability it will suffer irreparable damages,” Gonzalez said in her Las Vegas court.

The drug maker, Alvogen, and the state are scheduled to return to court September 10 for another hearing in the case.

The execution would have been the first time that fentanyl, one of the central drugs in the US opioid epidemic, has been used in a capital punishment case in the United States, said Robert Dunham, executive director of the Death Penalty Information Center. It would likely have been a first for cisatracurium to be used as well, he said.

Dozier, 47, is not making legal challenges to halt his execution. “Life in prison isn’t a life,” he told the Las Vegas Review-Journal. “This isn’t living, man. It’s just surviving.”... His attorney, Thomas Ericsson, told CNN that his client wants to be executed.

Although Dozier is not trying to stop his execution, there is opposition to the drug cocktail the state plans to use in carrying out the death sentence. “Nevada should not use prisoners as guinea pigs in experimental executions, even if they ask to die,” tweeted the ACLU of Nevada.

Dozier was convicted of first-degree murder in the death of Jeremiah Miller, who was killed and dismembered in 2002. The victim’s torso was found in a suitcase dumped in a trash bin in Las Vegas, according to the Nevada Department of Corrections. Dozier was also convicted of second-degree murder in the death of another victim found buried in the Arizona desert.

Prior related posts:

July 11, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (9)

Isn't it about time AG Jeff Sessions stops talking about "surging violent crime"?

The question in the title of this post is prompted by a comment appearing in this new Justice Department press release headlined "Attorney General Jeff Sessions Welcomes Brian A. Benczkowski as Assistant Attorney General for the Criminal Division."  Here is the start of this release with a key phrase highlighted:

Attorney General Jeff Sessions today welcomed the confirmation of Brian Allen Benczkowski as the Department of Justice’s Assistant Attorney General for the Criminal Division. “Brian is an outstanding lawyer with a diverse public service and criminal law background spanning over 20 years,” said Attorney General Sessions.  “This will be the sixth senior position Brian has held at the Department, and we are fortunate to have someone with his breadth of experience and strong leadership skills willing to serve again.  At a time like this — with surging violent crime and an unprecedented drug epidemic — this position is especially important.”

Had AG Sessions been speaking in January 2017, I could see a plausible basis for him to talk about it being "a time ... with surging violent crime."  But circa July 2018, all indications seem to be that violent crime is back to declining at least slightly: (1) the latest official FBI release reported that "overall violent crime decreased 0.8 percent in the first six months of 2017 compared with the same time frame in 2016," (2) the violent crime survey from the Major Cities Chiefs association for year-end 2017 and for the first part of 2018 show violent crime decreasing, and (3) the Brennan Center recently found, in a "final analysis of crime rates in 2017, ... an overall decline in rates of violent crime, murder, and overall crime in the 30 largest American cities."

I understand why and how politicians end up being sloppy with crime and punishment rhetoric, and I am not troubled when AG Sessions says violent crime is too high or employs similar terminology when espousing his tough-on-crime philosophy and policies.  But facts matter and should matter to the Attorney General.  And, according to all the data of which I am now aware, the simple fact is that the United States is not right now experiencing "surging violent crime."

So, in addition to wanting also to welcome Brian Benczkowski as Assistant Attorney General for the Criminal Division, I want to request that he be a bit more conscientious with his crime rhetoric than his boss (and especially his boss's boss).

July 11, 2018 in National and State Crime Data, Who Sentences | Permalink | Comments (4)

Quick and helpful look at some of Judge Brett Kavanaugh's criminal justice work

Over at his SDFLA Blog, David Oscar Markus has this helpful new post titled "A look into some of Judge Kavanaugh's criminal justice opinions." I recommend the whole post, and here are two particular opinions flagged there that ought to be of particular interest to sentencing fans: 

1. Acquitted Conduct. Many people, lawyers and non-lawyers alike, are shocked that sentencing judges are permitted to use acquitted conduct in fashioning a federal sentence. Kavanaugh wrote about the practice here in a thoughtful concurrence (in denying en banc review) shortly after Blakely and Booker. He said that although the law currently permits it, district judges have the discretion NOT to use acquitted conduct and his advice is that they should NOT use it at sentencing.  Here's a portion:

Allowing judges to rely on acquitted or uncharged conduct to impose higher sentences than they otherwise would impose seems a dubious infringement of the rights to due process and to a jury trial. If you have a right to have a jury find beyond a reasonable doubt the facts that make you guilty, and if you otherwise would receive, for example, a five-year sentence, why don’t you have a right to have a jury find beyond a reasonable doubt the facts that increase that five-year sentence to, say, a 20-year sentence?....
3. Sentencing.  Here's a dissent in which Kavanaugh sides with the Government, calling the majoirty opinion "confounding." The majority opinion explains that the district judge did not adequately explain the upward variance. Kavanaugh disagrees: "Seizing on the Guidelines range as if it were talismanic (which it is not post-Booker), the majority opinion concludes that the District Court committed procedural error by failing to adequately explain Matthews’ above-Guidelines sentence. I disagree."

