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August 4, 2018

Encouraging news from DC about prospects for prison reform with sentencing reform getting enacted in 2018

Though I am a very long way from DC right now (much closer to Russia, in fact, somewhere on this route), I had to find a way on-line to be sure to note the exciting federal criminal justice reform news reported here in The Hill under the headline "Trump gives thumbs up to prison sentencing reform bill at pivotal meeting."  Here are the details:

President Trump has told Republican senators that he’s open to a new proposal on prison and sentencing reform, giving new life to an issue that seemed hopelessly stalled on Capitol Hill.

The compromise presented to Trump by Republican senators at a White House meeting on Wednesday would combine the prison reform bill passed by the House in May — the First Step Act — with four sentencing reform provisions that have bipartisan Senate backing, according to a source familiar with the meeting.

A senior White House official described the president as “positively inclined” toward the compromise proposal. The source said Trump told GOP senators to “do some work with your colleagues” and “let's see where the Senate is and then come back to me with it.”...

The compromise offer was presented to Trump at a meeting with Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) and Sens. Mike Lee (R-Utah), Lindsey Graham (R-S.C.) and Tim Scott (R-S.C.). Jared Kushner, a senior White House adviser and Trump’s son-in-law; Shahira Knight, the new White House legislative affairs director; and White House chief of staff John Kelly also attended the White House meeting.

Attendees described Trump’s support for the initiative as a positive development for the effort to reduce mandatory-minimum prison sentences for nonviolent drug offenders. While getting a final bill to Trump would require a Senate vote and then winning House approval for the new package, a second source familiar with the meeting described it as “very successful.” “It’s not done until it’s done, but we made a lot of progress,” the source said.

Grassley said afterward that he believes prison reform and sentencing reform can be moved in tandem. “I think we made great progress so it doesn’t have to be broken up,” Grassley told reporters Thursday. “There seems to be an interest on the part of the White House now to keeping the bills together.”

Negotiators now think there’s a possibility of moving legislation through the Senate as soon as this month, though it’s more likely to wait until the lame-duck session after the midterm elections....

The emergent compromise proposal would make several technical changes to the House-passed First Step Act and merge it with four sentencing reforms from the Senate’s Sentencing Reform and Corrections Act, which has a large number of co-sponsors from both parties.

“The question is how little sentencing reform we can put in there without losing the Democrats and how much we can put in there without losing more than a handful of Republicans, and we think we’ve about cracked that formula,” said a person familiar with the internal talks who briefed The Hill.

The proposed compromise would lower lifetime mandatory minimum sentences for people with prior nonviolent drug felony convictions to 25 years and reduce 20-year mandatory minimum sentences for similar offenders to 15 years. But in an effort to reach common ground, that reform would only apply to new sentences and not to people already in jail.

Another reform would free judges from having to ratchet up sentences for drug offenders convicted on simultaneous charges. A requirement known as the “stacking enhancement” forced judges to treat convictions on multiple charges as prior offenses and mandated harshly long punishments for nonviolent drug offenders. In another bid to broaden political support, this reform would not apply retroactively.

A third reform would apply the Fair Sentencing Act, which Congress passed in 2010 and reduced the disparity between cocaine- and crack-related offenses, retroactively. That law reduced the disparity between cocaine- and crack-related crimes prospectively but only applied to new sentences. The reform now being discussed would retroactively reduce the disparity of old sentences.

The final reform would expand exceptions to the application of mandatory-minimum sentences to more people with criminal histories.

I am not counting any sentencing reform chickens before they hatch, but this description of the compromise combo FIRST STEP Act and SRCA would seem to make a lot of sense in light of various positions staked out on both sides of the aisle. And if Prez Trump signals support for such a reform package and is willing to make it a priority, I would now be inclined to predict this will get done this year. But because Prez Trump has never seemed a serious advocate for sentencing reform, and because his Attorney General likely dislikes all of this, and because the run-up and aftermath of an election can disrupt lots in DC, I am inclined to remain pessimistic about all of this until votes are being scheduled and taken.

August 4, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Who Sentences | Permalink | Comments (2)

The War on Kids Post #2

In my last post, I addressed the irony of America inventing the juvenile court and then both exporting that concept to the world and abandoning it domestically. Today I want to unpack the realities of my claim that there has been a war on kids since the late 20th century. Let me acknowledge that, to some readers, the concept of a war on kids in America today may sound misguided or dramatic. After all, educators complain of helicopter parents and so-called free-range parents may face prosecution for granting their children liberties that were commonplace in my childhood. However, even as some children in America are more coddled and protected than ever before, I stand by my claim that the U.S. has waged a war on kids.

This is what the war on kids looks like. On any given day, there are approximately 50,000 juveniles being held in American correctional facilities, thousands of whom are in adult jails and prisons. While some hold themselves out as camps, academies or training facilities, these are correctional institutions; 89% of them are locked and many employ handcuffs, leg cuffs and restraining chairs, as well as solitary confinement. At the same time, we are not reserving detention for the most serious juvenile offenders. Nearly a quarter of youth in juvenile facilities have only been charged with a technical probation violation or a status offense. Schools, with police officers in the halls and zero-tolerance policies on the books, have become a gateway to the criminal justice system. In at least 22 states it’s a crime to disrupt school in ways that may have earned a student a trip to the principal’s office a few decades ago. Preschoolers, yes, preschoolers, can face suspension and expulsion for age-appropriate behaviors. This is deeply problematic, as suspensions, especially repeated ones, increase a student’s risk of dropping out of school and coming into contact with the criminal justice system.

Moreover, as I mentioned in my first post this week, our laws have cemented the notion that kids, once accused of a crime, may be treated as adults. Prosecutors routinely remove kids from juvenile court and charge them in adult court on the basis of the legal fiction of transfer laws. Youth in adult court are subject to mandatory sentences that today many of us would agree are too harsh even as applied to adults. Juveniles can be housed in adult correctional facilities, despite being the most vulnerable to physical and sexual assault in those locations. Until 2005 we were the only nation to execute people for juvenile offenses, and today we are the only developed nation in the world that still sentences children to die in prison.

Perhaps most discouraging, the war on kids has taken its greatest toll on the nation’s most vulnerable kids – those in poor, minority areas that are under-resourced and heavily policed. Black youth are more than twice as likely as white youth to be arrested, and, even as overall youth detention rates continue to decline, black youth are five times as likely as white youth to be detained. Similarly, poverty shunts children into the criminal justice system who would never be there if they had the financial resources to pay for private counsel, a diversion program, or even an ankle bracelet. Finally, when one looks at youth serving the most extreme sentence on the books, life without parole, approximately half were physically abused and nearly 80 percent witnessed violence in the home. Thus, like most wars, the war on kids has had its greatest impact on poor, minority and otherwise vulnerable communities.

In my next post, I’ll address recent Supreme Court decisions regarding juvenile sentencing and their implementation at the state level.

August 4, 2018 in Guest blogging by Professor Cara Drinan, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (8)

August 3, 2018

VA Asks Supreme Court for Delay in Resentencing Malvo

As reported in this Washington Post piece, Virginia is asking the Supreme Court to delay the resentencing of convicted Beltway sniper, Lee Boyd Malvo. Here is more:

Virginia on Thursday asked the Supreme Court to put on hold a lower court’s decision that requires new sentences for Beltway sniper Lee Boyd Malvo, who was confined to life imprisonment for his deadly teenage rampage.

The commonwealth said it wants the high court to overturn a decision by a panel of the U.S. Court of Appeals for the 4th Circuit in Richmond. But in the meantime, it asked the court to simply delay any resentencing process.

“This case involves one of the most notorious serial murderers in recent history,” Virginia Solicitor General Toby J. Heytens wrote in a petition to Chief Justice John G. Roberts Jr., who hears emergency applications resulting from 4th Circuit decisions.

“The issue presented by this stay application is whether Virginia will be required to commence (and potentially conclude) the process of resentencing Malvo — risking additional trauma to his numerous victims and their families and exposing the Commonwealth to significant cost — before” the Supreme Court can decide whether the 4th Circuit got it right.

