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July 28, 2018

State judge rejects constitutional attack on Tennessee's lethal injection protocol

The state of Tennessee has not conducted an execution in nearly a decade, but it has three scheduled for later this year including one slated for August 9.  The prospect of these executions going forward got more likely this past week after, as reported in this local article, a state judge rejected a suit brought by many death row inmates challenging the constitutionality of the state's lethal injection protocol.  Here are the basics:  

Tennessee can use controversial drugs to execute inmates on death row despite concerns from defense attorneys and experts that doing so is "akin to burning someone alive," a Nashville judge ruled Thursday. The ruling is a blow to 33 death row inmates who had challenged the state's lethal injection protocol, saying it led to cruel and unusual punishment forbidden by the U.S. Constitution. Among them is Billy Ray Irick, who is scheduled to be executed Aug. 9.

But the ruling won't be the final word.  The inmates' attorneys quickly announced they would appeal.

Davidson County Chancellor Ellen Hobbs Lyle issued the 51-page ruling on the case Thursday evening, forcefully denying the inmates' claims and saying they failed to meet two critical bars necessary to overturn an execution method....  "Although dreadful and grim, it is the law that while surgeries should be pain-free, there is no constitutional requirement for that with executions," Lyle wrote, echoing an argument made by attorneys for the state....

The inmates, who filed the suit against the state in February, did not argue against the death penalty itself. Instead, they focused on the use of midazolam, the first drug in the state's new protocol, that is meant to put an inmate to sleep before two other drugs stop the heart and lungs.

Experts who testified on the inmates' behalf said midazolam is often ineffective, leaving people awake and aware of the acidic poison that kills them. The experts pulled examples from executions across the country, in which witnesses saw inmates thrashing, moaning and crying as the drugs coursed through their veins. "That is akin to burning someone alive. That is not hyperbole. That is not an exaggeration," said Henry. "That's avoidable."

Lyle acknowledged that the inmates' case included testimony from "well-qualified and imminent experts," and she conceded "the inmate being executed may be able to feel pain from the administration of the second and third drugs."... But, Lyle wrote, the inmates' attorneys did not prove that the three-drug protocol would lead to prolonged periods of "needless suffering," one of the key factors that could lead to unconstitutional torture. She pointed to the relatively brief executions cited by the inmates' attorneys, which ended after an average of 13.55 minutes.

Deputy Attorney General Scott Sutherland, who represented the state and the Department of Correction, tied midazolam to ongoing work to make executions more humane. He pointed to rulings from the U.S. Supreme Court and other judicial panels that upheld executions using midazolam. And he said that the inmates had failed to prove pentobarbital was readily available to be used instead of the three-drug protocol.

Lyle agreed. "It is not enough, the United States Supreme Court has held, for the inmate to claim that the State’s method of execution is cruel and unusual," Lyle wrote. "The inmate must also make a claim in the lawsuit he files and must prove at trial in his case that there is a known and available method to execute him that, in comparison to the State’s execution method, significantly reduces a substantial risk of pain."

The state court ruling referenced in this article is available at this link, and here is a portion of the introduction to the 50-page opinion:

The law of the United States requires that to halt a lethal injection execution1 as cruel and unusual, an inmate must state in his lawsuit and prove at trial that there is another way, available to the State, to carry out the execution.  That is, the inmate is required to prove an alternative method of execution. Glossip v. Gross, 135 S. Ct. 2726, 2732-33 (2015). Absent proof of an alternative method, an execution can not be halted....

Thus, whether a lethal injection method is unconstitutional is a comparative analysis.  To halt a lethal injection execution as cruel and unusual, an inmate must prove not only that there is a better drug for lethal injection but that the better drug is available to the State.  That proof has not been provided in this case.

The Inmates who filed this lawsuit have failed to prove the essential element required by the United States Supreme Court that there exists an available alternative to the execution method they are challenging.  On this basis alone, by United States law, this lawsuit must be dismissed.

July 28, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Procedure and Proof at Sentencing | Permalink | Comments (0)

Interesting early information from the Safe Streets & Second Chances effort to take an evidence-driven approach to recidivism

Sssc_socialIn this post from January, I spotlighted the Safe Streets & Second Chances initiative which describes itself as an "an innovative program that takes an evidence-driven approach to the chronic issues of repeat offenders and recidivism, using academic research to craft individualized reentry plans that shift the ultimate measure of success from whether individuals are punished to whether these individuals are improved, rehabilitated, and capable of redemption."  This new Washington Post piece, headlined "Koch network project gears up to help inmates reenter society after prison," provides an interesting update on the project:

A new project funded by the network aligned with billionaire industrialist Charles Koch is tracking and monitoring 1,100 inmates in four states after they are released from prison starting Aug. 1 to help them successfully reintegrate into society.

Through the project, called Safe Streets and Second Chances, a team of researchers from Florida State University will evaluate former inmates for 15 months after their release — a volatile period that often leads to their rearrest. The project is in its $4 million pilot phase, as researchers prepare to test the effectiveness of a new reentry model that focuses on individualized plans to help inmates find healthy coping and thinking patterns, the right employment opportunities, and positive social engagement.

For the past six months, the researchers have been interviewing the men and women in the program, who are currently housed in 48 prisons in rural and urban areas in Texas, Florida, Pennsylvania and Kentucky. They will present the early findings today in Colorado, at the twice-annual meeting of the network’s largest donors....

The network is advocating a shift in the criminal justice system toward prioritizing rehabilitation and reducing recidivism, rather than focusing on punishment. For years, the network has pushed for bipartisan support for overhauling the criminal justice system, and has teamed up with Van Jones, a former Obama administration official and CNN political commentator, for the cause....

With the research conducted through Safe Streets and Second Chances, network officials say they want to transform the way reentry programs are run in communities across the country. “What we’re trying to do is to prepare prisoners to reenter society and become productive members and taxpaying citizens, hopefully living productive lives and taking care of their families,” said Doug Deason, a Dallas businessman and Koch network donor who is on the advisory council of Safe Streets and Second Chances.

After interviewing the inmates preparing for release, researchers found these prisoners overwhelmingly felt optimistic about their chances of rehabilitation in life outside prison but generally had high levels of trauma. Nearly 70 percent of people in the program reported seeing someone seriously injured or killed. Half the inmates had seen or handled dead bodies — more than a dozen times for some male prisoners. The majority of them reported having a close friend or family member who was murdered, and 58 percent reported having a drug use disorder.

People with untreated trauma symptoms are more likely to become impulsive and incorrectly perceive threats to themselves and others, which could lead to an act of crime and recidivism, according to Carrie Pettus-Davis, a Florida State University professor and the lead researcher. It also could affect their ability to navigate the laws restricting felons from employment, housing and education opportunities, she said.

“Despite all of the positive orientations and aspirations, this population also is really dealing with some very challenging circumstances,” Pettus-Davis said. “There’s an enormous amount of trauma represented for both men and women. ... Once people become incarcerated, we need to make sure we’re appropriately responding to experiences of psychological trauma.”

Lots of information and data about and from this project can be found in this new release from Safe Streets & Second Chances under the title "New Research Shows Incarcerated Individuals Want to Be Rehabilitated and Are Hungry for Second Chances as They Reenter Society." Here are excerpts (with links from the original):

Incarcerated individuals want to be rehabilitated, are eager for a second chance, and are emotionally capable of successfully reentering society, new independent data shows.

According to statistics compiled by Florida State University (FSU) researchers, both male and female participants said they want to work more, learn more, and spend more time on personal relationships, improving their health, and practicing their faith than they currently do while incarcerated. They also reported fairly high levels of emotional well-being, suggesting that they are primed to successfully rejoin society upon their release....

According to the data, inmates want to rehabilitate themselves through work, education, and faith, and spend more time on personal relationships.

  • Respondents expressed a desire to work or improve their work situation.
    • Men reported working about two hours a day but said they would like to work almost four times that amount.
    • Women reported working almost 1.5 hours per day but said they’d like to work over three times that amount.
  • Overall, respondents said they’d like to spend twice the amount of time they currently spend on school activities.
  • Both men and women said they want to devote more time to community involvement and spend twice as much time working on personal relationships.
  • Both groups said they’d like to spend more time each week on spiritual or religious activities.

Next, while individuals said they had experienced a generally high level of trauma in life, they also reported a fairly high level of emotional well-being.

  • Nearly 70 percent of participants said they had seen someone seriously injured or killed.
  • 50 percent said they had seen dead bodies (other than at a funeral) or had to handle dead bodies. Male respondents reported experiencing this an average of over 17 times.
  • Over 40 percent said they had been attacked with a gun, knife, or some other weapon by someone, including a family member or friend.
  • About 57 percent said that a close friend or family member had been murdered.
  • Over 32 percent of female respondents said they had been forced to have intercourse or another form of sex against their will.
  • On average, females reported having experienced sexual abuse as a child 8.88 times.
  • 58 percent reported having a drug use disorder, while 35 percent reported having an alcohol use disorder.
  • While both men and women reported similar levels of childhood emotional abuse, they also reported fairly high levels of current emotional well-being, suggesting that they are emotionally resilient and fit to contribute to society in a positive way.