I am inclined to mostly agree with David's post's overall assessment of Judge Kavanaugh: "So after reading these opinions, my take is that Kavanaugh appears to be more in line with Roberts.  He won't be a Scalia and he won't be an Alito.  But he'll probably be more sympathetic to criminal justice issues than Kennedy was."  But I would add that I expect Judge Kavanaugh to be less sympathetic to capital defendants that Justice Kennedy has been, but possibly just a bit more sympathetic to some (but not all) others. 

A few related posts:

July 11, 2018 in Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

"Intellectual Disability, The Death Penalty, and Jurors"

The title of this post is the title of this new paper on SSRN authored by Emily Shaw, Nicholas Scurich and David Faigman. Here is its abstract:

In Atkins v. Virginia (2002), the United States Supreme Court held that intellectually disabled defendants cannot be sentenced to death; but since then, the Court has continued to grapple with how intellectual disability should be legally defined. Typically, however, it is jurors who determine whether a defendant is intellectually disabled and therefore categorically ineligible for the death penalty. Very little is known empirically about how jurors reason about and make these decisions.

This Article presents the results of a novel experiment in which venire jurors participated in an intellectual disability hearing and a capital sentencing hearing. The diagnosis of a court-appointed expert was experimentally manipulated (defendant is or is not intellectually disabled), as was the provision of information about the crime (present or absent). Jurors were considerably more likely to find the defendant not disabled when the expert opined that the defendant was not disabled.  They were also more likely to find the defendant not disabled when they learned about the details of the crime. Similarly, jurors were more likely to sentence the defendant to death after learning about the details of the crime, which increased perceptions of both the defendant’s blameworthiness and his mental ability.  These findings highlight the reality that jurors’ assessments of intellectual disability are influenced by crime information, contrary to pronouncements made by the United States Supreme Court, and they support the use of bifurcated disability proceedings, as some states have recently adopted.

July 11, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (8)

July 10, 2018

Drug maker sues Nevada seeking to prevent state from using its drug in state's first execution in a dozen years

As reported in this local article, the "maker of a sedative set for inclusion in a Nevada execution on Wednesday — the state’s first in 12 years — is suing to stop it from being used to kill Scott Dozier." Here is more:

American pharmaceutical company Alvogen filed a lawsuit Tuesday in Clark County District Court, saying the Nevada Department of Corrections purchased the drug on false pretenses even though they knew Alvogen objected to its use for executions. The company is asking a judge for a temporary restraining order, for the drug midazolam to be impounded and for it to be barred from any use in capital punishment.

“Defendants intentionally defrauded Alvogen’s distributor by, on information and belief, concealing the April 2018 letter from the distributor and/or the fact that Defendants intended to use the Alvogen Midazolam Product for purposes of an execution,” the lawsuit said. “Defendants omitted relevant information and implicitly made the false representation that they had legitimate therapeutic rationale to purchase the Alvogen Midazolam Product.”

A spokeswoman for the Nevada Department of Corrections didn’t immediately respond to a request for comment on Tuesday, and it’s unclear whether the suit — filed a little more than 24 hours before the execution — will prompt a delay.

Alvogen says on its website that it tries to prevent its product midazolam from use in executions. But the Nevada Department of Corrections announced last Tuesday that it was adding midazolam to its three-drug lethal injection combination after another drug expired, and on Friday it distributed photos of the packaging with Alvogen labels — a response to a request from the American Civil Liberties Union of Nevada for more information about the drugs’ origins.

The pharmaceutical company said it learned its product would be used when it started to receive press inquiries on July 7. “Alvogen does not market, promote or condone the use of any of its approved prescription drug products, including midazolam, for use in state sponsored executions,” spokesperson Halldór Kristmannsson said in a statement on Monday. “To avoid any improper, off label use of our products, Alvogen does not accept direct orders from prison systems or departments of correction. Alvogen works with our distributors and wholesalers to restrict any resale, either directly or indirectly, of our midazolam product to any prison system or department of correction.”

Alvogen’s suit said the state has refused to return the products, and added that the prison agency “was aware of and actively fought disclosure of certain execution-related information because such information had been used to persuade manufacturers to cease selling their products for executions.” NDOC’s actions “have caused, and will continue to cause unless enjoined, substantial and irreparable injury to Alvogen, its reputation, and its goodwill,” the lawsuit said.

The 80-page complaint can be found at this link.