August 3, 2018 in Assessing Miller and its aftermath, Guest blogging by Professor Cara Drinan, Jackson and Miller Eighth Amendment cases, Sentences Reconsidered | Permalink | Comments (3)

The War on Kids Post #1

Greetings, fellow SL&P readers and Doug Berman fans! I’m Cara Drinan, and I’d like to thank Doug for generously offering me the opportunity to guest blog while he’s away on vacation. For the most part, I will blog about my recent book, The War on Kids: How American Juvenile Justice Lost Its Way (Oxford University Press 2017, available here), but if time permits, I’ll also post about current events.

I look forward to sharing my research over the coming days and hearing your thoughts and comments. The War on Kids begins by addressing the arc of American juvenile justice. Despite inventing the juvenile court a little more than a century ago, the United States has become an international outlier in the severity of its juvenile justice practices. The War on Kids explains that trajectory as a sub-plot to the story of mass incarceration, and then exposes the machinery of juvenile justice: how certain kids are more likely than others to end up in the system and what that bleak experience looks like for a juvenile inside the system. The latter half of the book turns to examining prospects for reform on the horizon. Recent Supreme Court juvenile sentencing decisions and related state legislative responses provide grounds for optimism, and yet implementation efforts to date have been slow and bumpy. Finally, the book concludes that we must launch a war for kids and outlines policy measures that such a war must entail: the elimination of extreme juvenile sentences, the abolition of mandatory minimums for kids, and a shift away from juvenile incarceration altogether.

Obviously, I can’t cover the whole book in a few blog posts, and I hope you’ll read it in full, but in the coming days I will address a few questions addressed within the book:

Today, I’ll tackle the first question – the question of how the United States became the extreme outlier that it is today in terms of juvenile justice. The U.S. invented the juvenile court model in Illinois in 1899. This early juvenile court wasn’t perfect by any stretch, but it was based on a shared recognition that a child who broke the law was typically in need of social services rather than punishment. In contrast to adult courts, juvenile courts shared several defining features: relative informality, broad judicial discretion, and a guiding ethic of juvenile vulnerability and rehabilitation. Over the course of the twentieth century, every state in the nation adopted the juvenile court model, as did developed nations around the globe.

Fast-forward 100 years, and by the end of the twentieth century, the U.S. had become known for its punitive “adult crime, adult time” approach to juveniles. Perhaps most notable to the international community, until 2005 the United States was the only nation to execute people for juvenile offenses, and today we are the only developed nation in the world that still sentences children to die in prison. In order to understand how this happened – and how it happened fairly quickly – it helps to think of the war on kids as a subplot to the story of mass incarceration.

As Doug’s regular readers well know, the American correctional population exploded in the late 20th century. In the 1970’s there were approximately 300,000 people in American jails and prisons, and today we have more than two million adults and children behind bars. While the story of mass incarceration is complex, there is no disputing that, with crime on the rise beginning in the 1960’s and into the 1990’s, politicians on both sides of the aisle embraced tough on crime positions. They enacted more criminal laws and enhanced penalties for criminal violations. As we sent more and more people to prison for increasingly long periods of time, our correctional population ballooned.

Juveniles suffered from this trend toward mass incarceration in two particular ways. First, politicians enacted laws that enabled prosecutors and judges to treat children as if they were adults. This was a massive shift. For most of the twentieth century a child accused of a crime was dealt with in juvenile court. However, as part of the get-tough policies of the 1980’s and 1990’s, lawmakers passed transfer laws (of several varieties) that made it increasingly easy and common for kids charged with a crime to be prosecuted in adult court. Today, every jurisdiction has at least one provision (and most have several) that permits a juvenile to be transferred to adult court often without judicial oversight. Twenty-three states set no minimum age for that transfer.

Second, around the same time, federal and state lawmakers introduced determinate sentencing schemes, including mandatory minimums that have been the source of extensive discussion here on this blog. It’s possible lawmakers were not considering these two policy shifts and their interaction, but these two developments were the perfect storm for juveniles. By the end of the twentieth century, transfer laws made it increasingly easy for kids to land in adult court, and once there, they were exposed to mandatory minimums that had been drafted with adults in mind. Two states supreme courts have recognized the absurdity of this in practice (Washington and Iowa, discussed here) and have barred mandatory minimums as they apply to youth, but the practice remains common.

That’s it for today. In my next post, I’ll explore what the war on kids actually looks like in practice.

August 3, 2018 in Guest blogging by Professor Cara Drinan | Permalink | Comments (18)

Professor Cara Drinan guest-blogging on "The War on Kids"

9780190605551I am heading out today on a family trip that will take me off-line (and thus not blogging) for much of the next week.  I am very pleased to be able to welcome Professor Cara Drinan as a guest-blogger to discuss her book, titled "The War on Kids: How American Juvenile Justice Lost Its Way," which was just published by Oxford University Press and is available here.  I am so very grateful Cara was interesting in doing some blogging while I am away. 

Here is a part of the publisher's description of Cara's book:

In The War on Kids, Cara Drinan reveals how the United States went from being a pioneer to an international pariah in its juvenile sentencing practices.  Academics and journalists have long recognized the failings of juvenile justice practices in this country and have called for change. Despite the uncertain political climate, there is hope that recent Supreme Court decisions may finally make those calls a reality. The War on Kids seizes upon this moment of judicial and political recognition that children are different in the eyes of the law.  Drinan chronicles the shortcomings of juvenile justice by drawing upon social science, legal decisions, and first-hand correspondence with Terrence [Graham] and others like him -- individuals whose adolescent errors have cost them their lives.  At the same time, The War on Kids maps out concrete steps that states can take to correct the course of American juvenile justice.

I believe Cara may be covering ground in this blog space that goes beyond what appears in her book, and I am very happy to share this space and am excited to see what Cara wants to say here.  (I hope and expect to do still do a little blogging while on the road over the next week, but I certainly will not be able to keep up my usual pace.)

August 3, 2018 in Guest blogging by Professor Cara Drinan, On blogging | Permalink | Comments (0)

Interesting new data suggesting important recent recidivism reduction

Changing-State-of-Recideivism_chart_650px_v1The folks at Pew have this interesting and important new data analysis under the title "The Changing State of Recidivism: Fewer People Going Back to Prison: Data show the number returning 3 years later is down by nearly a quarter." Here is the heart of the data:

The share of people who return to state prison three years after being released — the most common measure of recidivism — dropped by nearly a quarter over a recent seven-year period, according to an analysis by The Pew Charitable Trusts of federal Bureau of Justice Statistics (BJS) data on prisoners released in 2005 and 2012.

Pew analyzed publicly accessible data from the 23 states that reported reliable prison admissions and release data to BJS from 2005 through 2015.  Among prisoners released in 2005, 48 percent returned to prison by the end of 2008. By comparison, among those released in those states in 2012, 37 percent had at least one new prison admission by the end of 2015.  That translates into a drop of 23 percent. The states included in the analysis accounted for about two-thirds of those released from state prisons nationwide each year.

Longer-term recidivism also fell.  Prisoners released in these states in 2010 were 13 percent less likely than the 2005 cohort to return to prison at least once by the end of the fifth year after release.  Included in these numbers are people sent back to prison for a new crime or for violating the terms of their post-prison supervision....

Pew undertook this research to compile and make public the most current multistate data on recidivism trends. The BJS national report on state prison recidivism released in May 2018 presents nine years of data on people released from 30 states in 2005, but it includes no information on prisoners released since then.

To obtain more recent data, Pew researchers used publicly available administrative numbers that BJS collected from states for the National Corrections Reporting Program.  State prisoners are assigned unique identifiers, enabling researchers to track when they are released and whether they return to prison — except in cases in which a prisoner is released in one state and readmitted to prison in another.  Pew analyzed data from the 23 states that consistently reported prison admissions and releases every year from 2005 to 2015.  The cohorts ranged from 392,000 to 458,000 released prisoners....

Reducing recidivism improves public safety, reduces taxpayer spending on prisons, and helps formerly incarcerated people successfully resume family and community responsibilities.  But a lack of data has complicated efforts to understand the aggregate effects of myriad federal, state, and local efforts to reduce reoffending. This analysis shows that meaningful improvements in recidivism are occurring.

August 3, 2018 in National and State Crime Data, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

August 2, 2018

"Capitalizing on Mass Incarceration: U.S. Growth in Private Prisons"

The title of this post is the title of this new report from The Sentencing Project. Here is part of its "Overview" and "Key Findings":

From 2000 to 2016 the number of people housed in private prisons increased five times faster than the total prison population. Over a similar timeframe, the proportion of people detained in private immigration facilities increased by 442 percent.