July 28, 2018 in Data on sentencing, Detailed sentencing data, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

July 27, 2018

At resentencing, former New York Assembly speaker gets (only?) seven years in federal prison for corruption

As reported here by the New York Post, "Sheldon Silver, the disgraced ex-speaker of the New York state Assembly, was sentenced to seven years in prison — less than the 12 years he was sentenced to previously."  Here is the context:

The judge cited the 74-year-old Silver’s advanced age and the substantial monetary penalties she plans to levy, including a $1.75 million fine, in the lower sentence.

Silver was convicted in May — for a second time — of selling his office for $4 million in kickbacks, plus $1 million in profits, tied to two schemes. Before his arrest in 2015, Silver was one of the most powerful men in Albany — along with Gov. Andrew Cuomo and former Senate Majority Leader Dean Skelos.

At his 2016 sentencing, Judge Valerie Caproni — who sentenced him again this time around — ordered him to serve 12 years in prison and to forfeit nearly $5.2 in ill-gotten gains and another $1.75 million in fines. But Silver never served a day in prison because his 2015 conviction was overturned on appeal amid questions about the validity of the jury instructions, which were raised after the US Supreme Court narrowed the definition of bribery.

Silver’s lawyer Michael Feldberg has said he plans to appeal the second verdict as well, saying the feds once again failed to prove that Silver promised anything in return for the lucrative referrals he received....

During Friday’s sentencing, Caproni blasted Albany’s culture of corruption, noting that recent months have all “touched, directly and indirectly, the ‘three men in a room'” — the derisive term used to describe the governor and top leaders of the Senate and Assembly. “This has to stop,” she said. “New York state has to get its act together and do something institutionally to stop corruption.”

Still, she commended Silver for apologizing for his conduct this time around, which he did not do in 2016. “That was a wise decision on Mr. Silver’s part,” she said. “Mr. Silver’s conduct clearly caused discernible harm.” She also remarked on signs of wear and tear. “I feel like visually he’s aged more than the three years that have gone by chronologically,” she said.

Silver also spoke at the sentencing, saying that he is “extremely, extremely remorseful” for having “brought out a great deal of distrust in NY’s government.”

As noted in prior posts linked below, the original 12-year sentence given to Silver was still way below a calculated guideline range of 20+ years.  And this time around, the feds were asking for a sentence "substantially in excess" of 10 years.  So, Silver probably should feel a bit lucky he did not get an even longer term than seven years.  But even with some likely time off for good behavior, Silver now cannot be making any real retirement plans until 2025. 

Prior related posts:

July 27, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (6)

"Those in Federal Prison and Their Families Can’t Wait for the Ideal Reform Bill"

The title of this post is the title of Shon Hopwood's new entry over at Prison Professors.   This piece is styled as a response to the this lengthy Hill commentary by DeAnna Hoskins, the president and CEO of JustLeadershipUSA, which assailed the FIRST STEP Act as "a step backward [that] invites a scary future" (which I discussed critically here).  I recommend folks read everything in full, and I will here reprint how Shon's piece concludes:

I speak to and receive emails from thousands of families with someone in federal prison.  These families almost invariably support First Step.  At the Reform Now rally outside Capitol Hill in early July, many of these families explained how First Step will significantly improve their family’s lives — whether by forcing the Federal Bureau of Prisons to provide meaningful rehabilitation programs or housing their loved one closer to home.  The reform groups who oppose First Step weren’t present for the rally.  I wish they were. They’d have a better understanding of what makes the federal prison system uniquely harmful to those who are inside it, and how First Step will alleviate some of those harms.

The families who aren’t supportive of First Step are mostly those with loved ones serving really long sentences or life in prison, and this won’t help them get out of prison — even as it is likely to improve the federal prison system overall.  I empathize with their pain and frustration.  But retroactively applicable sentencing provisions has no chance of passing this year.  Not even the Fair Sentencing Act of 2010 was made retroactive when Democrats had a supermajority in Congress and the Presidency.  It is hard to imagine the current Congress somehow doing better.

First Step along with some sentencing additions is the best bill we can get now in the current political climate.  If we don’t take First Step now, we will be waiting at least another two years for any possibility of federal prison reform.  If the past thirty years is a guide, we are probably waiting much, much longer.  Given the stakes, there should be an urgency on all sides to get this done.

I understand that many people have strong feelings against the current President, and that undoubtedly drives some of the angst against First Step.  Yet there can be fights about every other issue without simultaneously rejecting a federal prison reform bill that provides meaningful help to those currently in prison and their families.

Some of many prior related posts:

July 27, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (3)

An (overly) optimistic account of how new Justices could disrupt federal sentencing based on uncharged and acquitted conduct

In this post earlier this month, I suggested that Justice Kennedy might be replaced by a new Justice more inclined to afford criminal defendants stronger Sixth Amendment rights under Apprendi and Blakely.  And this subsequent post highlighted that new SCOTUS-nominee Judge Brett Kavanaugh authored an interesting opinion a few years ago that expressed concern about the use acquitted conduct to increase sentences.  Against that backdrop, I was interested to see this new Law360 commentary authored by Alan Ellis and Mark Allenbaugh headlined "Sentencing May Change With 2 Kennedy Clerks On High Court." Here are excerpts from the start and end of the commentary:

Shortly before his confirmation just over a year ago, we wrote about what a now-Justice Neil Gorsuch could mean for federal sentencing.  In particular, we reviewed his Tenth Circuit opinion in United States v. Sabillon-Umana, wherein then-Judge Gorsuch, a former clerk for now-retiring Justice Anthony Kennedy, questioned the constitutionality of judicial fact-finding at federal sentencing, as opposed to fact-finding by a jury.  Known as “relevant conduct,” judge-found facts — which often include uncharged and even acquitted conduct — drive federal sentencings, often increasing terms of imprisonment by years and even decades.  As it turns out, another former Kennedy clerk, Judge Brett Kavanaugh of the U.S. Court of Appeals for the District of Columbia Circuit — who recently was nominated by President Donald Trump to take the retiring justice’s seat on the court — also shares Justice Gorsuch’s concern.  Accordingly, for the reasons discussed below, should Judge Kavanaugh be confirmed, we believe the “Kennedy clerks” will likely lead the court to finally rein in relevant conduct by holding unconstitutional the use of uncharged and acquitted conduct to enhance federal sentences....

Should Judge Kavanaugh be confirmed, we believe it quite likely that, based on his prior jurisprudence, the current manner in which relevant conduct or at least acquitted conduct is used to enhance sentences will soon be determined to be unconstitutional.

Though I certainly hope that new Justices could usher in a big changes to the modern federal sentencing system, I do not share these authors' view that such changes are "quite likely." In particular, finding unconstitutional any use of "uncharged" conduct at sentencing would be a real sea-change for lots of sentencing systems and practice, and I think a number of Justices would be hesitant to take Sixth Amendment doctrines this far.  But I still like this constitutional optimism even if I do not fully share it.

A few prior related posts:

July 27, 2018 in Blakely Commentary and News, Blakely in the Supreme Court, Booker and Fanfan Commentary, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

July 26, 2018

Michigan Supreme Court declares plea agreement provision barring pursuit of public office unenforceable as against public policy

A helpful reader alerted me to an interesting decision today by the Michigan Supreme Court in Michigan v. Smith, No. 156353 (Mich. July 26, 2018) (available here). Here is how the court's majority opinion gets started:

As part of defendant’s plea deal, he agreed to resign his position as a state senator and not seek public office during his five-year probationary term.  After reviewing the agreement, the trial court determined that these terms violated the separation-of-powers doctrine and public policy.  It struck down the terms but, over the prosecutor’s objection, enforced the rest of the plea deal.  The Court of Appeals affirmed.

We took this case to decide whether the resignation and bar-to-office provisions of the plea deal were enforceable, and if not, whether the trial court erred by refusing to allow the prosecutor to withdraw from the deal.  We hold that: (1) the question regarding the resignation provision is now moot and we therefore decline to reach it and instead vacate the Court of Appeals’ discussion of that issue, (2) the bar-to-office provision is unenforceable as against public policy, and (3) the trial court erred by not permitting the prosecutor to withdraw from the plea agreement under People v Siebert.  We would have further held that the validity of the bar-to-office provision must be assessed under the balancing test in Town of Newton v Rumery. [FN: Town of Newton v Rumery, 480 US 386; 107 S Ct 1187; 94 L Ed 2d 405 (1987). Because the partial concurrence did not join this portion of the opinion, adoption of the Rumery test failed to garner majority support.]

