With Justice Anthony Kennedy’s retirement from the court this summer, the Supreme Court will lose a heterodox jurist whose willingness to cross ideological divides made him the deciding factor in many legal battles. In cases involving the Eighth Amendment’s prohibition against cruel and unusual punishment, his judgment often meant the difference between life and death for hundreds of death-row prisoners.
“In a very real sense, the Eighth Amendment meant whatever Justice Kennedy decided that it meant,” Robert Dunham, the executive director of the Death Penalty Information Center, told me. “He was often the fifth vote in denying stays of execution and in favoring the state on questions of lethal injection, but he was also often a fifth vote for determining that a particular death-penalty practice was unconstitutional.”
The high court will likely continue to intervene in death-penalty cases that stray too far from the legal mainstream. But without Kennedy, it will no longer be the venue for a systemic attack on capital punishment as it had been in recent years. “It seems likely that there will be a firm, five-person majority on the court in Kennedy’s wake with absolutely no interest in revisiting the status quo on the constitutionality of capital punishment,” Carol Steiker, a Harvard University law professor who specializes in the death penalty, told me....
July 21, 2018
Another attack on the FIRST STEP Act failing to acknowledge modern political realities
DeAnna Hoskins, the president and CEO of JustLeadershipUSA, has this lengthy Hill commentary assailing the FIRST STEP Act as "a step backward [that] invites a scary future." I find the claims in this commentary a bit scary, and here are excerpts with a few comments to follow:
By limiting “prison reform” to a combination of half-hearted credit time — which would leave people on home confinement or in halfway houses, rather than shorten sentences — and a reliance on risk assessment instruments that are steeped in racial bias, the FIRST STEP Act could hit the brakes on a nationwide movement to reform and redefine the justice system.
One of the most deceptive parts of this bill is that it creates the impression that people can earn time off of their sentence via new “credit time.” This is simply not true. This bill will keep people who earn credit time under the Bureau of Prisons’ control by replacing one form of incarceration with another. The FIRST STEP Act does not offer a real path toward release and redemption. Instead, it has the potential to increase the reach of the federal prison system via electronic monitoring and expanded home confinement, which is consistent with this administration’s efforts to increase the size of the federal prison population.
For those released from prison on credit time, an electronic shackle awaits, branding people with a tool that tracks their every movement, expands the carceral state into our neighborhoods and significantly lowers the threshold for reincarceration. As with any for-profit industry, once privatization enters the market an agreement is made for the company to be guaranteed a certain level of profit margin. In order to profit from the FIRST STEP Act, these companies will be guaranteed a certain number of individuals to remain on electronic monitoring or home confinement, creating a bodies-for-sale system.
What’s more, this bill ensures that many people are excluded from eligibility to earn credit time. The FIRST STEP Act calls for the creation and implementation of a risk assessment instrument to determine who is worthy. Such assessments have been shown to perpetuate or exacerbate racial biases and institutionalize structural racism by relying on data such as “zip code” and “age at first arrest” — both signal over-policing of black people and communities of color, rather than risk of actual behavior....
There are some good aspects of this bill, including the prohibition of the abhorrent practice of shackling pregnant women in prison and the retroactive application of an increase in good-time credit from 47 to 54 days per year. Even with these positive provisions, the rest of this bill widens the net of systemic harm. The fact that this bill could move us a few inches forward is not nearly enough to mitigate the reality that the FIRST STEP Act is only a first step toward a devastating future.
We do not have a binary choice between the status quo and the FIRST STEP Act. To the contrary, the very real possibility of overhauling and wholly transforming our criminal justice system exists, and needs to be pursued with unmitigated and tireless vigor of the movements we are seeing in cities, counties and states across the country.
The need and demand for reform are real. The FIRST STEP Act is not only a step backward; it invites a scary future. We need good proposals that address the structural racism baked into our justice system. We can pursue good proposals at all levels of government — proposals that are human-centered, values-driven, and that truly have an impact on decarcerating and decriminalizing communities across the country.
Though I think it reasonable to express concern about how elements of the FIRST STEP Act might be implemented, stating that this bill would bring a "devastating future" is disturbing hyperbole. Moreover, as a number of former federal prisoners have stated, it is deeply misguided to suggest electronic monitoring and home confinement is functionally equivalent to continued confinement in federal prison. Most fundamentally, the claim that there is "the very real possibility of overhauling and wholly transforming our criminal justice system" seems entirely disconnected from the reality that there has been prominent advocacy for federal criminal justice reforms for the last half-decade without a single bit of legislation getting through Congress.
Like the author here, I would like to see reform that goes beyond the FIRST STEP Act. But broader reforms have be stalled by leaders in DC who are likely to be in place at least until 2020 if not later. Hoping and waiting for something better leaves current prisoners and their families waiting and waiting and waiting. And if the politics are really behind "overhauling and wholly transforming our criminal justice system" now or later, passage of the FIRST STEP Act seems very unlikely to change those politics. But rather than seeing a politic consensus for "transforming our criminal justice system," I just see a lot of political division among advocates for reform that seems to be making achieving any reform that much harder.