Prior related posts:

July 10, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (6)

"The Trial Penalty: The Sixth Amendment Right To Trial on the Verge of Extinction and How To Save It"

The title of this post is the title of this extraordinary big new report released today by the National Association of Criminal Defense Lawyers. Here is an overview of the 84-page report from the NACDL's website:

The ‘trial penalty’ refers to the substantial difference between the sentence offered in a plea offer prior to trial versus the sentence a defendant receives after trial. This penalty is now so severe and pervasive that it has virtually eliminated the constitutional right to a trial.  To avoid the penalty, accused persons must surrender many other fundamental rights which are essential to a fair justice system

This report is the product of more than two years of careful research and deliberation. In it, NACDL examines sentencing and other data underlying the fact that, after a 50 year decline, fewer than 3% of federal criminal cases result in a trial. With more than 97% of criminal cases being resolved by plea in a constitutional system predicated upon the Sixth Amendment right to a trial, the fact of imbalance and injustice in the system is self-evident.  The report identifies and exposes the underlying causes of the decline of the federal criminal trial and puts forth meaningful, achievable principles and recommendations to address this crisis. With its release, NACDL intends to launch a sustained effort to rein in the abuse of the trial penalty throughout federal and state criminal justice systems.  The Trial Penalty report, and the principles and recommendations it puts forward, seeks to save the right to a trial from extinction.

Former US District Judge John Gleeson authored a thoughtful Foreword to the report, and here are excerpts that also provide a partial account of what follows:

This report is a major contribution to the discussion of one of the most important issues in criminal justice today: the vanishing trial.  Once the centerpiece of our criminal justice ecosystem, the trial is now spotted so infrequently that if we don’t do something to bring it back, we will need to rethink many other features of our system that contribute to fair and just results only when trials occur in meaningful numbers.

The first task in solving a problem is identifying its causes, and this report nails that step.  Mandatory minimum sentencing provisions have played an important role in reducing our trial rate from more than 20% thirty years ago to 3% today.  Instead of using those blunt instruments for their intended purpose — to impose harsher punishments on a select group of the most culpable defendants — the Department of Justice got in the habit long ago of using them broadly to strong-arm guilty pleas, and to punish those who have the temerity to exercise their right to trial.  The Sentencing Guidelines also play an important role, providing excessively harsh sentencing ranges that frame plea discussions when mandatory sentences do not.  Finally, the report correctly finds that federal sentencing judges are complicit as well.  In too many cases, excessive trial penalties are the result of judges having internalized a cultural norm that when defendants “roll the dice” by “demanding” a trial, they either win big or lose big.  The same judges who will go along with a plea bargain that compromises a severe Guidelines range are too reticent to stray very far from the sentencing range after trial.

The report’s principles and recommendations will stimulate some much-needed discussion.  Today’s excessive trial penalties, it concludes, undermine the integrity of our criminal justice system.  Putting the government to its proof is a constitutional right, enshrined in the Sixth Amendment; no one should be required to gamble with years and often decades of their liberty to exercise it.  The report properly raises the “innocence problem,” that is, the fact that prosecutors have become so empowered to enlarge the delta between the sentencing outcome if the defendant pleads guilty and the outcome if he goes to trial and loses that even innocent defendants now plead guilty.  But there’s an even larger hypocrisy problem.  Our Constitution claims to protect the guilty as well, affording them a presumption of innocence and protecting them from punishment unless the government can prove them guilty beyond a reasonable doubt.  A system characterized by extravagant trial penalties produces guilty pleas in cases where the government cannot satisfy that burden, hollowing out those protections and producing effects no less pernicious than innocents pleading guilty.

The report’s recommendations range from the sweeping (ban those mandatory minimums) to the technical (eliminate the motion requirement for the third “acceptance” point), and include suggested modifications to the “relevant conduct” principle at the heart of the Guidelines, pre-plea disclosure requirements, “second looks” at lengthy sentences, and judicial oversight of plea discussions.  A particularly attractive recommendation would require judges sentencing a defendant who went to trial to pay greater attention to the sentences imposed on co-defendants who pled guilty; few things place today’s excessive trial penalty in sharper relief.

There is no such thing as a perfect criminal justice system. But a healthy one is constantly introspective, never complacent, always searching for injustices within and determined to address them.  The sentencing reform movement a generation ago disempowered judges and empowered prosecutors.  Federal prosecutors have used that power to make the trial penalty too severe, and the dramatic diminution in the federal trial rate is the result.  Our system is too opaque and too severe, and everyone in it — judges, prosecutors, and defense attorneys — is losing the edge that trials once gave them.  Most important of all, a system without a critical mass of trials cannot deliver on our constitutional promises. Here’s hoping that this report will help us correct this problem before it is too late.

July 10, 2018 in Examples of "over-punishment", Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Eager for a "51 Imperfect Solutions" approach to a new wave of constitutional proportionality litigation (with broadside Harmelin attacks, too)

9780190866044Not long after Justice Anthony Kennedy announced his retirement, I authored a post hoping to germinate an idea with criminal justice reformers and litigants: "With Justice Kennedy retiring, overturning Harmelin should become a focal point for criminal justice reformers."  I am not especially optimistic that Judge Brett Kavanaugh, who has now been tapped as Justice Kennedy's replacement, will be chomping at the bit to reverse his old boss's troublesome Eighth Amendment work in Harmelin.  But I remain optimistic that a new generation of judges (including Chief Justice Roberts and Justice Gorsuch) may be significantly more open these days to "refreshing" an Eighth Amendment jurisprudence in order to put at least some limits on some extreme prison terms for some adult offenders.