And here is a key passage in the court's discussion:

However egregious defendant’s alleged offenses may be, they do not directly relate to the duties and responsibilities of public office — he was not charged with misconduct that was in any manner related to public office. Consequently, the prosecutor can point to no legitimate reason for the bar-to-office provision.  Its inclusion in the plea agreement reflects, instead, the prosecutor’s own conclusion that defendant should not serve in public office.  Our laws do not give prosecutors the unilateral authority to make this determination.

July 26, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Ohio gubernatorial candidate talking up criminal justice reform while advocating for state constitutional drug sentencing initiative

A couple of week ago, I flagged here an interesting and intricate drug sentencing initiative headed for the November 2018 ballot here in Ohio.  As of earlier this week, the "Neighborhood Safety, Drug Treatment and Rehabilitation" amendment (in full at this link) officially qualified for the fall ballot as Issue 1.  And, as reported in this local article headlined "Cordray, Holder support diversion of drug offenders from prison," this proposal is already receiving high-profile support:

Ohio no longer can afford — both in terms of money and lives — to imprison low-level drug offenders who instead should be diverted to addiction treatment, says Democratic gubernatorial candidate Richard Cordray.  “We need to be tough on violent criminals, but mass incarceration of drug addicts who should be in treatment is unwise, it wastes too much money and it wastes a lot of lives in Ohio,” Cordray said.

The former Ohio attorney general was joined by former U.S. Attorney General Eric Holder to discuss criminal justice reform at a Thursday campaign event at the Downtown YWCA.  The Democrat who served under former President Barack Obama spoke out against “warehousing” minor criminal offenders, saying governors and state attorneys general must steer new policy courses.

Holder chided Republican President Donald Trump and his U.S. attorney, Jeff Sessions, for “going back to the bad, old days of unthinking (criminal) sentences” for non-violent offenders who deserve another chance.

Cordray underlined his strong support for state Issue 1 on the Nov. 6 ballot that would reclassify low-level felony drug use and possession charges to first-degree misdemeanors punishable by only six months in jail, with the goal of diverting offenders to drug treatment.  It also would potentially allow the release of all current such offenders from state prisons.  “I believe It will set the way toward a policy of being smart on crime in the future, smart on how we use taxpayers’ dollars, smart on how we build people’s potential to be productive citizens in our society,” Cordray said.

Holder and Cordray agreed such a sentencing reform would be neither easier nor cheap in the short run, but provide savings and resuscitate more Ohioans from drugs and failed lives in the long run.

Comment is being sought from the gubernatorial campaign of Republican Mike DeWine, Ohio’s attorney general, whether he supports or opposes the statewide ballot issue.

The administration of Republican Gov. John Kasich is spending up to $58 million over two years to divert a flood of non-violent felony offenders, many convicted of drug possession amid the opioid crisis, from state prisons to local programs.  Many counties, however, are not accepting the money, saying it would not cover all local costs. More than a fourth of state inmates are non-violent drug offenders....

A Republican National Committee spokeswoman lambasted the pair.  “Richard Cordray’s decision to fund-raise with disgraced former Attorney General Eric Holder proves just how swampy and out-of-touch he is with Ohioans.  You can tell a lot about a person based on the company they keep, and if Cordray chooses Eric Holder as an ally, then Ohioans ought to be wary and steer clear of Richard Cordray,” said Mandi Merritt.

Prior related post:

July 26, 2018 in Drug Offense Sentencing, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (1)

Interesting reflections on modern clemency realities

I flagged in this prior post an interesting star-studded event in DC yesterday discussing federal clemency's past, present and possible future.  This Washington Examiner piece reports on some of the interesting things said at the event under the headline "Alice Johnson recalls 'feeling of betrayal' from Obama, urges working with Trump."  Here are excerpts:

Former prison inmate Alice Johnson said Wednesday she had a "feeling of betrayal" when former President Barack Obama left office with her still behind bars, urging other clemency aspirants to put aside their qualms and work with President Trump to win their release.

Johnson, who Trump freed last month from a drug-related life sentence, spoke at a gathering of clemency advocates at George Washington University, saying her case should give hope to others. "From what everyone was saying, the Obama administration would be the one that would set you free, but I was still not set free. So to put your faith in a man was not a good thing to do," Johnson said.

"And not only was I left behind, but many others were left behind also," Johnson said. "There was a feeling of betrayal because I had so much hope that I was going to come out." Johnson, who addressed the gathering before a series of panels, and then again as a panelist, said she thinks there was a divine purpose in her wait. "It didn't happen for a reason. It happened for this time in history so that you will know that hearts can change, so that you will know that you should never stop fighting either, that you are not to look at what administration is in power, who is in office," she said....

Panelists at the clemency-themed event at points debated the merits of former President Barack Obama's late-second-term spree of prison commutations, which went overwhelmingly to drug convicts, a large share of whom were convicted for crack cocaine.  "The initiative missed a ton of people," said Rachel Barkow, a law professor and member of the U.S. Sentencing Commission. Barkow argued that a major flaw was relying on the Justice Department, saying that prosecutors are disinclined to recognize mistakes. "The deputy attorney general was saying 'no' in a lot of these cases," she said.

Roy Austin, a White House official in the Obama administration, defended Obama's late-term commutation push, saying "I'm biased, [but] we got it pretty dang right." Austin said he "loves" Trump's openness to recommendations from influential people, but that "the problem is that that's helping too few," and lacks a standardized process to ensure fairness.

Van Jones, an early-term Obama adviser who helps lead the clemency campaign #Cut50, offered positive views on the Trump administration, saying that at first "I was hopeless on election night" about clemency. "He took one step and got positive feedback," Jones said about Johnson's release, Trump's second prison commutation and his first for a drug convict.

Trump's subsequent invitation for professional athletes to submit the names of people worthy of clemency — an offer with few respondents — was "a remarkable development," Jones said. "He literally ran out of the White House saying, 'I want to do more.'"...

Several panelists discussed ideas for moving the vetting work of the Office of the Pardon Attorney out of the Justice Department, to streamline clemency applications and remove a possible conflict of interest.

Amy Povah, a Clinton clemency recipient who leads the CAN-DO Foundation, said that she's optimist about the Trump administration. "I think we have a huge opportunity because of [Johnson's] case, and I hope the Trump administration does something historic," Povah said.

Mark Holden, general counsel of Koch Industries, said clemency transcends the typical conservative-liberal divide in politics. "These are fundamental liberty issues," he said, arguing that Johnson's case "shocks the conscience" regardless of political affiliation.

I sincerely want to be as optimistic and hopeful as Amy Povah about Prez Trump doing something historic in this arena.  But all of his clemency chatter needs to become clemency action before too long if he wants to avoid creating a "feeling of betrayal" among a whole lot of federal prisoners now surely eager to benefit from all his encouraging talk.

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

July 26, 2018 in Clemency and Pardons, Criminal justice in the Obama Administration, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

July 25, 2018

An interesting political pitch for the FIRST STEP Act

Star-parkerStar Parker, a conservative commentator who is founder and president of the Center for Urban Renewal and Education (CURE), has this notable new Townhall commentary under the headline "Senate Should Pass the First Step Act." In addition to praising the substantive provisions of the FIRST STEP Act, the commentary makes some interesting political points in an effort to convince GOP leaders in the Senate to move forward with the bill. Here are excerpts:

You would think that Senate Republicans would be rolling out the red carpet for the First Step Act, particularly given that it's an initiative that started in the White House. Unfortunately, that's not happening. Senate Judiciary Committee Chairman Chuck Grassley is not moving to embrace this bill because it doesn't including sentencing reform.

With all due respect to Senator Grassley, he's making a mistake. And as a result he's hurting his party and his country.

In all my years working in public policy, one lesson I have learned is that it is an invitation for failure to try to deal with a complex issue, one having a number of separate components, in a single huge, complicated piece of legislation. The result is either no action or a sweeping -- and bad -- law....

Everyone agrees we have a criminal justice problem. But like so many other areas, there is a woeful lack of agreement about what is causing the problem and how to solve it. And this brings us back to the incredible bipartisan passage of the First Step Act.

Senate Majority Leader McConnell and Senator Grassley should see this as an opportunity for the Republican-controlled Congress to show it can act decisively on a major national problem. Holding up prison reform to add on the complex issue of sentencing reform will result in what I said above: either nothing will happen or we'll get one big unworkable bill.

Furthermore, prison reform has major racial implications. Blacks, who constitute 12 percent of the population, make up 33 percent of the prison population. Hispanics, who constitute 16 percent of the general population, make up 23 percent of the prison population.

It's no accident that the NAACP opposes the bill. Or that Obama administration Attorney General Eric Holder wrote in The Washington Post against it. Or that two very politically ambitious black Democratic Senators, Kamala Harris and Cory Booker, oppose it.