The federal government and 27 states utilized private prisons operated by for-profit and non-profit entities during 2016. New Mexico and Montana led the nation in their reliance on private prisons with 43 percent and 39 percent of their prison populations, respectively, housed within them (See Table 2).  Between 2000 and 2016, eight states – Arkansas, Kentucky, Maine, Michigan, Nevada, North Dakota, Utah and Wisconsin -- eliminated their use of private prisons due to concerns about safety and cost cutting.  In 2016, Louisiana changed the classification of its contracted beds and reported its private prison population as zero for the first time during this period.  Alternatively, five states -- Alabama, Connecticut, Pennsylvania, South Carolina and Vermont -- began contracting with private prisons between 2000 and 2016.

The federal government is the single largest user of private prisons in the United States but has reduced its population in private prisons in recent years.  However, in 2017 Attorney General Jeff Sessions withdrew an Obama-era directive to phase out private prison contracting because of concern for the federal correctional system’s ability “to meet future needs.”

This report provides a portrait of private prisons as a component of the American corrections landscape and assesses its impact on mass incarceration.  Among its most striking features is the broad variation found across jurisdictions in reliance on private prisons.  As outlined in the state case studies examining the history of prison privatization in Florida, New Mexico, New York, North Carolina and Texas (available in the appendix), those corrections systems most committed to the industry have faced controversy, including riots, deaths, and allegations of improper financial influence from for-profit prison companies....

KEY FINDINGS:

• Of the total U.S. prison population, one in 12 people (128,063) was incarcerated in private prisons in 2016; an increase of 47 percent since 2000.

• 26,249 people were also confined in privately-run immigration detention facilities in fiscal year 2017; a 442 percent increase since 2002.

• Federal prisons incarcerated the largest number of people in private prisons, 34,159, marking a 120 percent increase since 2000.

• The largest private prison corporations, Core Civic and GEO Group, collectively manage over half of the private prison contracts in the United States with combined revenues of $3.5 billion as of 2015.

• Companies often trim prison budgets by employing mostly non-union and lowskilled workers at lower salaries and offer limited benefits compared to staff at publicly run institutions.

• Cost savings claims associated with prison privatization are unfounded according to decades of research.

August 2, 2018 in Data on sentencing, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Pope Francis official changes Catholic teachings on death penalty to work for abolition worldwide

As reported in this CNN piece, "Pope Francis has declared that the death penalty is never admissible and that the Catholic Church will work towards its abolition around the world, the Vatican formally announced Thursday." Here is more:

The change, which has been added to the Catechism of the Catholic Church, makes official a position that the Pope has articulated since he became pontiff.  The Church now teaches that "the death penalty is inadmissible because it is an attack on the inviolability and dignity of the person" and states that it will "work with determination towards its abolition worldwide," the Vatican said.

The Catholic Church's teaching on the death penalty has been slowly evolving since the time of Pope John Paul II, who served from 1978 to 2005.  In his Christmas message in 1998, he wished "the world the consensus concerning the need for urgent and adequate measures ... to end the death penalty." His successor Benedict XVI, in a document published in November 2011, called on society's leaders "to make every effort to eliminate the death penalty."

Francis then wrote in a letter to the President of the International Commission Against the Death Penalty in March 2015 that "today capital punishment is unacceptable, however serious the condemned's crime may have been."  He added that the death penalty "entails cruel, inhumane and degrading treatment" and said it was to be rejected "due to the defective selectivity of the criminal justice system and in the face of the possibility of judicial error."

August 2, 2018 in Death Penalty Reforms, Religion, Who Sentences | Permalink | Comments (8)

"The Digital Wilderness: A Decade of Exile & the False Hopes of Lester Packingham"

The title of this post is the title of this notable new paper authored by Guy Padraic Hamilton-Smith now available via SSRN. Here is its abstract:

The United States Supreme Court’s decision in Packingham v. North Carolina announced that people who have been convicted of sex offenses have a First Amendment right to access social media platforms.  In reaching its conclusion, the Court reasoned that the public square — and the communicative activity that the First Amendment protects — now exists on these platforms “in particular.”

Despite Packingham’s promise of free speech for arguably the most despised, feared, and misunderstood group of people in America, it did not directly address ways in which both the state and private actors keep Packingham’s beneficiaries in digital darkness.  As the rolls of America’s sex offense registries swell to near one million people in 2018, sustained exclusion from platforms that society increasingly relies on for civic engagement functionally cripples the ability of an enormous population of people to reintegrate, participate, and effectively challenge laws and policies that target them long after they have exited the criminal justice system.  Far from being dangerous or illicit, the voices of people directly impacted are necessary to properly balance a system which has all but foreclosed redemption, and thus their inclusion gives life not only to the values at the heart of Packingham, but to our conception of justice as well.

August 2, 2018 in Collateral consequences, Criminal Sentences Alternatives, Sex Offender Sentencing, Technocorrections, Who Sentences | Permalink | Comments (2)

Senators Orrin Hatch and Tom Cotton proposing Johnson fix to expand reach of Armed Career Criminal Act

As detailed in this press release, "Senators Orrin Hatch (R-UT) and Tom Cotton (R-AR) introduced The Restoring the Armed Career Criminal Act of 2018, legislation that will protect Americans from the most violent, repeat offenders." Here is part of the release:

“True criminal justice reform includes giving prosecutors the tools they need to seek enhanced penalties against the worst repeat offenders, said Hatch. “Prosecutors lost one of those tools three years ago when the Supreme Court ruled that a provision of the Armed Career Criminal Act was unconstitutionally vague. Criminals released early from prison as a result of that decision have gone on to commit heinous crimes, including the murder of three innocent Utahns. Our bill will bring much-needed clarity to the law while empowering prosecutors to pursue justice.”...

The National Association of Police Organizations offered their full support for this bill. In addition, the National Sheriffs’ Association has written a letter of support with over 3,000 elected sheriffs nationwide. Click here to read the full letter....

Originally passed by a unanimous vote in the House and Senate in 1984, the Armed Career Criminal Act requires a minimum 15-year prison sentence for felons convicted of unlawful possession of a firearm who have three prior state or federal convictions for violent felonies or serious drug offenses, which must have been committed on three different occasions. These are the worst-of-the worst, career criminals.

The ACCA defines serious drug offenses as those punishable by imprisonment for 10 years or more. It defines violent felonies [in three ways, one of which was declared by the Supreme Court in Johnson] unconstitutionally vague and thus effectively void....

The Restoring the Armed Career Criminal Act of 2018 would do away with the concepts of “violent felony” and “serious drug offense” and replace them with a single category of “serious felony.” A serious felony would be any crime punishable by 10 years or more. By defining “serious felony” solely based on the potential term of imprisonment, the bill would address the vagueness issue and remove any discretion or doubt about which offenses qualify.

The bill would give federal prosecutors an additional tool to go after the most dangerous, career criminals and would not apply to low-level offenders. Specifically, the ACCA would still apply only in a case where a felon who possesses a firearm in violation of 18 U.S.C. § 922(g) has previously been convicted three times of serious felonies, which must have been committed on different occasions.

I noted in this post that the Armed Career Criminal Act is long overdue for a fix, but the solution presented here strikes me as problematic because it expands the reach of a severe mandatory minimum and still has ACCA's reach turn on prior offense definitions. Statutory mandatory minimums are always clunky, and all that may be needed to effectively achieve ACCA's goals would be to raise the applicable maximum terms for illegal gun possession by those with three or more felony convictions.  Judges could and would then use the US Sentencing Commission's guidelines, rather than the fortuity of some prior offense definitions, to determine who are truly the 'worst-of-the worst, career criminals" that should be imprisoned for decades.

Prior related post:

"Attorney General Sessions Delivers Remarks Calling for a Legislative Fix to the Armed Career Criminal Act" 

August 2, 2018 in Mandatory minimum sentencing statutes, Offender Characteristics, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (4)

August 1, 2018

Prez Trump says he thinks "we’ll be able to" get the FIRST STEP Act passed into law

President Donald Trump had a White House meeting with inner-city pastors today, and the even made headlined because on pastor said, as reported here, that Prez Trump may go down as the "most pro-black president" in recent history. Rather than engage with that comment, I am eager to note some of Prez Trump's comments about prison reform at the event. This link provides a transcript, and here are statements by Prez Trump that caught my eye:

Our focus on opportunity for every citizen includes helping former prisoners.  These citizens reentering society have had a tough time.  We want them to get jobs so they don’t have to return to a life of crime and go back into the same prison where they just got out....