Some of many prior related posts:
- House Judiciary Committee approves FIRST STEP Act by a vote of 25-5 after lots of discussion of amendments
- FIRST STEP Act passes US House of Representatives by vote of 360-59(!), but its fate in Senate remains uncertain
- Interesting new US Sentencing Commission analysis of possible impact of Sentencing Reform and Corrections Act of 2017
- On eve of House Committee consideration, distinct advice from criminal justice reform groups on latest federal prison reform proposal
- Five prominent congressional Democrats write in opposition to federal statutory prison reform without broader sentencing reform
- The latest political back and forth, on both sides of the aisle, as federal prison reform efforts gain momentum
- Prez Trump pledges to sign prison reform that will be "best in the world"
- On eve of planned House vote on FIRST STEP Act, NY Times editorial misguidedly asserts a "partial bill could end up being worse than nothing"
- An (encouraging?) update on the state of federal criminal justice reform in US Senate
- Disconcerting update on Senate's (lack of) progress on federal statutory criminal justice reforms
- Large group of former prisoners urge Senate leaders to move forward with FIRST STEP Act
- Intriguing comments about the politics and persons around FIRST STEP Act and federal criminal justice reform efforts
"Isonomy, Austerity, And The Right To Choose Counsel"
The title of this post is the title of this paper authored by Janet Moore that I just came across. Here is the abstract:
People who can afford to hire criminal defense attorneys have a Sixth Amendment right to choose a lawyer who is qualified, available, and free from conflicts of interest. The same right to choose counsel is routinely denied to people who need government-paid defense lawyers because they cannot afford to hire attorneys. In prior work, I invoked democratic theory to argue that this de jure discrimination blocks constitutional law formation by poor people and should be eliminated.
This Article extends the analysis by explaining how a different theoretical approach — one grounded in libertarian commitments to private enterprise and austerity in public funding — shaped the nation’s first pilot study on counsel choice in a public defense setting. Those commitments sharply limited the measure of counsel choice offered and left the study with insufficient data to support generalizable conclusions. Thus, the study underscores questions about whether an equal right of counsel choice can be meaningful under conditions of austerity and might actually aggravate instead of ameliorate system deficits. The Article concludes that while meaningful counsel choice for poor people may be elusive, the constitutional interests at stake nevertheless warrant elimination of overt class-based discrimination from the vindication of a fundamental right.
July 20, 2018
Following execution, Ohio Gov John Kasich closes his capital record with commuted death sentence and reprieve
As reported in this local article, "Ohio Gov. John Kasich spared death row inmate Raymond Tibbetts, who was convicted of killing his wife and landlord in Cincinnati more than two decades ago." Here is more on a (surprising?) decision, which was one of two notable capital changes today:
Kasich — going against the recommendation of the Ohio Parole Board — said that there were "fundamental flaws" in sentencing Tibbetts. Jurors didn't learn about Tibbett's background as a neglected and abused child. Kasich commuted Tibbetts' sentence to life in prison without the possibility of parole. Tibbetts had been set to be executed Oct. 17.
Tibbetts had been sentenced to death for beating his wife, Sue Crawford, to death and fatally stabbing his landlord, Fred Hicks, on the same day in 1997 in Over-the-Rhine.
The Ohio Parole Board had given Tibbetts' case a second look after a former juror, Ross Geiger of Loveland, wrote a letter to Kasich, expressing concern that jurors didn't know more about Tibbett's background before sentencing him to death. But the parole board voted 8-1 against clemency.
Kasich disagreed. In a news release, the governor explained that "the defense’s failure to present sufficient mitigating evidence, coupled with an inaccurate description of Tibbetts’s childhood by the prosecution, essentially prevented the jury from making an informed decision about whether Tibbetts deserved the death penalty."
This press release from Gov Kasich's office also reports that "Gov. John R. Kasich granted a reprieve to delay the execution of Cleveland Jackson" with this accounting for this decision:
Cleveland Jackson was convicted for the 2002 murder of 17-year-old Leneshia Williams and three-year-old Jayla Grant in Lima. The reprieve will delay his execution until May 29, 2019 to allow his newly appointed legal counsel sufficient time to review the case and properly prepare for his clemency hearing before the Parole Board. Jackson’s previous court-appointed counsel withdrew their representation just four months prior to his initially scheduled execution after admitting that they failed to do any work to prepare his clemency application over the course of the previous four years.
With this commutation and reprieve, which follow an execution earlier this week which was Ohio's 15th execution during Gov Kasich's two terms in office, I believe Gov Kasich has closed out his capital record because there a now no more executions scheduled during his remaining time in office. (Interestingly, Ohio Gov Robert Taft presided over 24 executions from 1998 to 2006, and Ohio Gov Ted Strickland presided over 17 execution from 2007 to 2010.)