With these thoughts swimming in my mental soup, an important new ingredient came to mind as a result of recent opportunities to talk with Sixth Circuit Judge Jeffrey Sutton about his terrific new Oxford University Press book titled "51 Imperfect Solutions: States and the Making of American Constitutional Law." Here is how the book is described by Oxford:

When we think of constitutional law, we invariably think of the United States Supreme Court and the federal court system.  Yet much of our constitutional law is not made at the federal level.  In 51 Imperfect Solutions, U.S. Court of Appeals Judge Jeffrey S. Sutton argues that American Constitutional Law should account for the role of the state courts and state constitutions, together with the federal courts and the federal constitution, in protecting individual liberties.

The book tells four stories that arise in four different areas of constitutional law: equal protection; criminal procedure; privacy; and free speech and free exercise of religion.  Traditional accounts of these bedrock debates about the relationship of the individual to the state focus on decisions of the United States Supreme Court.  But these explanations tell just part of the story.  The book corrects this omission by looking at each issue — and some others as well — through the lens of many constitutions, not one constitution; of many courts, not one court; and of all American judges, not federal or state judges.  Taken together, the stories reveal a remarkably complex, nuanced, ever-changing federalist system, one that ought to make lawyers and litigants pause before reflexively assuming that the United States Supreme Court alone has all of the answers to the most vexing constitutional questions.

If there is a central conviction of the book, it's that an underappreciation of state constitutional law has hurt state and federal law and has undermined the appropriate balance between state and federal courts in protecting individual liberty.  In trying to correct this imbalance, the book also offers several ideas for reform.

I recommend Judge Sutton's book to all serious legal thinkers (and not-so- serious ones, too), and I mentioned to Judge Sutton that I viewed proportionality litigation around the Eighth Amendment and its state analogues to be another area full of dynamic (though often disconcerting) stories about the role of the state courts and state constitutions in a jurisprudential dialogue with federal courts.  Indeed, as some reader may recall, a little over five years ago I worked with folks at National Association of Criminal Defense Lawyers (NACDL) to develop this 51 state resource in the form of a "collection of individual downloadable documents that summarize for each U.S. state the key doctrines and leading court rulings setting forth constitutional and statutory limits on lengthy imprisonment terms and other extreme (non-capital) sentences."

As states continue to work through the implications of Graham and Miller and Montgomery, I sense and surmise there is plenty of interesting constitutional litigation over the Eighth Amendment still on-going in state courts, and Judge Sutton's work has me wondering how much of that litigation also involves state constitutional proportionality claims pressed in addition to federal claims.  (A key theme in Judge Sutton's book is that lawyers always should, when available, be pressing state constitution claims on behalf of their client as well as federal claims.)  I know I am overdue on a pledge to be updating these NACDL state-by-state resources, and I would be especially eager to hear from any and all state defense lawyers about whether there has been considerable new proportionality jurisprudence in their jurisdictions in recent years.

As thew title of this post suggest, I think Judge Sutton's book can and should serve as a suggestion to all state criminal defense lawyers to keep pressing state constitutional claims.  Doing so could not only lead to important state-level rulings, but also provide still further ideas and energy to perhaps help the US Supreme Court see a reason to overrule or at least recast its ugly work in Harmelin.

July 10, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

President Donald Trump pardons Oregon ranchers convicted of arson, and subject to mandatory minimum terms, who prompted protests over federal lands

As reported in this article from The Hill, headlined  "Trump pardons Oregon ranchers at center of 40-day standoff," Prez Trump has used his pardon pen yet again for another set of high-profile and politically notable defendants.  Here are the details:

President Trump on Tuesday pardoned a pair of Oregon ranchers whose arson conviction became a focus for opponents of federal government land ownership. Dwight Hammond, 76, and his son Steven Hammond, 49, were convicted in 2012 and sent to prison on arson charges. They had set a series of fires on their ranch that spread to federal land.

The Hammonds’ case became the inspiration for the 40-day armed occupation of the Malheur National Wildlife Refuge in 2016. The organizers wanted to protest federal land ownership. The Hammonds distanced themselves from the violent occupiers and didn't endorse the action. One of the occupiers, Robert LaVoy Finicum, died, and a handful pleaded guilty to charges related to the occupation. But brothers Ammon and Ryan Bundy, the accused leaders of the occupation, were not convicted.

In a statement Tuesday announcing the pardon, White House press secretary Sarah Huckabee Sanders emphasized uncertainties in the case and the prison terms and fines the Hammonds had already paid. “The evidence at trial regarding the Hammonds’ responsibility for the fire was conflicting, and the jury acquitted them on most of the charges,” the White House said.  “The Hammonds are devoted family men, respected contributors to their local community, and have widespread support from their neighbors, local law enforcement, and farmers and ranchers across the West. Justice is overdue for Dwight and Steven Hammond, both of whom are entirely deserving of these Grants of Executive Clemency.”