We passed the First Step Act through the House, and we’re working with the Senate to pass that into law.  And I think we’ll be able to do it. When we say “hire American,” we mean all Americans — every American, everybody.

And, you know, it’s something that should have been done a long time ago — prison reform....  But a lot of people are saying, “You mean it’s the Trump administration that’s doing this?”  You understand.  They don’t believe it.  But we’re really making a tremendous amount of progress, and it’s a beautiful thing to watch.

I am not prepared to praise the Trump Administration for "making a tremendous amount of progress" unless and until I see laws enacted and real reforms implemented. But as Prez Trump continues to talk the talk on prison reform, I want to remain hopeful that real action will follow.

August 1, 2018 in Criminal Sentences Alternatives, Prisons and prisoners, Who Sentences | Permalink | Comments (1)

"Attorney General Sessions Delivers Remarks Calling for a Legislative Fix to the Armed Career Criminal Act"

The title of this post is the headline of this press release from the US Department of Justice today, and here are some of the comments that follow that focus on ACCA:

[B]ecause of a 2015 Supreme Court decision holding that the definition of violent felony was too vague — we are missing one of the most important law enforcement tools we had. The Johnson case is quite significant.

Regardless of the merits of the Court’s decision, the consequences have been devastating for Americans across the country.

This court decision led to the release of a man from right here in Little Rock. Eight months after he was released from prison, he was arrested for aggravated assault and domestic battery. A year after that he was arrested for kidnapping, rape, aggravated assault, battery, and terroristic threats. He is accused of raping a 62-year old woman and an autistic homeless man.

This court ruling also led to the release of a man who allegedly punched a pregnant woman at a nightclub in Forrest City. When police intervened, he allegedly assaulted three of them, cutting one of them on the forehead.

A man from Pine Bluff got his 15 year sentence cut in half. A year later, he got into an argument with a co-worker. According to the allegations against him, the co-worker turned around to walk away when the defendant sucker-punched him, broke his nose and eye sockets, chipped a tooth and busted his lip.

Two of these criminals I’ve talked about are now back in prison. They were let out of prison, reoffended, and now they’re back in prison.

But the consequences are not limited to Arkansas. This is a nationwide problem and it’s a cause for deep concern. In Utah, a career criminal released by this decision tortured and murdered two teenagers and then threw their bodies down a mineshaft. A released career criminal in California allegedly murdered his father, carjacked a vehicle and killed the driver. In Oregon, a released career criminal held a Subway sandwich shop hostage and then shot a police officer just 18 days after he was released.

Sadly, I could go on and on. So why did this happen? The Supreme Court struck down part of a law called the Armed Career Criminal Act. It had been on the books for 30 years and applied thousands of times.

This is the law that requires a minimum 15- year sentence for felons caught with a firearm after their third violent felony or serious drug trafficking conviction.

These are not the mythical “low-level, nonviolent drug offenders,” who we are always told are being excessively imprisoned. These are criminals who have already committed multiple serious offenses and then were caught with a gun.

This is no little matter. In 2016, the U.S. Sentencing Commission found that nearly seven out of ten career criminals reoffended after being released. Federal firearms offenders were found to be the most likely to be rearrested of any category. These criminals are both. They are career criminals and firearms offenders. I was a United States Attorney before the Armed Career Criminal Act — and I was United States Attorney afterward. I’ve seen its importance firsthand as we worked to reduce crime in America.

Nationwide, the Supreme Court’s decision has resulted in more than 1,400 violent career criminals back onto our streets — including 18 here in Arkansas. Nine of these Arkansas criminals have already been arrested again.

Six-hundred of those 1,400 criminals have been arrested again. It’s only been three years since the Court decision, but 42 percent have already reoffended.

On average, these 600 criminals have been arrested or reoffended three times in the last three years. A majority of those who have been out of prison for just two years have been arrested again. Releasing repeat offenders has consequences. Every crime committed by a recidivist released by this court case would not have happened. Every one of their victims would not have been victimized.

We must fix the law so violent career criminals are not let out of jail early. Their recidivism rate is staggering indeed, but let’s remember: this is still likely an underrepresentation of their illegal activity. Any law officer in this room will tell you that criminals rarely get caught on their first offense. We can only imagine how many crimes they have really committed and how many innocent people they have victimized.

Releasing hardened criminals into our communities before they serve their minimum term is not fair to crime victims. And it is not fair to law enforcement. You shouldn’t have to go into danger time and again to arrest the same people.

Congress and our legislatures need to help us and consider legislation that protects the public. We need Congress to fix the law so that we can keep violent career criminals off of our streets. That shouldn’t be controversial.

Fortunately, some Members of Congress are helping. My good friend Senator Cotton understands this issue. He is working on legislation that is intended to fix this problem for good — and I want to thank him for his outstanding leadership on criminal justice issues.

We should look for effective and proven ways to reduce recidivism, but we must also recognize that simply reducing sentences without reducing recidivism unfairly creates more victims.

I agree with Attorney General Sessions that we need a Johnson fix and more.  Reform to the Armed Career Criminal Act is long overdue (Justices Scalia and Alito have bemoaning ACCA problems and urged Congress to act for many, many years before Johnson).  Beyond just the vagueness problem Johnson addressed, there are deeper problems with the entire structure of the Armed Career Criminal Act, particularly its reliance on a severe mandatory minimum prison term (of 15 years) for the mere act of possessing a firearm or ammunition. Consequently, I do not think a mere Johnson fix to ACCA will be a fully sound or effective response to the genuine concerns flagged by AG Sessions.

In a future post, I hope to be able to discuss the specifics of Senator Tom Cotton's approach to fixing ACCA.  For now, I will just suggest it will be interesting to see if anyone in Congress will be willing to try to roll an ACCA fix into existing criminal justice reform proposals that are now seemingly languishing on the Hill.

August 1, 2018 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Offender Characteristics, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (5)

Office of Inspector General issues "Review of the Department’s Clemency Initiative"

A couple of helpful readers made sure I did not miss today's release of this big new report from the Justice Department's Office of the Inspector General titled simply "Review of the Department’s Clemency Initiative." Here is just the very start of its "Results in Brief":

We found that the Department did not effectively plan, implement, or manage the Initiative at the outset. However, subsequent actions by Department leadership enabled the Department to not only meet its goal of making recommendations to the White House on all drug petitions received by the deadline of August 31, 2016, but also to make recommendations on over 1,300 petitions received by OPA after the deadline. In total, as a result of the Initiative, the Department made recommendations to the White House on over 13,000 petitions, resulting in 1,696 inmates receiving clemency.

Our review identified several shortcomings in the Department’s planning and implementation of the Initiative. Because of philosophical differences between how the Office of the Deputy Attorney General (ODAG) and OPA viewed clemency, Department leadership did not sufficiently involve OPA in the Initiative’s preannouncement planning. Moreover, despite the Department’s stated commitment to provide OPA with the necessary resources, the Department did not sufficiently do so once the Initiative began.

The Department also did not effectively implement the Initiative’s inmate survey, which was intended to help the Department identify potentially meritorious clemency petitioners. For example, rather than survey only those inmates who likely met the Initiative’s six criteria, the survey was sent to every Federal Bureau of Prisons inmate. As a result, CP 14 and OPA received numerous survey responses and petitions from inmates who clearly did not meet the Initiative’s criteria, thereby delaying consideration of potentially meritorious petitions. We found other problems with the survey, resulting in OIG’s issuance of a Management Advisory Memorandum to the Department, which is attached as an appendix to this report.

Further, the Department experienced challenges in working with external stakeholders to implement the Initiative. For example, the Department did not anticipate that CP 14 attorneys would have challenges in obtaining inmate Pre-sentence Investigation Reports and, as a result, it took almost a year before the Administrative Office of the U.S. Courts allowed CP 14 attorneys to access them, which hampered CP 14’s ability to make timely eligibility determinations. We also found that the Department and CP 14 had very different perspectives regarding CP 14’s role in the Initiative. In particular, while the Department expected CP 14 to focus on identifying and submitting petitions on behalf of inmates who were strong candidates for clemency, CP 14 instead viewed its role as assisting and advocating for any inmate who wished to file a petition. As a result, the Department believes CP 14 took longer to complete its work.