New ACS Issue Brief on "Litigating Federal Habeas Corpus Cases"
Eve Brensike Primus has authored this lengthy new Issue Brief for the American Constitution Society under the title "Litigating Federal Habeas Corpus Cases: One Equitable Gateway at a Time." Here is how its introduction starts and closes:
The Supreme Court has described the writ of habeas corpus as “a bulwark against convictions that violate fundamental fairness” and as “the judicial method of lifting undue restraints upon personal liberty.” Unfortunately, obtaining federal habeas corpus relief has become close to impossible for many prisoners. The vast majority of habeas petitions are post-conviction petitions filed by state prisoners. Congress and the Supreme Court have erected a complicated maze of procedural obstacles that state prisoners must navigate, often without the assistance of counsel, to have their constitutional claims considered in federal court. One wrong procedural step means the prisoner’s claims are thrown out of federal court altogether. In fact, federal judges now dismiss a majority of state prisoners’ habeas claims on procedural grounds....
In this Issue Brief, I argue that habeas petitioners should highlight problems they had obtaining a full and fair review of their claims in state court as well as innocence concerns in an effort to push federal courts to expand the equitable exceptions that already permeate habeas doctrine. I begin by providing a brief overview of the substantive and procedural thicket of federal habeas review, including a description of the many roadblocks that state prisoners encounter when attempting to obtain relief. I then explore the doctrine’s equitable exceptions and explain how concerns about a lack of access to adequate state process and actual innocence often motivate federal courts to look past obstacles to federal habeas review. Finally, I explore how litigants could use the animating principles behind these equitable exceptions to broaden procedural bypasses and inform the standard of review for merits determinations in federal court. I argue that state prisoners often fail to highlight process failures in ways that could broaden the scope and impact of federal habeas review. Sweeping reform of federal habeas review might not be feasible, but it may be possible to effectuate some change, one equitable gateway at a time.
July 19, 2018
"Assessing the Real Risk of Sexually Violent Predators: Doctor Padilla’s Dangerous Data"
The title of this post is the title of this new paper authored by Tamara Rice Lave and Franklin Zimring now available via SSRN. Here is its abstract:
This Article uses internal memoranda and emails to describe the efforts of the California Department of Mental Health to suppress a serious and well-designed study that showed just 6.5% of untreated sexually violent predators were arrested for a new sex crime within 4.8 years of release from a locked mental facility.
The Article begins by historically situating sexually violent predator laws and then explains the constitutionally critical role that prospective sexual dangerousness plays in justifying these laws. The Article next explains how the U.S. Supreme Court and the highest state courts have allowed these laws to exist without requiring any proof of actual danger. It then describes the California study and reconciles its findings with those of a well-known Washington study by explaining the preventive effects of increasing age. Finally, the Article explains how these results undermine the justification for indeterminate lifetime commitment of sex offenders
Another look at how Justice Kennedy shaped capital jurisprudence and what his departure entails
I noted here a few weeks ago a short piece on how death penalty jurisprudence is likely to be impacted considerably by a coming SCOTUS transition, and another longer piece in the same vein now comes from Matt Ford at The New Republic. The piece is headlined "America Is Stuck With the Death Penalty for (at Least) a Generation," and here are excerpts (with links from the original):
With Kennedy now gone, it’s virtually certain that the Supreme Court won’t abolish the death penalty for at least a generation. Earlier this month, President Donald Trump nominated Brett Kavanaugh, a reliably conservative judge on the D.C. Circuit Court of Appeals, to fill Kennedy’s seat. While Trump himself is an unusually enthusiastic proponent of the practice, Kavanaugh’s own views on the death penalty are unknown. The D.C. Circuit’s narrow geographic jurisdiction means that it almost never hears death-penalty cases compared to the other federal appellate circuits.
As a result, there is no clear record for how Kavanaugh approaches the practice as a judge. Justices Clarence Thomas and Samuel Alito are resistant to curtailing capital punishment, and Justice Neil Gorsuch has voted alongside them during his first term on the court. If Kavanaugh votes in a similar manner, the court’s posture toward the death penalty would shift decisively away from limiting its scope. “The immediate impact of Kennedy’s retirement in terms of Eighth Amendment law is that it’s now whatever Chief Justice Roberts decides that it is,” Dunham said.
Roberts generally sides with the rest of the court’s conservatives on death-penalty matters. He has also joined the court’s liberals on occasion to rule in favor of defendants in certain egregious cases. In the 2017 case Buck v. Davis, he sided with a death-row prisoner after an expert testified during the sentencing phase that he posed a greater threat of “future dangerousness” because he is black. Though the exchange was a brief part of the overall trial, Roberts said in his majority opinion that it was still too much. “Some toxins are deadly in small doses,” he wrote.
Death-row prisoners will still bring cases to the Supreme Court, but Steiker said that the future of abolition efforts will now turn to the state and local level. “States are really where the story is happening,” she told me. “There are state constitutional challenges that can be brought. Seven state legislatures have voted to abolish the death penalty in the past ten or twelve years.” She also noted that a growing number of district attorneys are declining to seek the death penalty in cases where they otherwise could.