Both men are currently in prison on five-year sentences, thanks in part to a 1996 anti-terrorism law that imposed a mandatory minimum sentence on certain crimes on federal land.  The length of their prison terms, in part, fueled outrage at their convictions.

Federal judge Michael Robert Hogan originally gave the Hammonds reduced sentences in 2012, arguing that the mandatory minimums were unjust. But the Obama administration appealed, and federal Judge Ann Aiken in 2015 imposed the full five-year sentences.  “This was unjust,” Sanders said in her statement.  Dwight Hammond has served about three years of his sentence and Steven Hammond has served about four of his, and Trump’s pardon will set them free.

Rep. Greg Walden (R-Ore.), who represents the area that includes the Hammonds’ ranch, cheered Trump’s pardon as a win against federal overreach. “Today is a win for justice, and an acknowledgment of our unique way of life in the high desert, rural West,” he said in a statement. “As ranchers across eastern Oregon frequently tell me, the Hammonds didn’t deserve a five year sentence for using fire as a management tool, something the federal government does all the time.”

I suspect some folks on the left will attack this latest act of clemency as another politicized action for the benefit of the Trump base.  But I still recall this story and 2016 post about the Hammonds case, "Excessive federal sentencing and strict mandatory minimums at center of armed 'militia' occupation in Oregon," which highlights how much the perceived injustice here is linked to mandatory minimums and excessive federal sentencing terms.  Though I remain chary about expecting Prez Trump to become as ambitious in his use of his clemency pen as was Prez Obama at the tail end of his time in office, the federal sentencing severity that sounds this latest pardons makes me just a hint more hopeful that Prez Trump will at least somewhat deliver on all his big clemency talk.

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

July 10, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Out of Prison & Out of Work: Unemployment among formerly incarcerated people"

The title of this post is the title of the latest notable report by the folks at the Prison Policy Initiative.  Here is how the report gets started:

Formerly incarcerated people need stable jobs for the same reasons as everyone else: to support themselves and their loved ones, pursue life goals, and strengthen their communities. But how many formerly incarcerated people are able to find work? Answering this fundamental question has historically been difficult, because the necessary national data weren’t available — that is, until now.

Using a nationally representative dataset, we provide the first ever estimate of unemployment among the 5 million formerly incarcerated people living in the United States.  Our analysis shows that formerly incarcerated people are unemployed at a rate of over 27% — higher than the total U.S. unemployment rate during any historical period, including the Great Depression.

Our estimate of the unemployment rate establishes that formerly incarcerated people want to work, but face structural barriers to securing employment, particularly within the period immediately following release. For those who are Black or Hispanic — especially women — status as “formerly incarcerated” reduces their employment chances even more. This perpetual labor market punishment creates a counterproductive system of release and poverty, hurting everyone involved: employers, the taxpayers, and certainly formerly incarcerated people looking to break the cycle.

Fortunately, as the recommendations presented in this report illustrate, there are policy solutions available that would create safer and more equitable communities by addressing unemployment among formerly incarcerated people.

July 10, 2018 in Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

July 9, 2018

DC Circuit Judge Brett Kavanaugh nominated by Prez Trump to replace Justice Kennedy

The smart money, as reported here, has been on President Trump nominating DC Circuit Judge Brett Kavanaugh to replace retiring Justice Anthony Kennedy.  And, as reported here, that is who Prez Trump picked tonight.  This meaty SCOTUSblog profile of Judge Kavanaugh includes this criminal justice section:

In criminal cases outside the detainee context, Kavanaugh has tended to rule against defendants, although in doing so, he has largely agreed with his colleagues. In 2008, United States v. Askew, however, Kavanaugh dissented from an en banc ruling that found a Fourth Amendment violation when police officers unzipped a defendant’s jacket without his permission and without probable cause or a warrant.  And Kavanaugh has supported police officers’ claims of qualified immunity from civil-rights lawsuits.  For example, in Wesby v. District of Columbia, which was reversed this term by the Supreme Court, Kavanaugh dissented from denial of rehearing en banc, stating that because “[t]he officers were not “plainly incompetent” and did not “knowingly violate” clearly established law when they made these arrests,” they were entitled to qualified immunity.  But, dissenting from a 2012 en banc opinion upholding the application of a mandatory-minimum sentence in United States v. Burwell, Kavanaugh would have ruled for the defendant.  In his words, “The majority opinion holds that a person who committed a robbery while carrying an automatic gun – but who genuinely thought the gun was semi-automatic – is still subject to the 30-year mandatory minimum sentence. The majority opinion thus gives an extra 20 years of mandatory imprisonment to a criminal defendant based on a fact the defendant did not know. In my view, that extraordinary result contravenes the traditional presumption of mens rea long applied by the Supreme Court.”

I will likely blog about Burwell and about other significant sentencing rulings in the coming weeks, and I will also try to flag other commentaries about Judge Kavanaugh's approach to criminal justice issues.