Because I am on the road, I fear I will not have a chance to review and comment on this important and valuable new report. But what I have already read reinforces all my long-standing concerns about the Department of Justice having a central role in the clemency process and my long-voiced contention that all Prez should take clemency powers and possibilities seriously from the very moment they are elected to serve in the Oval Office.

August 1, 2018 in Clemency and Pardons, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

"What Is Prison Abolition?"

The title of this post is the headline of this article in The Nation, which carries the subtitle "The movement that is trying to think beyond prisons as a tool to solve society’s problems." Here is an excerpt:

The prison-abolition movement is a loose collection of people and groups who, in many different ways, are calling for deep, structural reforms to how we handle and even think about crime in our country.  There are de facto figureheads (such as Angela Davis and Ruth Wilson Gilmore, the most famous contemporary abolitionists) and organizations (such as Critical Resistance, INCITE!, the Movement for Black Lives, the National Lawyers Guild, and Incarcerated Workers Organizing Committee — all of which, if not explicitly abolitionist, at least engage in abolitionist ethics), and there are converging or at least overlapping political ideologies (anarchist, socialist, libertarian), but there is no structured organizing group or coalition.  Masai Ehehosi, a co-founder of Critical Resistance and longtime member of the New Afrikan Independence Movement, pointed me to the overlap between organizations promoting civil rights and abolitionists: “We want freedom” can just as easily be applied to ending Jim Crow or the New Jim Crow, to unlocking iron shackles or swinging open prison doors.

The “movement” thus operates with affinity groups, with various organizations working in prisoner support, prisoner advocacy, political advocacy, or community education. “And when something big happens,” as Azzurra Crispino, prison labor activist and philosopher, explained to me, “we all show up as a coalition, and we don’t interfere” with each other’s work.

Abolitionists believe that incarceration, in any form, harms society more than it helps.  As Angela Davis argues, prisons are an obsolete institution because they exacerbate societal harms instead of fixing them.  “Are we willing to relegate ever larger numbers of people from racially oppressed communities to an isolated existence marked by authoritarian regimes, violence, disease, and technologies of seclusion that produce severe mental instability?” Davis has written.  Even if we were to greatly diminish the current prison population, even if we were to cut it in half but keep the prison complex intact, we would still be consigning millions of people to isolation and violenc e— and that’s a form of inhumanity that abolitionists can’t abide.  Moreover, Davis contends, mass imprisonment “reproduce[s] the very conditions that lead people to prison.”

August 1, 2018 in Criminal Sentences Alternatives, Prisons and prisoners, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (3)

July 31, 2018

Judge Kavanaugh in 2009: "I think acquitted conduct should be barred from the guidelines calculation."

I blogged here about how Justice Kennedy's replacement would likely be a greater supporter of jury trial rights, and I blogged here and here and here about folks noticing Judge Brett Kavanuagh's notable statement in the 2015 Bell case (available here) that "[a]llowing 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."  But there is still more to this story as we await Judge Kavanaugh's confirmation hearing, and I realized as much thanks to this recent piece at the Brennan Center's website.

The Brennan Center piece noted that Judge Kavanaugh in 2009 testified to the US Sentencing Commission when the USSC was having regional public hearings to hear from stakeholders about federal sentencing.  The Brennan piece expressed concern that Judge Kavanuagh made the case for a return to a mandatory sentencing system in his testimony.  The Brennan analysis did not mention that Judge Kavanaugh in his testimony speaks out against the use of acquitted conduct (at least as a policy matter).  Here are portions of what he had to say in this testimony to the USSC and in follow-up questions:

Whether they are mandatory or advisory, I think acquitted conduct should be barred from the guidelines calculation. I don't consider myself a particular softy on sentencing issues, but it really bothers me that acquitted conduct is counted in the Guidelines calculation. I have written about this, and I think I am not alone.... It is just very problematic symbolically.

Put aside the substance, because I realize it still can come in on the back end, particularly in an advisory system, but telling a defendant, "Yes, you are acquitted but yes, we are going to calculate that sentence to include that acquitted conduct" just sends the wrong message. It seems to me in too many cases it seems inconsistent with the nature of our system. I would urge careful consideration of that issue.... (transcript pp. 41-42)

[O]ne of the things the guidelines did was to bring into the open, into the sunlight, things that had happened for years that no one knew or didn't think about in the same way, and all of a sudden you are having a precise increase based on acquitted conduct, and people say, "Well, it always happened that way."

Well, okay, but now you are actually seeing it, the actual impact.

As you say, quite rightly, no one understands that in the real world. It fails the common sense test, and it brings disrespect to the process, and it weakens confidence in the judicial process, and maybe you can reason your way from point A to point B to point C logically for why it should be part of the process, but when you take a step back, it just doesn't work, and I think even if it is purely symbolic, the effort to bar the consideration of acquitted conduct; even, in other words, if there is a logical reason to do it and the only reason not to do it is symbolic, symbolism has value in the criminal justice system at times, and I think this is one of those areas where it would be warranted.... (transcript pp. 80-81)

Of course, advocating against the use of acquitted conduct in guidelines calculations to the US Sentencing Commission is not the same as declaring the use of acquitted conduct in guidelines calculations unconstitutional. But this testimony leave little doubt as to Judge Kavanaugh's concerns about this issue, and it provides a reasonable basis for hoping he could bring some useful new perspectives to the Court on some sentencing issues.

Some prior related posts:

July 31, 2018 in Federal Sentencing Guidelines, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

After guilty plea, frat member gets 3 months of house arrest and 27 months of probation for role in hazing death of Penn State pledge

As reported in this AP piece, headlined "Penn State fraternity member gets house arrest in pledge death case," a high-profile college campus tragedy led to a notable state sentencing today in the heart of Pennsylvania.  Here are the details:

A Penn State fraternity member who plied a pledge with vodka the night he was fatally injured in a series of falls avoided jail time Tuesday when a judge sentenced him to three months of house arrest.

Ryan Burke, who had pleaded guilty to four counts of hazing and five alcohol violations, apologized to the parents of Tim Piazza, who died in February 2017 after a night of drinking and hazing in the Beta Theta Pi house. Burke said he was “truly sorry” and accepted responsibility for his role in the events that led to Piazza's death from severe head and abdominal injuries he suffered the night he accepted a pledge bid.

Centre County Judge Brian Marshall also gave Burke 27 months of probation, fined him more than $3,000 and ordered 100 hours of community service. “The court was shocked by what happened that night,” Marshall said, adding he was “mindful that there were many involved.”

Burke's defense attorney, Philip Masorti, said afterward he thought the sentence was fair.  “This was an accident that nobody wanted to happen,” he told Marshall. “It led to a tragic death.”

Burke, 21, of Scranton, is the only one so far to plead guilty in the case, in which more than two dozen members of the now-closed fraternity face charges. A hearing for some others is planned for next month, and trial for at least some will be in February.

Prosecutor Brian Zarallo with the attorney general's office said Burke took a leading role in what occurred, as he led the fraternity's effort to recruit new members and physically led them into a drinking station “gauntlet” that began a night of heavy drinking that was captured on the building's elaborate video security system. Piazza “didn't know what was waiting for him,” that night, Zarallo said. “The defendant did. The defendant knew exactly what was waiting for him.”

He played a videotape in which a ball cap-wearing Burke could be identified plying the wannabe members with a bottle of 80-proof vodka, and said Burke seemed nonchalant about Piazza's medical condition after he endured a bad fall down the basement steps. Burke “can't be bothered” and left Piazza for others to deal with him, Zarallo said, describing his actions as callous.

“This is a big joke to these people,” Zarallo said, telling the judge that five pledges vomited that night and one other injured an ankle.

Piazza's parents, who have become anti-hazing advocates, recounted the horror of being summoned to the hospital to find their son with a range of visible and very severe injuries, not far from the death that would soon follow....  Jim Piazza credited Burke for pleading guilty, but noted that occurred after a judge ruled there was sufficient evidence to send the case to county court for trial....

When Burke was first charged in November, he also was accused of involuntary manslaughter, aggravated assault, simple assault and reckless endangerment, but the attorney general's office dropped the most serious charges in April and a district judge subsequently dismissed some other counts.