A local focus makes sense given the current geography of capital punishment. Death sentences increasingly come from only a handful of counties scattered across the country. Though state legislatures allow or forbid the death penalty as a matter of law, local prosecutors often decide in practice whether a defendant will face it. Cities like Houston and Philadelphia that once handed down dozens of death sentences have recently seen the election of district attorneys who are more skeptical of it.
For now, the rulings written by Kennedy will continue to mark the outer limits for American executions on a national level—unless the justices of a future generation choose to push them even further. “The law that Justice Kennedy leaves behind offers something of a blueprint for a future Supreme Court if it wanted to continue this project of reassessing the death penalty and its concordance—or not—with evolving standards of decency,” Steiker said.
Prior related post:
Notable GOP Senators talk up mens rea reform while FIRST STEP Act and SRCA languish in their chamber
Senators Chuck Grassley and Orrin Hatch have this notable new commentary in the Washington Examiner under the headline "Mens rea reform and the criminal justice reform constellation." Here are excerpts:
A growing chorus of voices from across the country and political spectrum are calling out for reforms to our nation’s criminal justice system, and rightfully so. Our criminal justice system should be tough but fair. Criminal behavior should be punished, but the punishment should fit the crime. And those we send to prison should be afforded opportunities to participate in programs that prepare them to rejoin society when they complete their sentences.
As Congress works on bills to improve fairness in sentencing and bolster programs to better prepare inmates for life after prison, we should not ignore the root problem of overcriminalization. There are more than 4,500 criminal laws on the books and more regulatory crimes than the Congressional Research Service was able to count. And when many of these crimes are drafted without clear criminal intent requirements, it becomes increasingly easy for unsuspecting Americans to be sent to jail for conduct they had no idea was against the law.
Mens rea reform, in addition to sentencing and prison reform, is an essential part of the criminal justice reform constellation. We can do only so much to improve fairness in our nation’s criminal justice system if we continue to allow individuals to be sent to prison for conduct they did not know was unlawful, even when Congress has not specified that their crimes should be strict liability offenses.
Fairness and justice demand that we clarify our criminal laws. Statutes and regulations that impose criminal penalties should be clearly written so they prevent and punish criminal conduct even as they the safeguard the liberty of the innocent. That’s why it is important that Congress take up and pass the Mens Rea Reform Act of 2018, which we’ve introduced, to improve clarity in existing criminal laws and regulations and encourage greater care when crafting future ones.
Our bill recognizes that the mens rea standard that works for one crime might not be appropriate for another. It improves on past proposals to impose a one-size-fits-all mens rea standard to all laws and regulations that lack such clarity. Instead, it empowers Congress and federal agencies to fill in the gaps with the appropriate level of intent required to constitute a crime. The bill calls on the federal government to identify the criminal statutes and regulations that lack a mens rea requirement. This will allow Congress to clarify the mens rea standard in criminal statutes through the legislative process. The bill then directs federal agencies to put in place a clear mens rea standard for all regulatory crimes through a transparent process that invites public input on what the appropriate mens rea standard should be. Under our bill, agencies have six years to issue new rules to clarify the required level of intent. If the agencies don’t offer this clarification, they won’t be able to enforce the regulation....
We firmly believe that mens rea reform is an important piece of the broader criminal justice reform landscape. Together with the bipartisan Sentencing Reform and Corrections Act, which we both support, the Mens Rea Reform Act will improve fairness and clarity in our criminal justice system.
While I share the Senators affinity for mens rea reform, at this point I am eager to hear any news about any movement in the Senate with respect to the FIRST STEP Act or the Sentencing Reform and Corrections Act. One would hope that the current chair of the Senate Judiciary Committee (Grassley) and a powerful former chair (Hatch) could actually help get some legislation enacted, but the mysteries of government continue to mysterious prevent the passage of legislation that has widespread support in both houses of Congress.
It has now been nearly two months since the FIRST STEP passed the House by a huge margin (details here) and it has now been more than five months since the SRCA passed the Senate Judiciary Committee by a significant margin (details here). Prez Trump has suggested he will sign whatever bill gets delivered to his desk. But as the summer marches on, I am struggling to remain optimistic that the full Senate will get to vote on any of these reform proposals anytime soon. Sigh.
"Why Can’t We Redeem the Sex Offender?"
The title of this post is the title of this revised commentary appearing at The Crime Report. Here are excerpts:
When large nonprofit organizations otherwise committed to making the American justice system less draconian hire people with violent criminal records, they send a strong message that justice-involved people change, and are capable of not only reentry but success.
But these same organizations do not have anyone on the sex offender registry on staff, regardless of qualifications or demonstrated rehabilitation.
This is unsurprising, yet tragic. When most people think of “sex offenders,” they imagine repulsive and heinous crimes against very young children. And in 2005, a Gallup poll suggested that Americans feared terrorists less than sex offenders.