Passage of the First Step Act would show that Republicans care and can help a large part of minority America in distress. Black Democrats don't want this to happen.

Senate Republicans must keep an eye on retaining control in November. They should get on the same page with the White House and the House and pass the First Step Act.

Some of many prior related posts:

July 25, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Prisons and prisoners, Who Sentences | Permalink | Comments (4)

"Procedural Justice and Risk-Assessment Algorithms"

The title of this post is the title of this article recently posted to SSRN and authored by A.J. Wang. Here is the abstract:

Statistical algorithms are increasingly used in the criminal justice system.  Much of the recent scholarship on the use of these algorithms have focused on their "fairness," typically defined as accuracy across groups like race or gender.  This project draws on the procedural justice literature to raise a separate concern: does the use of algorithms damage the perceived fairness and legitimacy of the criminal justice system?

Through three original survey experiments on a nationally-representative sample, it shows that the public strongly disfavors algorithms as a matter of fairness, policy, and legitimacy.  While respondents generally believe algorithms to be less accurate than either psychologists or statutory guidelines, accuracy alone does not explain their preferences. Creating "transparent" algorithms helps but is not enough to make algorithms desirable in their own right.  Both surprising and troubling, members of the public seem more willing to tolerate disparate outcomes when they stem from an algorithm than a psychologist.

July 25, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences | Permalink | Comments (1)

July 24, 2018

Louisiana Attorney General suggests pursuing alternative execution methods in letter to Governor

This local article, headlined "Electrocution, firing squads should be options for death penalty in Louisiana, AG Jeff Landry tells Gov. Edwards," reports on an interesting letter about the death penalty in the midst of a kind of intramural fight between Louisiana office-holders of different parties.  Here are the basics:

In their ongoing bickering over the death penalty, Louisiana’s Republican attorney general Tuesday asked the Democratic governor to support bringing back hanging, firing squads and the electric chair.

After the back and forth over capital punishment last week between the two possible rivals in next year's gubernatorial race, Attorney General Jeff Landry issued a letter Tuesday [available here] saying Gov. John Bel Edwards’ statements on why Louisiana hasn’t moved forward on executing convicted murderers are “both intentionally misleading and cold comfort to victims’ families.”

Landry again demanded Edwards say where he personally stood on the death penalty.  Then Landry proposed legislation that would change the state's capital punishment law to allow for different forms of execution other than just lethal injection.  He recommended the Legislature pass a law that would allow the state Department of Corrections to choose between hanging, firing squads, and electrocution to put condemned criminals to death if other methods are unavailable.  He asked for Edwards' support.

"Mr. Landry is accurate in that new legislation must be proposed to solve the death penalty issue.  However, in the past three legislative sessions Mr. Landry’s office has not presented any legislation to help alleviate this roadblock, until now," Department of Corrections Secretary James M. LeBlanc said.  Only a legislator can submit a bill for consideration of becoming law.  The next legislative session is scheduled to begin April 8.

Edwards has consistently ducked stating his personal view on capital punishment, saying instead that he has sworn to uphold state and federal laws.  “But I am not going to pretend that we have the ability to do something we don’t have. It’s not about scoring political points.  It’s about being realistic in the way we govern,” Edwards told reporters Monday, the day before Landry’s letter was released publicly.

In answering questions during a highway project groundbreaking ceremony on Monday, Edwards said he specifically did not favor hangings or firing squads. "I am not inclined to go back to methods that have been discarded (when) popular sentiment turned against methods that were deemed to be barbaric and so forth.  We have a law in place we will continue to try to search for solutions around that law," which allows execution by lethal injection, the governor said.

After Landry’s letter was released to a television station Tuesday, the governor’s spokesman, Richard Carbo, said in a prepared statement: “We are pleased that he has conceded that current law, not the governor, is standing in the way of the state resuming executions, which have been on hold since 2010.  Quitting the very lawsuit that was meant to bring justice for these families was never the answer, so his commitment to re-engage is welcome news.”...

Louisiana last executed an inmate, who volunteered to be put to death, in 2010.  Before that the last person executed was in 2002 during Gov. Mike Foster’s administration. Seventy-two inmates are on death row at the Angola penitentiary awaiting execution....

Landry would change the law to say that if lethal injection is unavailable then the method would be nitrogen hypoxia.  That mode basically fills an air tight mask on the condemned with nitrogen gas, thereby causing death by a lack of oxygen.  Oklahoma legislators have looked at that method of execution as a way around the inability to purchase the drugs needed for lethal injections. If nitrogen hypoxia is found unconstitutional or becomes otherwise unavailable, then Corrections Department secretary could choose between hanging, firing squad or electrocution, under Landry’s proposal.

July 24, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Who Sentences | Permalink | Comments (4)

A friendly brief on the intersection of Eighth Amendment juvenile sentencing jurisprudence and the federal sentencing guidelines

I was pleased to have as one project this summer helping to draft an amicus brief in support of a Ninth Circuit en banc petition in US v. Riley Briones. In a split decision handed down in May, a panel of the Ninth Circuit affirmed the district court adoption of the the federal sentencing guidelines as the key factor in the course imposing a life without parole federal sentence on a juvenile offender. The panel opinion is available at this link, with Judge Johnnie Rawlinson authoring the majority opinion (joined by district judge David Ezra) and Judge Diarmuid O’Scannlain authoring the dissent.

The amicus brief which can be downloaded below argues, in short form, that “It is unreasonable — and unconstitutional — for a court to routinely apply the Sentencing Guidelines when a defendant is subject to a Guideline sentencing range of life without parole for a crime committed as a juvenile.” In longer form, here is the start of the brief's "Summary of Argument":

The Supreme Court’s Eighth Amendment jurisprudence has long stressed that youth must matter in sentencing. Nearly four decades ago, in Eddings v. Oklahoma, 455 U.S. 104 (1982), the Supreme Court, explaining why an offender’s age and maturity is critical to any assessment of just punishment, stressed that “youth is more than a chronological fact” and that “minors often lack the experience, perspective, and judgment expected of adults.” Id. at 115–16.  More recently, in a line of cases beginning with Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth Amendment forbids execution of juvenile offenders), and extending now through Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (holding that the Eighth Amendment forbids sentencing a juvenile offender to life without parole unless his crime reflects irreparable corruption), the Court has developed substantive and procedural rules to operationalize the Eighth Amendment mandate that “children are constitutionally different from adults for purposes of sentencing.” Id. at 733 (quoting Miller v. Alabama, 567 U.S. 460, 471 (2012)); accord Graham v. Florida, 560 U.S. 48, 68 (2010).  This constitutional principle flows from the reality that children, compared to adults, are less mature, more susceptible to negative influences, and more capable of reform — and so any penological justifications for the harshest adult punishments “collapse in light of ‘the distinctive attributes of youth.’” Montgomery, 136 S. Ct. at 733–34 (quoting Miller, 567 U.S. at 472).  Thus, both sound sentencing policy and settled constitutional doctrine forbid a sentencing court from treating a juvenile as though he were an adult.

Yet that is precisely what the U.S. Sentencing Guidelines encourage sentencing courts to do.  Problematically, the Guidelines have no provisions that readily permit consideration of “the distinctive attributes of youth.”  The Guidelines — designed with adult offenders in mind — give no attention to any youth-related consideration in standard offense-level calculations, and they discourage consideration of age “in determining whether a departure is warranted” except in “unusual” cases. U.S.S.G. § 5H1.1.  Given that the Guidelines impart to sentencing courts a strong “anchoring” effect — as the Supreme Court has recognized, see Peugh v. United States, 569 U.S. 530, 541–42 (2013) — and that in a majority of cases judges do not deviate from the Guidelines range absent a government motion to do so, routine application of the Guidelines to juvenile offenders is fundamentally inconsistent with the Supreme Court’s Eighth Amendment jurisprudence.

The highly deferential standard of review that appellate courts apply to within-Guidelines sentences only exacerbates the tensions between standard Guideline-sentencing procedures and constitutional requirements.  Absent searching substantive review of Guidelines sentences, an appellate court risks endorsing a sentencing system that unconstitutionally discourages consideration of an offender’s youth and its attendant characteristics.  The Guidelines, if applied in their standard manner to a juvenile offender, thus result in a federal sentencing regime that is fundamentally inconsistent with the Eighth Amendment requirements articulated in Roper, Graham, Miller, and Montgomery.

Download FILED Briones Brief of Amici Curiae Criminal-Sentencing Scholars ISO Petition for Rehearing En Banc

A terrific pair of lawyers at Sterne, Kessler, Goldstein & Fox helped make this brief become a reality (and get filed), and I am also thankful to a group of academics who signed on to this brief.