This other local article reports that prosecutors were asking for three months of imprisonment. I suspect that what prosecutors sought for a defendant who played a leading role, as well as the actual sentencing imposed, might have a big impact on the various charges still facing the other two dozen members of the fraternity.  It is likely that the sentence given to Burke will end up impacting future plea negotiations as well as any sentences that might be imposed on any defendants convicted after a trial.  In tragic incidents like this one in which is it so hard to know just what kind of sentence is "right" in response to unintended harms, I sense it becomes easier for lawyers and judges to gravitate toward sentences already imposed in related cases.

July 31, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

"Why Is It Wrong To Punish Thought?"

The title of this post is the title of this new article posted to SSRN authored by Gabriel Mendlow. Here is its abstract:

It’s a venerable maxim of criminal jurisprudence that the state must never punish people for their mere thoughts — for their beliefs, desires, fantasies, and unexecuted intentions. This maxim is all but unquestioned, yet its true justification is something of a mystery.  In this Essay, I argue that each of the prevailing justifications is deficient, and I conclude by proposing a novel one.

The proposed justification captures the widely shared intuition that punishing a person for her mere thoughts isn’t simply disfavored by the balance of reasons but is morally wrongful in itself, an intrinsic (i.e., consequence-independent) injustice to the person punished.  The proposed justification also shows how thought’s immunity from punishment relates to a principle of freedom of mind, a linkage often assumed but never explained. 

In explaining it here, I argue that thought’s penal immunity springs from the interaction of two principles of broad significance: one familiar but poorly understood, the other seemingly unnoticed.  The familiar principle is that persons possess a right of mental integrity, a right to be free from the direct and forcible manipulation of their minds.  The unnoticed principle, which I label the Enforceability Constraint, is that the state’s authority to punish transgressions of a given type extends no further than its authority to thwart or disrupt such transgressions using direct compulsive force.  Heretofore unexamined, the Enforceability Constraint is in fact a signal feature of our system of criminal administration, governing the scope and limits of the criminal law.

July 31, 2018 in Offense Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (2)

The American Conservative explores "What’s Philly’s DA Got to Do With Me?"

In prior posts here and here, I have highlighted an ongoing series of lengthy articles in The American Conservative that are part of "a collaborative series with the R Street Institute exploring conservative approaches to criminal justice reform."    This latest article zeroes in on a notable new figure under the full headline "What’s Philly’s DA Got to Do With Me?: If every city had a Larry Krasner, there might be fewer people in jail who didn't belong there." Here is how the article gets started:

Since taking office he’s stopped prosecuting simple possession of marijuana.  He’s limited civil asset forfeitures only to cases in which there’s a conviction.  He’s directed his assistant district attorneys to include the cost of a prison term in making sentencing recommendations.  Oh, and he’s published a list of 29 local police officers that he views as unreliable witnesses due to their abuse of their powers and other corruption.

For traditional law-and-order types, Philadelphia’s new district attorney, Larry Krasner, might be something of a nightmare.  But for civil libertarians and jail reformers across the political spectrum, he’s putting into practice policies that they’ve been pushing for a long time.

Krasner, who took office in January, styles himself a progressive, but his objectives dovetail closely with those of conservative and libertarian justice reformers.  All share a broader vision of radically reshaping a criminal justice system that is deeply unjust and out of line with American constitutional and moral values.

“I personally think our criminal justice system is thoroughly rotten and it has a number of features that, in my judgment, have so undermined the legitimacy of the criminal justice system and so sharply tilted the playing field in favor of prosecutors and against defendants that is has deprived our criminal justice system of its integrity and its legitimacy,” Clark Neily, the vice president for criminal justice at the Cato Institute, tells The American Conservative.

Prior related posts:

July 31, 2018 in Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (1)

July 30, 2018

Notable review of capital clemencies by Ohio governors

The AP has this interesting new piece, headlined "Gov. Kasich spares record number of death row inmates," that reviews the current and past Ohio gubernatorial records on the death penalty and capital clemencies. Here are excerpts:

Ohio Gov. John Kasich has finished dealing with executions for the remainder of his time in office following a modern-era record of death penalty commutations.  The Republican governor spared seven men from execution during his two terms in office, including commutations on March 26 and July 20. Kasich allowed 15 executions to proceed, including the July 18 execution of Robert Van Hook for strangling, stabbing and dismembering a man he met in a Cincinnati bar more than 30 years ago.

Not since Democrat Mike DiSalle spared six death row inmates in the early 1960s has an Ohio governor spared so many killers during periods when the state had an active death chamber. DiSalle allowed six executions to proceed. Democratic Gov. Richard Celeste commuted eight death sentences just days before leaving office in 1991, but none of those inmates' executions was imminent....

Kasich's immediate predecessor, Democratic Gov. Ted Strickland, commuted five death sentences and allowed 17 executions during his four-year term. Ohio resumed executions in 1999 under Gov. Bob Taft after a 36-year gap. Taft, a Republican, allowed 20 executions to proceed and spared just one inmate based on concerns raised by DNA evidence not available at the time of trial.

Nationwide, governors have spared 288 death row inmates since the U.S. Supreme Court upheld the constitutionality of capital punishment in 1976, with a handful spared each year over the past decade. That doesn't include mass clemencies in states — such as New Jersey in 2007 — where the death penalty was abolished and entire death rows were emptied.

Sparing inmates is not the political death knell it might have been in decades past, thanks to concerns about innocence raised by DNA testing and the role of severe mental illness on some offenders' behavior. "Kasich's decisions to commute reflect a societal shift away from an unquestioning belief in the value of the death penalty or at least the value in every case," said Lori Shaw, a University of Dayton law professor....

Taft said he's now opposed to capital punishment except in the most severe cases, such as acts of terrorism, multiple victims or the killing of a police officer. He also backs findings of a state Supreme Court commission that recommended against the death penalty for inmates suffering severe mental illness at the time of the crime, and in cases where a homicide was committed during other crimes such as burglaries or robberies. "The climate is a little different in regard to the death sentence today," Taft said. "Governors have more latitude or leeway to consider a number of factors that may not have been considered in prior times."

I noted in this prior post that Gov Kasich's capital record was notable, and I find the comments of former Ohio Gov Taft especially interesting here. (N.B.: the AP needs to fact-check Taft's executions record, as I am pretty sure he presided over 24 executions.)  When Taft says "Governors have more latitude or leeway to consider a number of factors that may not have been considered in prior times," he is not talking about any change in the legal standards or procedures for clemency in Ohio.  Rather, Taft is referencing a purely political evolution that now make it much less politically risky for a Governor to grant lots of capital clemency.

July 30, 2018 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

A deep dive into various big and little juvenile life without parole stories

The Dublin Review has published this very lengthy discussion of juvenile life without parole sentences under the simple headline "A different season." The lengthy piece is authored by Andrew Purcell, and it cannot be readily summarized. Here is one snippet:

Many of Pennsylvania’s district attorneys have responded to the Supreme Court’s Montgomery decision by striking plea deals with the longest-serving prisoners. Others, in conservative counties, have not. By late September 2017, 173 of the state’s 517 juvenile lifers had been re-sentenced, and 77 paroled for time served. Most of the released prisoners are from Philadelphia, creating a small community of men with the shared experience of being locked up their entire adult lives, adapting to a world that has moved on without them. Courtney ‘Juan’ Boyd, recently released after serving thirty-six years, was calling John to ask about a re-sentencing hearing the previous night for a prisoner called Andre Martin.  At fifteen, Martin shot a police officer in the head from a window at the Wilson Park projects.  He had forty-one years in already, and the prosecution was seeking sixty to life, supported at the hearing by the dead cop’s family and a roomful of police officers.  Judge Barbara McDermott gave him forty-four to life. In three years, the opposing sides will meet again at an equally charged parole hearing, to argue about whether or not Martin should be released.

Each of the fifty states has responded differently to the Montgomery v Louisiana ruling, and there are also variations within states, as district attorneys interpret the concept of ‘permanent incorrigibility’. In Michigan, for instance, prosecutors initially sought new life-without-parole sentences for 236 of the 363 men and women serving mandatory life terms for crimes committed as minors, a clear deviation from the Supreme Court’s intent to reserve the punishment for ‘the rarest of juvenile offenders’. The Oakland County DA has asked for life without parole in forty-four of forty-nine cases; ‘These are young Hannibal Lecters,’ county sheriff Michael Bouchard told the press. In Missouri, teenage lifers are now eligible for parole once they have spent twenty-five years in prison, but of twenty-three who have applied, twenty have been denied. In Maryland, all 271 juvenile lifers are parole-eligible, but no such prisoner has been released in two decades.