In reality, the phrase “sex offender” describes any person convicted under a statute that requires sex offender registration, which lasts anywhere from 10 years to natural life, depending on the state and the offense. The registry includes everyone from the mentally ill, remorseful flasher to the sexually-motivated killer, as well as the older party in a high school sweetheart relationship to a dangerous child rapist. There are almost one million Americans on sex offender registries, including people convicted for relatively minor sex crimes as children.
And what might sound like a heinous crime based on the name alone, like the production of child pornography, can describe what Edward Marrero faces prosecution for in federal court. Mr. Marrero admitted in court that he took sexual photos of his 17-year-old girlfriend when he was only 20 years old himself. Marrero now faces 15-to-30 years in federal prison for photos of a relationship that would be legal virtually everywhere in the world.
It is important for directly impacted people to have a say in efforts intended to help them. For example, the American Civil Liberties Union (ACLU) has pushed against employment discrimination against those with criminal records, and has more recently has hired highly qualified people who have committed serious crimes in their pasts. But the ACLU appears to not have a single person on the registry as a part of any branch’s staff.
Is a close-in-age relationship between a young adult and a teenager morally worse than murder, kidnapping, or robbery? What about teen sexting? No, and the absolute dearth of otherwise-qualified sex offenders in criminal justice reform careers shows how far we have titled the scales from reality.
Criminal justice reform organizations should be able to ask these questions and answer them realistically, without putting too much credence in the byzantine and cruel state of American sex laws. After all, we know better than anyone that the law is not always what is right. Let us hire sex offenders when we believe in them.
July 18, 2018
Ohio completes its first execution since botched execution of another inmate late last year
As reported in this local article, Ohio managed to get its machinery of death functioning again this morning. Here are the details and context:
Robert Van Hook horrifically murdered a Cincinnati man, but he seemed remorseful as he died by lethal injection on Wednesday at the Southern Ohio Correctional Facility.
Van Hook, 58, was strapped to the gurney in Ohio’s death house and the lines carrying the deadly drugs had been inserted in his arms when he turned his head to three witnesses from the family of his victim, David Self....
Van Hook served a violence-plagued 32 years in prison after a death-penalty conviction for what now could be considered a hate crime — of the utmost violence.
On Feb. 18, 1985, Van Hook met Self in a gay bar in downtown Cincinnati and went home with him. Van Hook’s clemency report says he lured Self into a vulnerable position and strangled him into unconsciousness. “He then took a paring knife from the kitchen and stabbed the victim behind the right ear, aiming the thrust upward toward the brain, accompanied by a blade-twisting movement,” the report said....
During his incarceration Van Hook amassed a disciplinary record of more than two dozen incidents, including stabbing another inmate in the face and chest, threatening to kill corrections officers and damaging property.
Joe D’Ambrosio served 22 years on death row with Van Hook until D’Ambrosio was exonerated and released in 2010. “He had mental problems, I don’t care what anyone says,” said D’Ambrosio who was at the prison Wednesday to protest Van Hook’s execution. “He would go for long periods of time and then he would explode.”
In their unsuccessful bid for clemency, Van Hook’s attorneys cited his difficult childhood. His mother, who had a history of mental illness, abused alcohol and drugs and became enmeshed in repeated, mutually abusive relationships. His father also drank heavily, beat Van Hook and was a virulent homophobe, the lawyers wrote.
Van Hook’s father, a musician, introduced his son to alcohol and drugs when Van hook was 11 or 12, his lawyers said. At 14, Van Hook moved with his father to Florida and eventually ran away. He lived on the streets, sometimes supporting himself by having sex for money with men....
D’Ambrosio said there was no point in killing Van Hook. “It was unneeded, unnecessary, cruel, unusual,” he said. “It’s barbaric.”
But three members of Self’s family, who sat quietly holding hands through the execution, wanted Van Hook to die. They declined comment on Wednesday. But Self’s sister, Janet Self, told the parole board that her brother’s murder reduced him in the public mind to nothing more than a gay man in a bar, when in reality he was an intelligent, witty person. She also noted that Self was abused by his own father and had to face prejudice because he was gay.
Van Hook’s execution was the first in Ohio in 2018. The last attempted execution — of Alva Campbell in November — was called off when corrections workers could not find a suitable vein for intravenous drugs. He died earlier this year of natural causes.
Gary Otte and Ronald Phillips were executed last year. They were the first to be killed in Ohio’s death chamber after a three-year moratorium following the 2014 execution of Dennis McGuire, 53, who gasped, choked, clenched his fists and appeared to struggle against his restraints for about 10 minutes before being pronounced dead.
Van Hook was the 56th man to be executed in Ohio since 1999. Two more executions are scheduled for later this year. A total of 137 people remain under death sentences in Ohio.