July 24, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Three+ years after death sentencing, lawyers for Boston Marathon bomber Dzhokhar Tsarnaev have "flagged roughly 30 issues" for his appeal

It seems like it has been a long time since I blogged by the Boston Marathon bomber, Dzhokhar Tsarnaev. And indeed it has been: a jury handed down Tsarnaev death sentence back in May 2015, a full month before Donald Trump had even announced he was running for President.  But now more than three years after his death sentencing, Tsarnaev is in the news via this Boston Globe story headlined "Lawyer for Boston Marathon bomber maps out appeal of death penalty sentence." Here are excerpts:

Lawyers for Boston Marathon bomber Dzhokhar Tsarnaev have flagged roughly 30 issues they plan to raise when he appeals his death sentence, according to a recent legal filing. A motion filed last week with the US Court of Appeals for the First Circuit in Boston said the attorneys have “identified approximately 30 appellate claims to consider raising in Mr. Tsarnaev’s [appellate] brief.”

Tsarnaev’s lawyers requested that the Aug. 20 deadline for filing their highly anticipated brief be pushed back to Nov. 18, citing their ongoing analysis of some 10,000 pages of transcripts in the case.  “Even relative to other federal capital appeals and terrorism appeals across the country, the record here is voluminous,” David Patton, a member of Tsarnaev’s appellate team, wrote in the motion.

Tsarnaev, 25, was convicted in 2015 for his role in the April 2013 Marathon bombings, which killed three people including an 8-year-old boy and wounded more than 260 others. He was sentenced to death and is currently incarcerated at a federal supermax prison in Colorado. Tsarnaev and his older brother and accomplice, Tamerlan, also killed an MIT police officer while they were on the run. Tamerlan Tsarnaev was killed in a confrontation with police in Watertown days after the bombings....

Patton listed additional issues that Tsarnaev’s team expects to raise on appeal. “Counsel have completed drafts of a substantial portion of the remaining claims, including issues concerning venue, multiple errors in the selection of the death-qualified jury, the admission of evidence obtained through the use of Mr. Tsarnaev’s involuntary confession, the lawfulness of certain counts of conviction . . . the exclusion of relevant mitigation material, improper prosecutorial arguments, and the admission of victim impact evidence from survivors,” Patton wrote. “But, despite continuous effort, a number of issues identified and determined to be sufficiently weighty for inclusion remain to be drafted.”

I would expect the First Circuit to give Tsarnaev's lawyers into the fall to complete their brief, and I would also guess the feds will need at least a few extra months to complete a response. Consequently, the First Circuit argument in the case will surely be heard no sooner than 2019, and I would not expect an opinion from the First Circuit until probably early 2020. Then surely comes en banc petition, a cert petition and likely at least one 2255 motion.

July 24, 2018 in Celebrity sentencings, Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (12)

Could Judge Brett Kavanaugh, as a SCOTUS Justice, encourage his colleagues to take up acquitted conduct sentencing?

The question in the title of this post is prompted by this new Marshall Project piece by Joseph Neff headlined "Punished for Crimes Not Proven: Brett Kavanaugh and the case of Gregory 'Boy Boy' Bell."  Here is how the piece starts and ends:

After a nine-month trial, a jury convicted Gregory "Boy Boy" Bell of selling crack cocaine, three sales totaling five grams and carrying a sentence in the five-year range. More importantly for Bell, the jury acquitted him of 10 serious charges, including a trafficking conspiracy and a racketeering conspiracy that would have meant decades in prison.

At sentencing, the judge ruled that Bell had engaged in the exact same crack cocaine conspiracies that the jury had rejected. The five grams of crack became 1,500 grams, and the judge sentenced Bell to 16 years, not the expected five.

Critics object that the use of “acquitted conduct” to justify longer sentences empowers prosecutors and judges to ignore the judgment of the jury, to base sentences on facts rebuffed by the citizens in the jury box.

Those critics include one of Bell’s jurors and Court of Appeals Judge Brett Kavanaugh, the current nominee to the U.S. Supreme Court. “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 a jury trial,” Kavanaugh wrote about Bell’s case in 2015 [available here].

Kavanaugh noted that he and his colleagues on the appeals court were powerless to overturn the sentence.  They are required to follow the rulings of the U.S. Supreme Court, which has allowed acquitted conduct to be a factor in sentencing.  In the meantime, Kavanaugh reminded trial judges that, when asked to use acquitted conduct to increase sentences, they can just say no....

Acquitted conduct and its legal siblings — dismissed conduct and uncharged conduct — are contentious subjects in the arcane world of federal sentencing law.  The tension arises from different standards of proof used at trial.  Juries convict after finding proof beyond a reasonable doubt.  At sentencing, judges use the preponderance of the evidence, a standard requiring more than 50 percent of the evidence to prove something, like the tip of a scale.

The standard makes sense in discretionary sentences, used in varying degrees in all state and federal courts.  Legislatures set ranges for criminal sentences: probation to 20 years in prison, for example, or, five years to life.  In fashioning a precise sentence within a wide range, a judge weighs aggravating and mitigating factors such as criminal record, education, victim testimony, family life, military service, abuse or neglect as a child and work history.

Dating back at least to 1949, the U.S. Supreme Court has allowed judges to use uncharged conduct to increase sentences. In later rulings, the Supreme Court explicitly allowed federal judges to make findings of fact that include acquitted conduct at sentencing. But the law is muddled. The Supreme Court began to limit the effect of uncharged and acquitted conduct in 2000, but more recent decisions have undercut those cases.  In Kavanaugh’s words, the Supreme Court lurched toward sentencing reform only to back away.

The court has since avoided the issue. In 2014, the Supreme Court declined to hear the cases of three Congress Park co-defendants: Joseph “JoJo” Jones, Desmond “Dazz” Thurston, and Antwuan “Big Ant” Ball.  Each had his sentence tripled or more based on allegations the jury found unpersuasive.  Justices Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg wanted to hear those cases.  In a dissent, they said the time had come to confront acquitted conduct: “This has gone on long enough.”  It takes four justices to accept a case.

If Kavanaugh tips the balance,it will be too late for Gregory “Boy Boy” Bell, who has been locked up since his arrest in 2005.  He is scheduled to be released on Sept. 4.

In this post earlier this month, I asked "Might Justice Kennedy's retirement lead to defendants having stronger Sixth Amendment rights under Apprendi and Blakely?".  In that post, I highlighted Justice Kennedy's historic hostility to Apprendi and its Sixth Amendment progeny.  The Bell case is properly considered exhibit A to support the possibility that a possible Justice Kavanaugh will have a more rights-protective approach to these issues.  (Then again, Judge Kavanaugh has been heard to compliment the late Chief Justice Rehnquist, who authored the Watts opinion blessing acquitted conduct guideline enhancement in the pre-Apprendi world.)

That all said, it is worth remembering that Chief Justice Roberts and Justices Kagan and Sotomayor also refused to vote to grant cert in the Ball case in 2014 (details here), even though all three had voted for extensions of Apprendi rights in prior cases like Southern Union.  Especially with Justice Kennedy gone and thus only Justices Breyer and Alito being on record as being eager to allow judges to enhance sentences without significant constitutional restraint, it is certainly possible to imagine the newer Justices (Gorsuch and Kavanaugh if conformed) convincing the likes of Roberts and Kagan and Sotomayor to be willing to take up this matter.  I sure hope so, but I will not be holding my breath.

A few prior posts with thoughts on a post-Justice Kennedy Court:

Previous related posts on the DC cases discussed above:

July 24, 2018 in Blakely Commentary and News, Booker and Fanfan Commentary, Drug Offense Sentencing, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

July 23, 2018

Notable discussion of clemency's past, present and possible future in DC on July 25

As detailed in this press release, an impressive and diverse collection of experts will be speaking about clemency this week at the George Washington University Law School. Here are a few details about the event from the release:

Criminal Justice Reform Advocates to Hold Forum on July 25 to Discuss Clemency in the Trump Era, Featuring Commutation Recipient Alice Johnson & Bipartisan Clemency Advocates

What: Justice Roundtable will host a forum on July 25, 2018 from 11:30 am to 2:00 pm to explore clemency for drug offenses, focusing on its use in the Bush, Clinton and Obama presidencies, how it is being handled during the Trump presidency and concrete ways it can be enhanced today and beyond.