All over the country, lawsuits are establishing whether and how Montgomery should affect discretionary sentences. ‘We think the Montgomery standard is impossible [for prosecutors] to beat, in that everyone is capable of rehabilitation given the proper support,’ said Brooke McCarthy of the Juvenile Law Centre. ‘To say that you can never fix someone in the future, no matter what, is such an incredibly difficult standard to reach. Some district attorneys have gotten clever … so rather than asking for life without parole they’re asking for fifty-, sixty-, seventy-five-year minimums.’

July 30, 2018 in Assessing Miller and its aftermath, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (2)

Fascinating split Sixth Circuit discussion of how Johnson-invalidated ACCA sentences are to be corrected and reviewed

For those who like to think a lot about federal collateral review procedures and the aftermath of Johnson and sentencing retroactivity (and who doesn't), the Sixth Circuit today handed down a fascinating split panel decision in US v. Nichols, No. 17-5580 (6th Cir. July 30, 2018) (available here).  In Nichols, the defendant succeeded in challenging in the district court his 24-year sentence for a firearm offense under the Armed Career Criminal Act based on the Supreme Court's Johnson ruling that one ACCA provision was unconstitutionally vague.  So far so good.  But here is where it gets interesting:

By the time the district court entered Defendant’s corrected sentence, Defendant had already served twelve years in prison — two years in excess of the ten-year statutory maximum for his firearm offense.  The Guidelines range for Defendant’s conduct, absent the ACCA enhancement, was 51 to 63 months’ imprisonment, which is well below the statutory maximum of ten years.  Based on his belief that a period of over-incarceration can be calculated and credited toward the completion of a consecutive sentence, Defendant asked the district court to impose a Guidelines-range sentence and, in any event, to impose a sentence of a specific term of months.  The district court denied Defendant’s request and instead imposed a corrected sentence of “time served,” which was equivalent to a term of about twelve years’ imprisonment. (R. 52 at PageID #347.) Defendant requested reconsideration, which the district court denied.  Defendant then filed this timely appeal.

Why does the defendant care?  Here is why: "While in prison, Defendant was convicted and sentenced for conspiracy to distribute heroin, in violation of 21 U.S.C. §§ 846, 841(b)(1)(C); possession of heroin by an inmate ... and conspiracy. The district court sentenced Defendant to an additional 151 months’ imprisonment, to be served consecutively to Defendant’s existing 24-year term of imprisonment for the firearm offense."  The defendant here is eager to be fully resentenced on his gun crime to as low a term as possible so that extra time already served will be credited against his drug crime sentence. 

Because the statutory maximum sentence for the defendant's gun crime is only 10 years after the ACCA correction, the majority in Nichols reasonably asserts that "time served" is functionally a 12-year illegal sentence that must be corrected.  Interestingly, the panel also concludes that reasonableness review applies in this corrected sentencing setting, and they also find the time-served sentence procedurally unreasonable for lack of adequate explanation.

Judge Batchelder pens a lengthy dissent in which she laments the way the majority frames and remedies the situation here.  The tail end of her dissent summarizes her concerns with the panel ruling and her suggested solution:

Finally, I question the merit of the majority’s proffered legal doctrine that holds, in three parts: (1) that a time-served sentence equates to a term-of-months sentence in the number of months actually served; (2) that the sentence is illegal when that post hoc term of months exceeds the newly applicable statutory maximum (or, broadly stated, actions that were taken pursuant to a statute are ex post facto unlawful when the statute is retroactively unconstitutional); and (3) the resulting illegal sentence is per se reversible plain error.  So, again, as applied here: any corrected sentence of time served for an inmate who has already served more than the newly applicable 10-year maximum is per se reversible plain error.  Moreover, the inmate must receive a full resentencing sufficient for reasonableness review.

Given the breadth of this holding and the vast number of sentences to which it might henceforth apply, this opinion will doubtless have consequences, foreseeable and unforeseen.  How many corrected sentences will now be per se reversible plain error?  How many inmates, like Nichols, will discover that they have long been unlawfully incarcerated, and what will be the effect of that discovery?  Will they, like Nichols, pursue a time bank or offset?  Or will they seek compensation for that newly discovered unlawful incarceration?  What of an inmate who suffered an injury, committed a crime, or unsuccessfully demanded special accommodations while so incarcerated — how does the calculus change when it is later declared via post hoc stipulation that the inmate was only in prison because he was being held unlawfully?

Rather than holding that the corrected sentence of time served necessarily equates to a term of years equal to the amount of time already served and invoking the legal fictions and consequences that follow, we might be better served by viewing a “time-served sentence” as different in kind from a “term of years sentence,” either of which could satisfy the district court’s discretionary choice of relief under § 2255. That is, of course, an entirely different analysis from the one the majority has undertaken here, though compatible with the approach taken by the district courts that have been resolving § 2255 motions based on Johnson/Welch.

July 30, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

Poll suggests huge public support for FIRST STEP Act with lots of other interesting findings

Over the weekend I noticed this Hill piece reporting in its headline "Poll finds broad support for House-passed prison reform bill." Here are the details via :

The poll, conducted for Freedom Partners by the Charles Koch-backed group In Pursuit Of and provided exclusively to The Hill, found that 70 percent of likely voters approve of the First Step Act, which cleared the House by a 360-59 margin earlier this year. Only 14 percent said the Senate should not pass it, according to the poll that sampled Republicans, Democrats and voters who did not affiliate with either party.

Freedom Partners has put six-figures behind an ad campaign urging senators from both parties to support the legislation. They hope the poll results will prod Senate Republicans to take the bill up.

Passing prison reform is a top priority for the Kochs. There is frustration among the network of conservative donors and activists that the Senate has not moved to take up the bill, which aims to incentivize inmates to complete prison programs that might reduce their likelihood to commit crimes again when they are released.

“Voters broadly support the FIRST STEP Act and will hold senators accountable for failing to pass the bill,” said Freedom Partners Chairman Mark Holden. “It’s time for the Senate to do its job and send this bipartisan legislation to President Trump’s desk.”

The bill has 60 percent support among registered Republicans, according to the poll. Nearly half of likely voters – 47 percent – said they would have a more negative view of Senate Republicans if they don’t move to pass the bill....

The Freedom Partners survey of 1,759 likely voters was conducted online between July 18 and July 20 and has a 2.3 percent margin of error.

This press release provides a few more details about this poll as well as this link to a summary of key findings from the poll. These findings, in particular, should be encouraging to those hoping criminal justice reform will be a salient political issue this fall:

How important is it to reduce the number of people who are in prison in America today?

72% TOTAL IMPORTANT    28% TOTAL NOT IMPORTANT

28% Very important    44% Somewhat important

19% Not very important    9% Not at all important...

 

Thinking ahead to the midterm elections this November – how important to you is the issue of criminal justice reform as you decide who you’ll be voting for?

75% TOTAL IMPORTANT    25% TOTAL NOT IMPORTANT

25% Very important    50% Somewhat important

20% Not very important    5% Not at all important...

 

Would you be more or less likely to vote for a political candidate if you knew he or she supported criminal justice reform?

60% More likely to support candidate    32% No difference in support    8% Less likely to support candidate

July 30, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (4)

July 29, 2018

How should advocates for reduced prison populations respond to deadly actions by released violent offenders?

In response to recent posts about clemency here and about reducing prison populations here, commentator federalist has flagged two local stories of violent offenders released after relatively short periods of incarceration gong on to commit murder.  One story, out of Atlanta, and is discussed in this newspaper piece under the headlined "‘Visionary’ didn’t keep promises to help violent teenager."  Here is a snippet:

One day last August, Gwendolyn Sands stood before a Fulton County judge and promised to rehabilitate a teenage boy already well on his way to a life of violence.... Her organization, Visions Unlimited, would pair the boy with a “life coach” for “24/7 supervision,” Sands told the judge. Her staff would instruct the boy in life skills, career readiness and the perils of street gangs. They would hold “family support” meetings every month  — “and more often,” Sands said, “as necessary.”

Later, she would even agree to take the boy into her own home.  It seemed the only way to shelter him from the streets where he had stuck a pistol in a woman’s face and robbed her.