"The Vanishing Criminal Jury Trial: From Trial Judges to Sentencing Judges"
The title of this post is the title of this article authored by Robert Conrad, Jr. and Katy Clements published earlier this year that I just came across and that is especially timely in light of the recent NACDL report on the "trial penalty" (discussed here). Here is its abstract:
Federal criminal jury trials are dying. Surely, but not slowly. Within the ten-year span from 2006 to 2016, the absolute number of cases disposed of by jury trial declined by forty-seven percent. During the same ten-year span, the portion of defendants’ cases disposed of by jury trial similarly declined by almost forty percent. Go to the movies, turn on the television, or open a book, and the vanishing trial is not the portrayal of the American criminal justice system you will see. The media depicts a thriving criminal adjudicatory system full of dramatic human interactions, complex fact patterns, and cathartic resolutions rendered at the hand of the twelve-person, hallowed pillar of American democracy: the jury.
This Article debunks that fiction. The criminal jury trial decline has been occurring since the 1980s. Yet the primary factors scholars have attributed as responsible for igniting the trial decline no longer predominate. Prior scholarship has blamed mandatory minimum penalties and mandatory Federal Sentencing Guidelines as the principal agents of the trial decline. This Article examines the vanishing trial phenomenon in the post-mandatory Guidelines era and discovers startling results. Despite the Supreme Court making the Guidelines advisory in United States v. Booker in 2005 and a prosecutorial push during the Obama Administration to circumvent charging mandatory minimum penalties, trial numbers continue to rapidly decline.
By tracing trial statistics in the twenty-first century, this Article identifies new factors, largely unexamined in the vanishing trial literature, that have arguably driven trial numbers to even lower levels. Specifically, the authors contend that Booker, changes in Department of Justice policies, and other extrinsic factors outside the criminal justice system have further marginalized the existence of trials and juries. The authors lament that the sentencing hearing has replaced the trial as the paramount proceeding in most criminal cases and explore the consequences of plea agreements supplanting the public square openness of trials. By doing so, the authors hope to embolden the players in the criminal justice system to not go gentle into a trial-less system, but rather, to rage against the dying of the trial light.
Texas completes eighth execution of 2018 despite complaints about clemency process
This Texas Tribune article, headlined "Texas executes Chris Young, who fought the state parole board in a final appeal," reports on the latest lethal injection and litigation in the Texas capital system. The subheadline summarizes the heart of the story: "The death row inmate claimed that the parole board likely rejected his clemency petition because he was black. The argument highlighted a long-standing criticism of clemency in Texas." Here are excerpts from a lengthy piece:
In his final fight before his execution Tuesday evening, Chris Young targeted Texas’ secretive clemency process.
On Friday, the Texas Board of Pardons and Paroles unanimously rejected Young’s clemency petition — often the final check in the death penalty process before an inmate is sent to the death chamber. Hours later, Young’s lawyers filed suit against the board members, claiming that they likely voted against a recommendation to reduce his sentence or halt his execution because he is black.
The appeal was a long shot, and one he ultimately lost in federal court Tuesday, hours before the state put him to death for the 2004 robbery and murder of Hasmukh Patel at Patel's San Antonio store. At 6:13 p.m., Young, 34, was injected with a fatal dose of compounded pentobarbital and pronounced dead 25 minutes later....
Though unsuccessful, the late filing highlighted a long-established criticism of Texas clemency — the reasoning for the board’s decision is unknown to the public, and individual members usually cast their votes remotely without comment or a hearing. Though members must certify that they do not cast their votes because of the inmate’s race, they also don’t have to give any reason for their decision....
Young was 21 when he entered Patel’s San Antonio store in 2004 and fatally shot Patel during an attempted robbery, according to court records. He was convicted of capital murder and sentenced to death in 2006.
In his recent petition to the parole board asking for a sentence of life instead of death, his lawyers cited his growth in prison — they claim he prevented both an inmate’s assault on a guard and a suicide and that he eased racial tensions on death row — and the fact that Patel’s son, Mitesh, also pleaded for the state to spare his father’s killer.
They tried to draw comparisons between Young and another young man whose life was recently spared by the board and Gov. Greg Abbott — Thomas Whitaker, who was convicted in the planned deaths of his family in 2003, killing his mother and brother and wounding his father in a plot to get inheritance money....
The state responded to Young’s allegations of racial discrimination in court Sunday, claiming Young’s case for clemency was “far weaker” than Whitaker’s. Assistant Attorney General Stephen Hoffman highlighted factors left out of Young’s petition, including an alleged sexual assault just before Patel’s murder, previous misdemeanor convictions and disciplinary reports from death row. The response also notes that, unlike Young, Whitaker wasn’t the triggerman in his relatives’ murders....
Since 1998, a Texas governor has spared the life of someone facing imminent execution only three times, according to data obtained from the parole board. In the same two decades, there have been more than 400 Texas executions....
Abbott’s predecessor, Republican Rick Perry, chose to reduce a death sentence to life in prison for only one inmate (U.S. Supreme Court decisions forced him to reduce other sentences) in his 14-year tenure. He also rejected board recommendations in at least two other cases. The Whitaker clemency was the first and only board recommendation under Abbott so far.