Where: George Washington University Law School, Moot Court Room 2000 H Street NW, Washington, DC

When: 11:30 am to 2:00 pm; Wednesday, July 25, 2018

Here is how the clemency panel discussion is structured and scheduled speakers:

What it Was

  • Roy Austin, former White House Domestic Policy Council
  • Rachel Barkow, Commissioner U.S. Sentencing Commission
  • Jason Hernandez, sentence commutation by President Obama
  • Amy Povah, Director CAN-DO Foundation & Clinton commutee

What it Is

  • Mark Holden, General Counsel, Koch Industries
  • Van Jones, political commentator, host of The Van Jones Show
  • Brittany Barnett, founder Buried Alive Project, Attorney for Alice Johnson
  • Alice Marie Johnson, sentenced commutation by President Trump

What it Can Be

  • Mark Osler, Professor & Distinguished Chair, Univ. of St. Thomas Law School
  • Paul Larkin, Senior Fellow, Meese Center, Heritage Foundation
  • Ebony Underwood, founder, We Got Us Now
  • Andrea James, Natl Council Incarcerated & Formerly Incarcerated Women & Girls

July 23, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

"Judicial Delegation"

The title of this post is the title of this new paper on SSRN authored by David Abrams, Roberto Galbiati, Emeric Henry and Arnaud Philippe.  Here is its abstract:

Greater delegation of authority to judges allows them to tailor decisions more precisely to the facts of the case and local norms, but also increases the likelihood of judicial capture, especially by repeat litigants.  Three main approach have historically been taken to address this in the criminal law realm: judicial elections, judicial rotation and sentencing guidelines.

We investigate some of the trade-offs inherent in the different approaches using data from North Carolina which has the unusual feature of frequent judicial rotation as well as elections and sentencing guidelines.  We find that sentences converge over time within a judicial spell in a district to the local average sentence.  We also document that the more prior interactions a judge has with a defense attorney, the more sentences decline.  Finally, we show that judges respond to electoral cycles and that elections thus can be a way to discipline them.

July 23, 2018 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

A father's perspective on clemency and its potential (and limits)

A helpful reader alerted me to this interesting new commentary authored by John Owen, headlined "A father's plea for mercy for his imprisoned daughter."  Here are excerpts:

President Donald Trump’s recent pardons and commutations have spotlighted, once again, the importance of executive clemency to soften the harshness of our criminal justice system.  President Abraham Lincoln was famous for preferring mercy over “strict justice.”  In fact, he used his clemency power so liberally, his attorney general had to assign someone to shadow him to record the names of all those he pardoned or commuted, according to author Margaret Love....

That’s how executive clemency is supposed to work.  It operates outside our rule of law, but it also respects it. It is the personal prerogative of the leader and so, inevitably, can be arbitrary.  It is also a message to our branches of government and to our society to mitigate our desire for vengeance with compassion....

I have spent the past nine years grieving the almost 20-year sentence imposed on my daughter, Mary Anne Locke, for her low-level, non-violent role in a meth distribution conspiracy.  She was ordered to report to federal prison in 2009, six weeks after she had a Cesarean section.  Along with her baby, she left behind a loving husband and two other children.

Mary Anne did not have an easy life, and I accept the role I played in that.... In her early teens, Mary Anne found drugs and men who were themselves substance abusers and also physically violent....  She relapsed at age 28, triggered by personal tumult, as well as health problems for which she was prescribed amphetamines. It was around this time that she became involved with the head of the meth conspiracy charged in her federal case. He gave her an unlimited supply of meth and, in return, embroiled her in a supportive capacity in his drug distribution activities.

Pregnant with her second child in 2007, Mary Anne again disavowed the drug lifestyle.  The indictment in her federal case was handed down in 2008, when she was pregnant with her third child, after two years of sobriety and a wonderful marriage with her then husband, who had no connection with her drug activities. She cooperated fully upon arrest, at considerable risk to herself.

Imagine our family’s devastation when she was sentenced to 234 months, or 19.5 years.  Murderers get less time. Although nationally, statistics indicate that defendants with her characteristics would receive an almost 50 percent reduction of their applicable guideline, the judge gave her just a 20 percent reduction.  Mary Anne was not the kingpin or organizer. She never engaged in or threatened any violence.  She played a supportive role to fund her addiction.  She had never spent more than a night in custody.  She is precisely the kind of low-level player deserving of leniency.

Rather, her sentence was driven by the charging decisions of the prosecutors she faced and the particular sentencing philosophy of her judge.  This judge has been critiqued as one of the harshest in the country.  In fact, she is the only sitting judge to have been subject to a commutation by Trump (the 27-year sentence of Sholom Rubashkin).  Moreover, today, not only would another judge give Mary Anne an almost 50 percent reduction of her applicable guideline, Mary Anne’s sentencing guideline would be substantially lower....

Needless to say, Mary Anne has served the top end of that guideline.  And she has done so with distinction.  She has been an exemplary prisoner — discipline-free, who has worked and studied consistently throughout her sentence, completing her final year in a three-year college program in office administration.  Don’t get me wrong.  Mary Anne broke the law and deserved punishment.  But her lengthy sentence violates any basic notions of justice and proportionality.  She deserves mercy.

She applied for clemency before President Barack Obama, and has again applied before President Trump.  She was represented in both applications by the Clemency Project at the University of Minnesota Law School.  I am a lifelong Republican. I am, however, forever grateful to Obama for bringing executive clemency back to its roots — to address systemic unfairness, while also acknowledging the humanity of each person behind bars.  I am also buoyed by Trump’s recent clemency decisions, and his pronouncements that he plans to use it even more expansively.

But nothing beats a legislative solution that grants my daughter — and the thousands of prisoners like her — a “second look” at the severity and fairness of their sentence, in a public proceeding, with a judge and an advocate.

July 23, 2018 in Clemency and Pardons, Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (16)

"The Budgetary Effects of Ending Drug Prohibition"

The title of this post is the title of this notable new paper authored by Jeffrey Miron published by the Cato Institute. Here is how it starts:

In the past several years, the national movement to end drug prohibition has accelerated.  Nine states and Washington, DC, have legalized recreational marijuana, with at least three more states (Connecticut, Michigan, and Ohio) likely to vote on legalization by the end of 2018.  Dozens of others have decriminalized the substance or permitted it for medicinal use.  Moreover, amid the nation’s ongoing opioid crisis, some advocates and politicians are calling to decriminalize drugs more broadly and rethink our approach to drug enforcement.

Drug legalization affects various social outcomes.  In the debate over marijuana legalization, academics and the media tend to focus on how legalization affects public health and criminal justice outcomes.  But policymakers and scholars should also consider the fiscal effects of drug liberalization.  Legalization can reduce government spending, which saves resources for other uses, and it generates tax revenue that transfers income from drug producers and consumers to public coffers.

Drawing on the most recent available data, this bulletin estimates the fiscal windfall that would be achieved through drug legalization.  All told, drug legalization could generate up to $106.7 billion in annual budgetary gains for federal, state, and local governments.  Those gains would come from two primary sources: decreases in drug enforcement spending and increases in tax revenue.  This bulletin estimates that state and local governments spend $29 billion on drug prohibition annually, while the federal government spends an additional $18 billion.  Meanwhile, full drug legalization would yield $19 billion in state and local tax revenue and $39 billion in federal tax revenue.

In addition, this bulletin briefly examines the budgetary effects of state marijuana legalizations that have already taken place in Colorado, Oregon, and Washington.  This study finds that, so far, legalization in those states has generated more tax revenue than previously forecast but generated essentially no reductions in criminal justice expenditure. The bulletin offers possible explanations for those finding.

I cannot help but being a bit suspicious of parts of this paper because the very first sentence is a little off:  it is not at all "likely" that Connecticut or Ohio will have marijuana legalization votes in 2018.  Michigan will be having an initiative vote in November, and it is possible that Missouri, North Dakota and Oklahoma voters all could also have a chance to vote for full legalization, too.   This state-vote accounting snafu notwithstanding, the other forms of accounting in this paper still seem to me worth checking out, and the paper also seem to provide a good excuse to link to a few related recent posts from Marijuana Law, Policy and Reform:

July 23, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (1)

Spotlighting a remarkably thoughtful federal sentence in a remarkably challenging setting

Over at his blog Simple Justice, Scott H. Greenfield has this terrific new post spotlighting a terrific new sentencing opinion by US District Judge John Kane in US v. Jumaev, No. 12-cr-00033-JLK (D. Col. July 18, 2018) (available here). Because Scott's posting provide effective context and commentary concerning the case and sentencing, I will here just quote the first two paragraphs of Judge Kane's 44-page sentencing decision to clarify the core concern of the opinion:

After his co-defendant Jamshid Muhtorov informed him that the Islamic Jihad Union (IJU) was in need of financial support, Defendant Bakhtiyor Jumaev mailed Mr. Muhtorov $300. Mr. Jumaev wrote only a single check, and the funds never reached the IJU or any other foreign terrorist organization.  Mr. Jumaev had no specific plot or plan and did not intend to further any via his contribution. The idea to aid the terrorist organization was proposed and facilitated entirely by Mr. Muhtorov.  Indeed, Mr. Jumaev had no direct contact with the members of any terrorist organization.  And, significantly, he never committed any act of violence, nor did he advocate for any particular violent act.