July 9, 2018 in Who Sentences | Permalink | Comments (2)

Criminally exciting start to what will be first SCOTUS Term without Justice Kennedy in a looooooong time

The SCOTUS excitement today is thick, with Prez Trump promising to name his choice for replacing retiring Justice Anthony Kennedy at 9pm EDT tonight.  But hard-core SCOTUS geeks will also be excited to see the Court already making plans for the new Term via today's release of the argument calendar for the Court's October sitting.  More than a few notable criminal cases are on tap for the first two weeks of October (links descriptions from SCOTUSblog):

Scheduled for argument on Tuesday October 2:

Gundy v. United States: Whether the federal Sex Offender Registration and Notification Act’s delegation of authority to the attorney general to issue regulations under 42 U.S.C. § 16913 violates the nondelegation doctrine.

Madison v. Alabama: (1) Whether, consistent with the Eighth Amendment, and the Supreme Court’s decisions in Ford v. Wainwright and Panetti v. Quarterman, a state may execute a prisoner whose mental disability leaves him with no memory of his commission of the capital offense; and (2) whether evolving standards of decency and the Eighth Amendment’s prohibition of cruel and unusual punishment bar the execution of a prisoner whose competency has been compromised by vascular dementia and multiple strokes causing severe cognitive dysfunction and a degenerative medical condition that prevents him from remembering the crime for which he was convicted or understanding the circumstances of his scheduled execution.

Scheduled for argument on Tuesday October 9:

Stokeling v. United States: Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

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

Besides being excited by this part of the docket for the first few weeks of the new SCOTUS  Term, I am intrigued by the reality that, for the first time in a very long time, advocates and court-watchers will no longer be trying to figure out how Justice Kennedy is going to vote on a particular issue.  Justice Kennedy has served on the Court for 30+ years, meaning that the last SCOTUS Term without his involvement was way back when Ronald Reagan was Prez, when the Soviet Union still existed, when the federal sentencing guidelines were still not quite operational, when Back to the Future II was still in development, and when Adele and Kevin Durant and Rory McIlroy and Cam Newton and Rihanna and Taylor Swift all had not yet even been born!

Of course, not having Justice Kennedy to figure out does not mean counting SCOTUS votes will necessarily get easier in criminal cases or others.  As I have stressed in prior posts, the Chief Justice and new Justice Gorsuch have been a bit unpredictable on the criminal side of the docket, and I think there could be similarly unpredictability from anyone of the short-listers that Prez Trump has been considering.  Indeed, as we await a name from Prez Trump, I would be eager to hear from readers if they think one or another of the short-listers will be particularly good (or particularly bad) on criminal cases.

I am about to head off-line for the afternoon, but I expect to blog some late tonight about whp Prez Trump taps and his or her record on criminal justice issues.  As of 3:15pm EDT, I am still expecting Judge Kavanaugh to be the pick.  But I suppose I will not be too surprised if Prez Trump surprises us tonight.

Prior posts on Justice Kennedy's retirement and the possible impact of his replacement:

July 9, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

Lots more great new Quick Facts publications from US Sentencing Commission

In this post a few days ago, I praised the US Sentencing Commission for continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications (which are designed to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format").  In my prior post, I gave special attention to the new Quick Facts on "Women in the Federal Offender Population," but now I see there are new Quick Facts on just about every major federal sentencing topic based on the USSC's 2017 fiscal year data.  Here are just a few of these publications I have been checking out:

There are so many big and small stories to notice here, and I find especially interesting the sentence-length and trend data appearing in this document about federal drug sentencing. It shows, inter alia, that despite all the talk about the opioid crisis and enhanced prosecution efforts, in Fiscal Year 2017 there were far more sentencings for methamphetamine trafficking than any other drug and these meth offenders got on average a sentence nearly two years longer than the average heroin dealer sentenced in federal court. Also, of all drug dealers sentenced in federal court in Fiscal Year 2017, roughly three times as many had their guideline range reduced as a minor or minimal participant than had their guideline range increased for having a leadership or supervisory role in a drug offense.

July 9, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (0)

Top DC court holds that threat of deportation, combined with jail time, sufficient to trigger Sixth Amendment right to jury trial

With the excitement of the ending of the SCOTUS Term and a new opening on the Court, I failed to blog about a fascinating opinion handed down District Of Columbia Court of Appeals late last month. The start of the majority opinion in Jean-Baptiste Bado v. US, No. 12-Cm-1509 (DC Ct.App. June 21, 2018) (available here), sets out the essentials effectively:

Jean-Baptiste Bado appeals his conviction for misdemeanor sexual abuse of a minor, after a bench trial, on the ground that he was denied the right to a jury trial guaranteed by the Sixth Amendment.  The court, sitting en banc, is asked to decide whether the Sixth Amendment guarantees a right to a jury trial to an accused who faces the penalty of removal/deportation as a result of a criminal conviction for an offense that is punishable by incarceration for up to 180 days.  By itself, that period of incarceration does not puncture the six-month line past which an offense is deemed ― "serious" and jury-demandable.  We hold that the penalty of deportation, when viewed together with a maximum period of incarceration that does not exceed six months, overcomes the presumption that the offense is petty and triggers the Sixth Amendment right to a trial by jury. T he conviction is reversed and the case remanded for a jury trial. 