Because of the minuscule success rate of these cases and the secrecy that surrounds the process, attorney groups and several lawmakers have criticized Texas clemency procedures in capital cases for decades. In 1998, U.S. District Judge Sam Sparks called it “extremely poor and certainly minimal.” Sparks railed on how the public is kept from the board’s dealings and said no member fully reads the petitions, stating “a flip of the coin would be more merciful than these votes.”...
But for Young, the attempt to draw parallels between himself and Whitaker seemingly fell flat with the members of the parole board. Instead of being moved off death row to another prison, he was sent to the death chamber, becoming the eighth person executed in Texas this year, and the 13th in the nation.
July 17, 2018
Encouraging lawmakers to take a "face-to-face" approach to criminal justice reform
Connecticut Gov Daniel Malloy has this great commentary in The Hill under the headline "To reimagine the criminal justice system, start with a face-to-face connection." I recommend the piece in full, and here are excerpts:
Recently, the first lady and I convened a group of state officials, judges, prosecutors, victim advocates and other stakeholders to discuss Connecticut’s progress toward improving the state’s criminal justice system. Sounds like a run-of-the-mill convening of policymakers and practitioners until you consider the venue: one of our state’s maximum-security prisons, the Cheshire Correctional Institution.
“Reimagining Justice 2018: Outside In” was the first-ever conference to be held inside such a prison, serving as a rare opportunity for those who shape and carry out Connecticut’s criminal justice policies to step into the confines of a prison and hear directly from those who are residents there.
During my time as governor, I’ve prioritized these types of meaningful interactions with people directly impacted by the correctional system, whether it’s been with people who are incarcerated, the corrections officers that supervise them or victims of crime. Over the course of my 24 visits to date, interactions with victims, correctional officers and inmates have become a central part of my efforts to develop meaningful criminal justice policy changes.
These experiences have informed many policy discussions and have led to extraordinary progress in our state. From 2008 to 2016, Connecticut has seen the complete closure of five prisons along with major portions of four other facilities. More importantly our state has experienced the largest reduction in violent crime of any state in the nation over the past four years. We’ve also seen our prison population reach its lowest level since 1994 due to fewer and fewer arrests and prison admissions and while continuing to see meaningful drops in recidivism rates....
Whether it be attending the reentry program graduation of someone preparing to return to the community after incarceration or meeting with corrections officers to discuss new ways to ensure a healthy working environment for them, these face-to-face engagements can help policymakers gain a deeper appreciation of the unique challenges people encounter when they are closely involved in the correctional system....
It’s critical for all elected leaders and policymakers at every level of government to understand the high value of these types of interactions. That is why I, along with a group of 12 other Republican and Democratic governors across the country, have taken part in the Face to Face initiative, a call to action for all policymakers to personally connect with the people closest to the correctional system.
I urge all policymakers of all levels across the country to join these efforts and commit to following a thoughtful approach to policy that focuses not only on data, but the people behind those numbers. Together, by considering the immeasurable human impact of our policy decisions, we can reimagine the way we approach criminal justice.
"McCleskey V. Kemp: Field Notes from 1977-1991"
The title of this post is the title of this notable paper authored by John Charles Boger available now via SSRN. Here is its abstract:
This Essay is an expanded version of a keynote address to a Symposium hosted by the Northwestern University School of Law. It examines the handiwork of the Supreme Court in the McCleskey v. Kemp (1987) case and the adverse impact of McCleskey on the subsequent judicial consideration of statistical evidence -- even of widespread racial discrimination -- in the capital and criminal justice systems.
As one member of the legal team who brought the McCleskey case, my contribution was to speculate on how and why the Court might have disregarded such meticulously documented and unrebutted patterns of racial disparities in capital sentencing, despite the Justices’ formal condemnation of racial discrimination in principle and their occasional intervention to curb particularly egregious acts of racial injustice. This Essay ends by encouraging social scientists and legal scholars to continue to uncover and oppose patterns of racial discrimination that remain widespread in the administration of criminal justice.
July 16, 2018
Big Massachusetts Supreme Judicial Court upholds "drug free" condition of probation
The Massachusetts Supreme Judicial Court handed down this morning a decision in the closely-watched case of Massachusetts v. Eldred, No. SJC--12279 (Mass. July 16, 2018) (available here). The opinion starts this way:
Following a probation violation hearing, a judge in the District Court found that the defendant, Julie A. Eldred, had tested positive for fentanyl, in violation of a condition of her probation requiring her to abstain from using illegal drugs. The judge ordered that the conditions of her probation be modified to require her to submit to inpatient treatment for drug addiction. The defendant appeals from that finding and disposition. The judge also reported a question drafted by the defendant concerning whether the imposition of a "drug free" condition of probation, such as appeared in the original terms of defendant's probation, is permissible for an individual who is addicted to drugs and whether that person can be subject to probation violation proceedings for subsequently testing positive for illegal drugs.
We conclude that, in appropriate circumstances, a judge may order a defendant who is addicted to drugs to remain drug free as a condition of probation, and that a defendant may be found to be in violation of his or her probation by subsequently testing positive for an illegal drug. Accordingly, we affirm the finding that the defendant violated her probation and the order requiring her to submit to inpatient treatment for her addiction.