Mr. Jumaev now comes before me for sentencing after having been found guilty by a jury of two counts in violation of 18 U.S.C. § 2339B, namely (1) conspiring and (2) attempting to provide material support in the form of $300 to the IJU, a designated foreign terrorist organization.  Although his actions certainly are sufficient for the jury to have found him guilty of these two very serious crimes, the above summary illustrates how his guilt rests on far less culpable conduct than that of all other defendants of which I have been made aware who have been convicted under the same statute.

At the risk of turning this matter into a parlor game, I wonder if readers might be inclined to share, before clicking through to the opinion, their predictions as to (a) the defendant's calculated guideline range, (b) the sentence was urged by federal prosecutors, and/or (c) the sentence imposed by Judge Kane.  Alternatively, I would also love to hear folks' opinions on just what kind of federal sentence someone should get for simply sending, upon request, a $300 check to support the Islamic Jihad Union.

July 23, 2018 in Booker in district courts, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

"Beyond Strict Scrutiny: Forbidden Purpose and the 'Civil Commitment' Power"

The title of this post is the title of this new paper that I just noticed on SSRN that was authored by Eric Janus. Here is the abstract:

Sex offender civil commitment (SOCC) is a massive deprivation of liberty as severe as penal incarceration.  Because it eschews most of the "great safeguards" constraining the criminal power, SOCC demands careful constitutional scrutiny.  Although the Supreme Court has clearly applied heightened scrutiny in judging civil commitment schemes, it has never actually specified where on the scrutiny spectrum its analysis falls.

This article argues that standard three-tier scrutiny analysis is not the most coherent way to understand the Supreme Court’s civil commitment jurisprudence.  Rather than a harm-balancing judgment typical of three-tier scrutiny, the Court’s civil commitment cases are best understood as forbidden purpose cases, a construct that is familiar in many areas of the Court’s constitutional analysis.  But the Court’s civil commitment cases tie the search for punitive purpose to another genre of constitutional analysis, the application of the substantive boundaries on governmental power most commonly associated with the specific grants of federal power.  In contrast to the normal conception of state power as plenary, limited only by the specific constraints of the bill or rights and the amorphous limits of "substantive due process," the Court has posited a narrowly limited "civil commitment" power. The search for the forbidden purpose maps directly onto the inquiry into the limits of this discrete and special state power.  Finally, the article argues that the forbidden purpose/discrete power analysis provides clarity on another vexing issue, the facial/as-applied distinction.

July 23, 2018 in Criminal Sentences Alternatives, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

July 22, 2018

More old-school, tough-on-crime talk and thinking from Attorney General Jeff Sessions

Attorney General Jeff Sessions delivered these remarks today at the 2018 Summer Conference for the Prosecuting Attorneys' Council of Georgia.  Much of what he said will sound familiar to those who have followed his public speeches, but today I was really struck by a certain logical disconnect in some of his standard rhetoric.  Here are excerpts, with bold added to highlight key passages for follow-up comments:

From the early 1990s until 2014, the crime rate steadily came down across the country.  But from 2014 to 2016, the trends reversed.  The violent crime rate went up by nearly seven percent. Robberies went up. Assaults went up nearly 10 percent.  Rape went up by nearly 11 percent. Murder shot up by more than 20 percent!...

We’ve got to get back on track. We must take these recent developments seriously and consider carefully what can be done about them.  Yielding to these trends is not an option for America and certainly not to us in law enforcement.  We have clear goals. From day one — I plainly stated our goal at DOJ — reduce crime, reduce homicides, reduce prescriptions, and reduce overdose deaths!...

We’ve got to be smart and fair about who we put behind bars and for how long.  This is not mindless “mass incarceration”.  But prison does play a role.  Two months ago, the Department of Justice’s Bureau of Justice Statistics released a report on the recidivism rate of inmates released from state prisons in 30 states.

This is the longest-term study that BJS has ever done on recidivism and perhaps the largest. It was designed and started by the previous administration.  The results are clear and very important — historic importance. The reality is confirms what experienced professionals like yourselves have seen.

The study found that 83 percent of 60,000 state prisoners released in 2005 were arrested again within nine years.  That’s five out of every six.

The study shows that two-thirds of those — a full 68 percent — were arrested within the first three years.  Almost half were arrested within a year — one year – of being released. The study estimates that the 400,000 state prisoners released in 2005 were arrested nearly 2 million times during the nine-year period — an average of five arrests each.

Virtually none of these released prisoners were arrested merely for probation or parole violations: 99 percent of those arrested during the 9-year follow-up period were arrested for something other than a probation or parole violation.

In many cases, former inmates were arrested for an offense at least as serious — if not more so — as the crime that got them in jail in the first place.  It will not surprise you that this is often true for drug offenders. Many have thought that most drug offenders are young experimenters or persons who just made a mistake.  But the study shows a deeper concern.

Seventy-seven percent of all released drug offenders were arrested for a non-drug crime within nine years.  Presumably, many were arrested for drug crimes also. Importantly, nearly half of those arrests were for a violent crime.  Sometimes arrests lead to treatment, drug courts — often the problem is more serious.

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

As any prosecutor in this room can tell you, when a criminal knows with certainty that he is facing real time, he is a lot more willing to confess and cooperate with prosecutors. On the other hand, when the sentence is uncertain and up to the whims of the judge, criminals are a lot more willing to take a chance.

Our goal as prosecutors is not to fill up the courts or fill up the prisons.  Our goal is not to manage crime or merely to punish crime.  Our goal is to reduce crime in America....

Law enforcement is crime prevention.  When we enforce our laws, we prevent new crimes from happening.  As prosecutors, we have a difficult job, but our efforts at the federal, state, and local levels have a real impact.  With every conviction we secure, we make our communities safer.

A blog post is an imperfect forum to work through all the particulars of AG Sessions' speech.  But his extended discussion of the BJS recidivism data (which concerns only state prisoners) suggests that modern prisons — at least in the late 1990s and early 2000s — functionally operated to make a lot of criminals worse, which in turn suggests that sending more people to prison would be a recipe for making ever more aggravated criminals.  Of course, this is what "professionals" generally know: time in prison tends to be criminogenic.  As Professor Mark Kleiman puts it, brute force often fails and we ought to seek to (and likely can) achieve less crime with less punishment.  

Put another way, the BJS recidivism data suggest we were doing something quite wrong with our prison policies even as crime was dropping from the early 1990s until 2014.  And yet the tenor of this speech, and what seems to be AG Sessions' general disaffinity for any federal criminal justice reforms, suggest AG Sessions is ever eager to embrace and champion all the policies and practices that contributed to modern mass incarceration despite evidence that those "old-school" policies and practices produce startling recidivism rates.

The significant crime spike that preceded AG Sessions coming in to office will seemingly always serves as a foundation and justification for him to promote and justify ever more federal prosecutors bringing ever more federal prosecutions.  But, as the title of this post hints, his old-school talk and thinking is tired and tiring, and likely disserves his presumably genuine commitment "to reduce crime in America."

July 22, 2018 in National and State Crime Data, Reentry and community supervision, Who Sentences | Permalink | Comments (22)

"Setting the Record Straight: The Pardon Power is Part of the Rule of Law"

The title of this post is the headline of this commentary at Just Security authored by Sam Morison, who worked for many years as a staff attorney in the Office of the Pardon Attorney.  I recommend the piece in full, and here are excerpts: 

Writing from the perspective of a former federal prosecutor, Barbara McQuade decried President Donald Trump’s most recent exercise of the pardon power, which supposedly poses a grave threat to “anyone who is committed to our legal institutions, particularly federal law enforcement.”  The remedy for such alleged abuse of discretion, she suggests, is to rely on the good judgment of the Office of the Pardon Attorney (OPA), the agency within the Justice Department that for many years has supervised the provision of advice to the president in clemency matters.  The default standard for making such decisions, she further suggests, is contained in the U.S. Attorney’s Manual, according to which a “petitioner should be genuinely desirous of forgiveness rather than vindication.”

This has now become a familiar refrain among the president’s critics.  But while reasonable minds might differ about the substantive merits of the president’s clemency decisions to date, McQuade’s critique exhibits both a remarkably impoverished view of the pardon power and an exaggerated confidence in the legitimacy of the extant advisory process....

[T]he president has both a right and a duty to exercise the pardon power because of his own constitutional concerns about a law or because of policy objections to enforcement of the law in a particular context.  This principle was established as early as 1804, when upon taking office President Thomas Jefferson pardoned those who had been convicted under the Alien and Sedition Acts, which he believed to be unconstitutional.  Similarly, President Woodrow Wilson granted dozens of pardons to persons convicted of liquor-related offenses under the Volstead Act, because of his constitutional objections to the law.