In addition to an extended majority opinion, Bado also brings two concurring opinions that work through the rationale for and implications of the consequence of removal serving to trigger the Sixth Amendment jury trial right.  And a lead dissent penned by Judge Fisher highlights these implications and concerns:

According to the majority, a citizen charged with misdemeanor sexual abuse of a child does not have a right to a jury trial, but a noncitizen charged with the very same offense does. This is a startling result, neither compelled nor justified by Supreme Court precedent.

July 9, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (1)

Texas proves, yet again, where there is a will to get executions drugs, there seems to be a way

This local article from Texas, headlined "With 7 execution dates on the calendar, Texas just got more lethal injection drugs," spotlights yet again how the folks in Texas are uniquely able to continue with capital justice without much of a hitch. Here are the details and some context:

Amid speculation about its ability to carry out the flurry of new executions on the calendar, state records show the Texas prison system in recent weeks received 15 more doses of the powerful barbiturate used in its Huntsville death chamber.  The additional vials ensure that the state can now carry out all the currently scheduled death dates, but some experts say it raises questions about how officials obtained new doses of pentobarbital at a time when drug-makers have backed away from its use in executions.

"That I'm aware of, there is no legal source for pentobarbital, compounded or otherwise. None," said Maurie Levin, a defense attorney with expertise in lethal injection litigation. "All the companies that previously provided compounded pentobarbital are now subject to end-use controls by the manufacturers and if they are distributing it to a prison for use in executions they are violating that contract."

The state pushed back against that suggestion.  "The Texas Department of Criminal Justice complies with all state and federal laws," said department spokesman Jeremy Desel.

But whatever the provenance of the added supplies, the fact that they exist could impact death-sentenced inmates in other states. Weeks before the new doses showed up on the state's logs, a group of prisoners in Arkansas asked Texas to turn over the name of its lethal injection supplier, in the hope of convincing their own state to switch to the drug the Lone Star State uses.  Midazolam, one of the drugs currently used in Arkansas, has been repeatedly linked to "botched" executions.

Since 2012, Texas has relied on a single drug — compounded sodium pentobarbital — to carry out lethal injections.  The state came close to exhausting its supplies with executions still on the calendar in spring 2015. But in the end, TDCJ got more without needing to push back any death dates, prison officials said previously.

Then in January of this year, the state's stash of drugs was set to expire days before a scheduled execution. The state replenished its supply in time.  But it wasn't immediately clear whether they'd obtained new doses or established a new expiration date for the ones they already had, a possibility that's been raised repeatedly in lawsuits seeking to challenge the state's lethal injection procedures.

Again by May, Texas seemed poised to run out of drugs with three executions scheduled beyond the expiration date of the drugs.  Then on June 18, records show the addition of 15 five-gram vials.

In recent years, drug-makers have put up roadblocks to states seeking execution drugs, forcing states to switch protocols in some places.  "Every major pharmaceutical manufacturer in the U.S. has policies against the distribution of its medicines for unapproved medical purposes, and killing prisoners has never been an approved medical purpose," said Robert Dunham, executive director of the Death Penalty Information Center.  Many drug-makers, he said, also specifically prohibit the sale of their drugs for use in executions.

"If Texas is getting these drugs legally that's important to know for death penalty cases across the country," Dunham said.  "If they're getting them illegally or by making misrepresentations to pharmaceutical distributors that's also important to know because states should not be violating the law or breaching contracts in the name of law enforcement."

It's not clear exactly where the state is getting its drugs, and state secrecy laws keep the department from revealing its source.

July 9, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (0)

July 8, 2018

Notable federal capital defendant claims his killing age (20) should make him ineligible for death penalty

The name Donald Fell is likely familiar to capital punishment followers: Fell was convicted and sentenced to death in federal court for the November 2000 abduction and slaying of Teresca King,but his initial conviction and sentence were thrown out after revelations of juror misconduct.  Prior to his retrial, his attorney's have brought a series of challenges to the federal death penalty.   This local article, headlined "Fell seeks to avoid death penalty based on age," reports on their latest filings:

Lawyers representing Donald Fell, who was charged in the 2000 homicide of a North Clarendon woman, are asking a federal judge to rule out the death penalty because Fell was 20 years old at the time of the alleged murder. A second trial is pending for Fell, 38, for the carjacking and kidnapping of 53-year-old Terry King.

Fell is accused of kidnapping King from the Rutland Shopping Plaza. Police said Fell and his friend, Robert Lee, took King to New York where she was bludgeoned to death. Fell was convicted of the crimes with which he’s now charged in 2005 and he was sentenced to the death penalty in 2006. However, Fell’s attorneys found evidence of juror misconduct and Fell’s conviction was overturned in 2014....