July 16, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)
Spotlighting disparities in resentencing of juve LWOP cases in Pennsylvania ... and and broader post-Miller challenges
The Philadelphia Inquirer has this effective new article headlined “Why are juvenile lifers from Philly getting radically different sentences from those in the rest of Pennsylvania?”. Here are excerpts:
While Pennsylvania’s Supreme Court has attempted to create clear guidelines for that work, now that more than 300 juvenile lifers have been resentenced across 31 counties, the disparities are striking.
“It’s still very county-dependent, fact-dependent, and there are still a lot of politics involved,” said Brooke McCarthy, who has been tracking the results for the Philadelphia-based nonprofit Juvenile Law Center. “If you look at the outcomes in Allegheny County, they are night and day from what we’re seeing in Philly. That’s true in various counties: In Bucks County, one judge has been handling the sentencing, and she’s been particularly harsh. Different folks are handling the same facts differently.”
In Philadelphia, the average sentence for a juvenile lifer has been 31 years to life. In Bucks County, no one has received less than 40 years....
County by county, judges have disagreed about whether sentences on multiple homicides ought to run concurrently or be stacked consecutively.
A Lancaster County judge last year imposed consecutive 40-years-to-life sentences for Michael Lee Bourgeois, for killing his adoptive parents in 2001 with three accomplices. And, in Allegheny County, a judge imposed three consecutive 25-to-life sentences on Donald Zoller, who killed three people when he was just 14; he won’t go before the parole board unless he lives to be 89.
But in Philadelphia, it’s been a different story. Jose Hernandez, convicted of killing four family members as a teen, received 45 years to life after the district attorney tried to offer him even less time. And another juvenile lifer, Jorge Cintron Jr., was resentenced to 30 years to life for three murders; he could be released by age 47.
Judges have also differed when it comes to tacking on additional time for associated charges, such as robbery, conspiracy, or possession of a firearm....
According to a Pennsylvania Supreme Court decision last year, a juvenile must be found to be “permanently incorrigible” before a life sentence can be imposed.
Now, state appellate courts will have to weigh in on a slew of follow-up questions being lobbed from all across the commonwealth. What comprises a de facto life sentence: Is 50 years too long? Is it constitutional to stack consecutive sentences such that a juvenile who is not incorrigible has no hope of release? What is a juvenile anyway — do 18-year-olds count? And, what factors must judges consider in the resentencings, which are supposed to take into account the reduced culpability of an immature, impulsive youth, as well as his or her capacity for change?...
In Michigan, home to 360 teen lifers, the state has sought to reimpose life without parole in more than half of its cases. In Virginia, Renwick said, “the commonwealth has fought at every step to prevent” resentencings. And in Illinois, which is working through the resentencings of about 100 juvenile lifers, Shobha Lakshmi Mahadev, a professor at the Children and Family Justice Center at Northwestern University School of Law, said the vast majority are being resentenced to 50 or 60 years in prison, many with no opportunity for early release.
Other states, such as Louisiana, have addressed the issue legislatively, by creating across-the-board parole eligibility — though in some jurisdictions that still means few, if any, lifers are actually being released.
“What these decisions have done is opened up this conversation and this question: How do you sentence a child or an adolescent? What our systems did before was just to treat kids as adults — and that is unconstitutional and, given what we know now, inappropriate,” Mahadev said.
July 15, 2018
"Incarceration, Recidivism, and Employment"
The title of this post is the title of this paper recently posted to SSRN authored by a group of economists. Here is its abstract:
Understanding whether, and in what situations, time spent in prison is criminogenic or preventive has proven challenging due to data availability and correlated unobservables. This paper overcomes these challenges in the context of Norway’s criminal justice system, offering new insights into how incarceration affects subsequent crime and employment. We construct a panel dataset containing the criminal behavior and labor market outcomes of the entire population, and exploit the random assignment of criminal cases to judges who differ ystematically in their stringency in sentencing defendants to prison. Using judge stringency as an instrumental variable, we find that imprisonment discourages further criminal behavior, and that the reduction extends beyond incapacitation.
Incarceration decreases the probability an individual will reoffend within 5 years by 29 percentage points, and reduces the number of offenses over this same period by 11 criminal charges. In comparison, OLS shows positive associations between incarceration and subsequent criminal behavior. This Sharp contrast suggests the high rates of recidivism among ex-convicts is due to selection, and not a consequence of the experience of being in prison. Exploring factors that may explain the preventive effect of incarceration, we find the decline in crime is driven by individuals who were not working prior to incarceration. Among these individuals, imprisonment increases participation in programs directed at improving employability and reducing recidivism, and ultimately, raises employment and earnings while discouraging further criminal behavior. For previously employed individuals, while there is no effect on recidivism, there is a lasting negative effect on employment. Contrary to the widely embraced ‘nothing works’ doctrine, these findings demonstrate that time spent in prison with a focus on rehabilitation can indeed be preventive for a large segment of the criminal population.