More recently, President Ronald Reagan granted pardon to former FBI agents Mark Felt and Edward Miller while their cases were still pending on appeal, on the grounds that they had not acted with criminal intent, but rather in a “good-faith belief that their actions were necessary to preserve the security interests of our country.”  President George H.W. Bush pardoned the so-called Iran-Contra defendants, after indictment but prior to trial, based on his conclusion that the independent counsel’s prosecution had constituted the “criminalization of policy differences.”  Prior to leaving office, President Clinton pardoned or commuted the sentences of numerous persons convicted in independent counsel investigations that had dogged his administration for basically the same reason.  And President George W. Bush commuted the prison sentence of Lewis Libby, his vice president’s former chief of staff, after his conviction was affirmed but before he reported to prison.  Bush reasoned that even if Libby had committed perjury in the context of a highly politicized grand jury investigation, a prison sentence would be excessively harsh punishment.

Granted over a period of more than 200 years, the common thread that ties these disparate acts of executive clemency together is the intersection of law and politics.  In each case, the president made the judgment that partisan considerations had improperly influenced either the legislative or the judicial process, thereby undermining the moral legitimacy of strictly enforcing the letter of the law.

When the president exercises the pardon power for this reason, it is not an idiosyncratic exception to the normal operation of the federal criminal justice system.  To the contrary, it is an integral part of the system of checks and balances embedded in the Constitution.  As Justice Oliver Wendell Holmes wrote for a unanimous Court, a pardon “is not a private act of grace from an individual happening to possess power. It is a part of the Constitutional scheme. When granted it is the determination of the ultimate [executive] authority that the public welfare will be better served by inflicting less than what the judgment fixed.”  In this context, then, a pardon is a public act of grace, taken by the president in his official capacity as the chief executive, to preserve the integrity of the federal criminal justice system.

The only remaining question is who should exercise effective control over this broad discretionary power, a democratically elected president or a small cadre of anonymous bureaucrats in the Office of the Pardon Attorney (OPA)?  Having served as a staff attorney in OPA for more than a decade, I can say with some confidence that the office does not view its role as a neutral arbiter.  Instead, OPA’s institutional function is to protect the Justice Department’s prosecutorial prerogatives by churning out a steady stream of almost uniformly negative advice, regardless of the merits of any particular case.  This is problematic because in the normal course, the only information the president receives about a case is whatever the Justice Department chooses to tell him.  And in my entire tenure at OPA, I am not aware of a single instance in which a federal prosecutor acknowledged that one of her cases might have been affected by “undue harshness or evident mistake.”

There is no reason to believe that this situation has fundamentally changed, given the Justice Department’s inherent conflict of interest in each of these cases. In effect, the Justice Department’s advisory record amounts to the assertion that the federal criminal justice system is essentially perfect — injustices never occur, sentences are never excessive, circumstances never change, and mercy is never appropriate.  No disinterested person really believes this. Accordingly, if Trump insists in going it alone, as McQuade complains, the Justice Department has no one but itself to blame.

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

July 22, 2018 in Clemency and Pardons, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Noting new challenges in securing death sentences now that juror unanimity is required in Florida

This extended local article, headlined "South Florida killers avoiding death row under new law," spotlights the new capital realities in Florida now that the state was forced by new constitutional rulings to require unanimous jury verdicts to secure death sentences. Here are excerpts:

South Florida juries appear to be less likely, so far, to send convicted killers to death row under the state’s newest death penalty law.  Two juries in Broward County decided to spare the lives of convicted killers in the past week in cases where capital punishment would have seemed likely just a few years ago.

On July 16, convicted cop killers Bernard Forbes, Eloyn Ingraham and Andre Delancy learned they would not face execution for the 2006 ambush murder of Broward Sheriff’s Deputy Brian Tephford.  And on July 19, Eric Montgomery’s life was spared by the same jury that convicted him of fatally shooting his stepdaughter in the face, chasing down her terrified mother and shooting her to death while his own grandmother physically tried to stop him, taking a bullet in the process.

In three first-degree murder trials in Palm Beach County since September, juries have recommended life sentences for the men they convicted. The challenge appears to be the stringent requirement of the death penalty law passed in the spring of 2017.  The state now requires juries to unanimously find at least one aggravating factor justifying the imposition of the death penalty, and a second unanimous vote recommending it....

Simple majorities were required before 2016, but a combination of federal and state supreme court decisions found that without a unanimous verdict, Florida’s death penalty process was unconstitutional.

Since the newest law was enacted, Broward juries have rejected the death penalty in three of four cases. In each of those cases, the defense put up a fight, calling witnesses and urging jurors to show mercy.  The unanimous death decision came against Peter Avsenew, convicted of killing a Wilton Manors couple near Christmas 2010, using their credit cards, stealing their car and trying to hide out at his mother’s house in Polk County.  After his conviction, Avsenew fired his defense lawyers and represented himself in front of the jury, making no effort to plead for his life or show a hint of remorse. “I have no regrets in my life and I am proud of the decisions I’ve made,” he said.

Defense lawyers and prosecutors agree that it’s too soon to determine whether the new law will result in a long term reduction in the number of capital sentences. According to the state corrections department, Florida sent 12 inmates to death row in 2014 and 2015.  From 2017 to 2018 so far, four have been condemned: one each from Collier, Polk, Duval and St. John’s County. But in Palm Beach, prosecutors have not gotten a death penalty since 1998, even under the old law....

“Whenever you have 12 people in a room, it’s hard to get them to agree on anything,” said former Broward prosecutor Marjorie Sommer, now a jury consultant with Focus Consulting Services.

Potential jurors in death penalty cases are typically removed if they have philosophical objections to capital punishment.  But sometimes they slip through. Last year, a Broward jury convicted Jacqueline Luongo of killing her roommate for insurance money, stuffing her body in a closet for days while disguising herself as her victim to make bank withdrawals.

When it came time to deliberate over the penalty, juror Sarah Miller said she was stunned to learn that a fellow panelist had no intention of even considering death.  “She faked her way onto the jury,” said Miller. “It was so unfair to the victim’s family. It didn’t sit well with me. We didn’t do justice.”  The vote, Miller said, was 11-1.  Luongo was sentenced to life in prison.

The outcome of that case has Miller worried that securing a death penalty in Broward will be impossible under the new law. Miller lives in Parkland and is a 2012 graduate of Marjory Stoneman Douglas High School, scene of last February’s mass shooting.  She worries that if the shooter is convicted, he will escape the death penalty because of the new law.  “It’s very scary to me to think that ... another dishonest juror pretends to be open minded about it,” she said.

July 22, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (2)

"Can a criminal be sentenced to run a 'help desk'?"

The question in the title of this post is the first line of this New York Times article about a high-profile upcoming federal (re)sentencing.  The piece is headlined "What Sentence Should Sheldon Silver Get? His Lawyers Get Creative," and here are excerpts:

Sheldon Silver, the former powerful speaker of the New York State Assembly who was convicted of public corruption charges in May, hopes [he can be sentenced to help-desk duty].

Mr. Silver, 74, is to be sentenced on July 27 in Manhattan, and federal prosecutors asked the judge on Friday to impose a sentence “substantially in excess” of 10 years. But Mr. Silver’s lawyers had a more creative proposal for how he could pay his debt to society.

After a “meaningful custodial sentence,” they suggested, he should be ordered to perform “rigorous” community service, like running a special help desk. In that role, they said, he would be helping New Yorkers “navigate their way through the state bureaucracy to answer their questions, and maximize their chances of receiving benefits to which they may be entitled.” He would be expressing his remorse, they said, and using “his unique skills to assist his fellow New Yorkers.”...

Evidence at the trial showed Mr. Silver obtained nearly $4 million in illicit payments in exchange for taking actions that helped a prominent cancer researcher at Columbia University and two real estate developers.... Mr. Silver, a Democrat, was originally convicted in 2015 and sentenced to 12 years by the judge, Valerie E. Caproni of Federal District Court. After his conviction was overturned on appeal, he was retried this year and found guilty.

“Mr. Silver is a broken man,” his lawyers wrote. “He has been humiliated and disgraced. Most of his assets are gone, either to forfeiture or fine.” But he “is also an intelligent man, with virtually unparalleled knowledge of New York State government,” they noted. Their proposal would allow the judge to exercise discretion “in a way that punishes Mr. Silver, but takes advantage of his unique talents and still affords the possibility of his living the end of his life in freedom.”

To provide a direct answer to the question in the title of this post, I would look to 18 U.S.C. § 3563(b)(12) which states that the court may provide that the defendant work "in community service as directed by the court” as a condition of supervised release. In other words, I think a federal defendant can be sentenced by a federal judge to run a help desk as a form of community service during a period of supervised release. Whether a federal judge will be inclined to do so for Sheldon Silver is another question.

Prior related posts prior to Sheldon Silver's initial sentencing:

July 22, 2018 in Criminal Sentences Alternatives, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences | Permalink | Comments (3)