The motion by Fell’s attorneys, filed on Tuesday, referred to a 2005 U.S. Supreme Court decision from 2005 that found capital punishment is unconstitutional if the person convicted committed the crime before he or she was 18.  The motion, filed by San Francisco attorney Michael Burt, a member of Fell’s defense team, said the question of whether Fell was too young at the time he allegedly killed King had not been heard.

“Mr. Fell has had no opportunity to show that Roper‘s age-18 cutoff does not account for the current medical and scientific consensus that brain development is not completed by age 18, and that Mr. Fell’s particular development at age 20 is insufficient to justify capital punishment.  Simply put, his evidence will show that at the time of the offenses, Mr. Fell did not function as an adult with sufficient moral culpability for capital punishment,” the motion said.

Dr. James Garbarino also filed a brief discussing his findings working with young people dealing with severe violence.  He said doctors who had previously examined Fell found psychological problems but the science of brain development was not advanced enough at the time to recognize Fell’s problem was “developmental brain immaturity” from developmental delays.  “In the case of Donald Fell, his social history indicates he is just such an individual — growing up with much adversity, including psychological adversity such as experiences of parental rejection, and physical maltreatment, including physical traumas which may have resulted in insults to his brain,” Garbarino wrote....

The second half of the motion argued that society opposed the execution of young criminals. “Executing individuals barely old enough to vote or drink, unable to rent a car, unable to serve in Congress, and still in the throes of cognitive development — based upon now-disregarded views of culpability — undermines the Supreme Court’s commitment to dignity, and the possibility of rehabilitation and redemption,” the motion said.

Fell, through his attorneys, requested a hearing on the issue, followed by an order precluding the government from seeking the death penalty. Prosecutors have not yet responded to the 550-plus page motion.  Many of the exhibits in the motion were papers on the adolescent brain or court rulings on defendants who committed crimes while young, although only Kentucky was cited as banning the death penalty for someone younger than 21 rather than someone younger than 18.

Another motion, more than 1,100 pages long, was filed Tuesday seeking to stop prosecutors from having a mental health professional testify during the sentencing if Fell is convicted.

Prior related posts:

July 8, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (5)

"No more pits of despair. Offenders are still humans."

The title of this post is the headline of this notable Washington Post commentary authored by Michael Gerson. I recommend the whole piece, and here are excerpts:

An administration not known for policy creativity is unlikely to have useful internal policy debates. But in the Trump administration, prison reform is a welcome exception.

This is largely because of the efforts of President Trump’s son-in-law and senior adviser Jared Kushner, who, in common with millions of poor and minority children in America, has had the searing experience of visiting a father in prison. Kushner has displayed considerable passion in recruiting conservatives to the cause of prison reform. He has been opposed by Attorney General Jeff Sessions, who seems stuck in a get-tough-on-crime time warp.

In the context of this disagreement — reflected in the broader conservative movement — the House has passed a worthwhile but watered-down bill called the First Step Act.  This legislation would make changes on the exit side of incarceration — increasing funding for education and job-training programs and allowing inmates to earn credits for early release.  As a result of opposition from Sessions and others, the bill does not focus on the entrance side of incarceration — sentencing reform that would encourage alternatives to imprisonment for less dangerous offenders....

Given that the main deterrent to crime is not the severity of punishment but its certainty, prison and sentencing reforms are designed to provide a broader range of penalties and treatment options to courts, along with greater discretion in employing them. This means that violent criminals get treated differently from nonviolent criminals, who get treated differently from addicts, who get treated differently from the mentally disabled, who get treated differently from parole violators — instead of sweeping them all into (expensive) prison beds.

States have done more than apply a theory. They have demonstrated something practical, hopeful and remarkable. “This renaissance has been led in large part by deep-red Texas,” Trautman and Rizer write, “which, by instituting a series of ‘smart-on-crime’ initiatives in the last decade, accomplished a feat previously believed to be impossible: the simultaneous reduction of its crime, recidivism and incarceration rates.” While the crime rate index fell by 20 percent nationally from 2007 to 2014, it fell by 26 percent in Texas. The state, meanwhile, closed eight prisons....

One of the reasons this good idea should succeed in Washington is to demonstrate that any good idea can succeed in Washington. Two other scholars, Steven Teles and David Dagan, have called prison and sentencing reform an example of “trans-partisanship,” which they define as “agreement on policy goals driven by divergent, deeply held ideological beliefs.” Liberals look at mass incarceration and see structural racism. Libertarians see the denial of civil liberties. Fiscal conservatives see wasted resources. Religious activists see inhumane conditions and damaged lives.

All these convictions converge at one point: We should treat offenders as humans, with different stories and different needs, instead of casting them all into the same pit of despair. 

July 8, 2018 in Criminal justice in the Trump Administration, Prisons and prisoners, Who Sentences | Permalink | Comments (3)