But Sands kept almost none of her promises to transform Jayden Myrick.  Now Myrick is charged with murder, accused of shooting 34-year-old Christian Broder during a robbery on July 8 outside Atlanta’s Capital City Club.  Broder, an Atlanta native who lived in Washington, D.C., died July 20.  He left behind a wife and an infant daughter.  And, at 17, Myrick faces life in prison — the very outcome the judge had hoped Sands would help prevent....

Fulton Superior Court Judge Doris Downs, who twice released Myrick into Sands’ custody, declined to comment.  Other court officials would not answer questions about why Downs or other judges trusted Visions Unlimited or whether they vetted Sands’ credentials.  In a statement, Chief Judge Robert McBurney deflected responsibility for monitoring the performance of such organizations.

Another story, out of San Francisco, is discussed in this CNN piece headlined "Officials still don't know why a white man allegedly stabbed a black woman to death in a subway station." Here is an excerpt:

Nia Wilson was standing on a Bay Area Rapid Transit station platform in Oakland, California, Sunday night when she was stabbed to death in an apparently unprovoked attack.

By Monday night, John Cowell, 27, had been arrested in connection to the stabbing, but days later, officials still haven't said what prompted the attack, which a police chief compared to a "prison yard assault."...

Cowell was convicted of second-degree robbery and assault with a deadly weapon in 2016, according to the criminal complaint.  He was paroled in May after being sentenced to two years in prison for second-degree robbery, according to California Department of Corrections and Rehabilitation....

Cowell's family released a statement extending its sympathy to Wilson's, and said Cowell had long been suffering from mental illness.  "He has been in & out of jail & has not had the proper treatment," the statement said.  He's been diagnosed with bipolar disorder and schizophrenia, the family said, and they had to get a restraining order at one point "for our own protection."  Cowell's been living on the streets since.

In one comment, federalist not unreasonably asks "How, Doug, do we prevent mistakes like Judge Downs'?".  I do not have a fully satisfying answer: judges are imperfect at gauging risk, and the only certain way to prevent any and all released offenders from ever committing any serious future crimes is to never release any of them in the first place.  I am drawn to using actuarial risk-assessments in our criminal justice system because such tools should help reduce mistakes in forecasts of future violent behavior, but there still will be mistakes (and violent consequences) even with the use of (inevitably imperfect) risk-assessment instruments. 

As an advocate of various modern criminal justice reforms, I am in this context eager to (a) lament that we do not have been juvenile and prison programming to better rehabilitate violent persons, and (b) note that modern mass incarceration is the result of many "mistakes" of over-incarceration.  But these statements provide cold comfort to anyone reasonably inclined to call the tragic deaths of Christian Broder and Nia Wilson entirely preventable if we had just "gotten tough" with Jayden Myrick and John Cowell.

Another move, of course, is to stress that modern sentencing reform efforts are or should be particularly focused on non-violent offenses and offenders.  But sensible folks arguing for dramatic reductions in our prison populations rightly say that violent offenders should not be excluded from efforts to reduce reliance on incarceration, and there is also recidivism data showing that some non-violent offenders will go on to commit subsequent violent offenses.

So, dear readers, is there a "good" answer to the question in the title of this post?

July 29, 2018 in Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (26)

"Reducing the prison population is a bipartisan goal"

The title of this post is the title of this recent Dallas Morning News commentary authored by Doug Deason, who is a co-founder of the Deason Criminal Justice Reform Center at Southern Methodist University.  Here are excerpts:

About 1.5 million people are sitting in state and federal prisons across the U.S. today, according to the Bureau of Justice Statistics, many for nonviolent crimes.  Prisoners all too often face inhumane conditions and are woefully unprepared to rejoin society as peaceful, productive and law-abiding citizens.

This weekend I will join Charles Koch and other business and philanthropic leaders for a retreat in Colorado Springs to discuss how we can work together to solve this and other challenges and create a freer and more open society.  We know challenges like these can't be solved alone.  We stand ready to, in the words of the great abolitionist Frederick Douglass, "unite with anybody to do right and with nobody to do wrong."  And there are few issues in which "doing right" is more urgently needed than fixing our broken criminal justice system....

Many are rightfully alarmed at the inequities in the criminal justice system. African-Americans make up around 13 percent of the U.S. population but account for one-third of inmates, according to the BJS, and compared to the general population, prisoners are far more likely to have a history of mental health problems and drug abuse.  A Brookings Institution study found that four out of every five prisoners had zero earnings when they entered prison.

Then there are the costs to taxpayers and innocent family members.  The annual cost of running the corrections systems at the national, federal, state and local levels exceeds $80 billion, according to a Washington University in St. Louis study.  It is a system that frequently turns folks who were once taxpayers into wards of the state. And it leaves many mothers and fathers to raise their children alone and without the aid of child support.

These mounting concerns have energized support for reform across the political spectrum. As a co-founder of the Deason Criminal Justice Reform Center at Southern Methodist University, I have participated in panel discussions with CNN's Van Jones to highlight the need for cutting incarceration rates.  As a Republican businessman and a Democratic political commentator, we don't always see eye-to-eye when it comes to politics.  But like many Americans, we are willing to put our differences aside to address this critical problem.

As U.S. Rep. Hakeem Jeffries, D-N.Y., recently said, according to Townhall.com, "overcriminalization is increasingly viewed as not a Republican or a Democrat problem but as an American problem." Jeffries and Rep. Doug Collins, R-Ga., are co-sponsors of the First Step Act, legislation that would help rehabilitate prisoners and save taxpayers billions of dollars in the process....

Reforming the criminal justice system won't be easy or quick. It will require a long-term commitment.  But if we want to break the barriers that keep too many Americans trapped in lives of crime and poverty, we will all need to work with unlikely partners.  The leaders gathering in Colorado Springs welcome any allies willing to unite to do right. Let's not let our differences stop us from working together on these critical issues.

July 29, 2018 in Elections and sentencing issues in political debates, Prisons and prisoners, Who Sentences | Permalink | Comments (17)

A (partisan) look at some of Judge Brett Kavanaugh's record on criminal justice issues

Over here at the Brennan Center's website, Priya Raghavan has a review of some of the criminal justice decision of new SCOTUS-nominee Judge Brett Kavanaugh under the heading "Open Questions: Brett Kavanaugh and Criminal Justice: Kavanaugh’s record is sparse, but that makes understanding his stance on the issues all the more important."  Here is an excerpt (with links from the original and a little emphasis added):

The rare instances when Kavanaugh sides with defendants are equally telling.  In U.S. v. Burwell, Kavanaugh dissented from a decision that upheld a 20-year sentence enhancement for a defendant who used a machine gun during a robbery. Kavanaugh argued that there was no proof that the defendant knew the gun he used was a machine gun and that the law should require such proof.  But this doesn’t necessarily mean that Kavanaugh was looking out for the little guy. Insisting on such intent requirements — mens rea, in legal terminology — could make it harder for the government to prosecute white-collar criminals, largely benefitting a small segment of affluent defendants. 

Kavanaugh’s views on sentencing are more difficult to parse.  He testified in 2009 that, from a policy perspective, he believed federal sentencing guidelines should be mandatory, rather than advisory, to  limit judicial discretion in sentencing.  He was concerned that advisory guidelines would allow judges to impose their personal views at sentencing, leading to disparate outcomes. But Kavanaugh has on several occasions disagreed with his colleagues and supported lower court judges who gave harsh, above-guidelines sentences with little to no explanation of their reasons for doing so.  In both In re Sealed Case and the recent U.S. v. Brown, where the D.C. Circuit vacated sentences after judges issued harsh, above-guidelines sentences without sufficient explanation, Kavanaugh dissented, calling the majority’s holding in the latter case “confounding.”  Kavanaugh’s statements on sentencing leave us wondering: how much discretion does he think judges should have? 

Kavanaugh has had little chance to opine on those subjects that comprise the hallmarks of Kennedy’s criminal justice legacy, such as the death penalty, juvenile justice, and prison overcrowding. But it seems unlikely that Kavanaugh will follow his old boss’ lead, especially given his alignment with his “first judicial hero” William Rehnquist, whose far-right views on many issues, including criminal justice, fell well outside the mainstream. 

To be sure, conservatives do not always side with law enforcement.  Kavanaugh’s high school classmate and Kennedy clerk colleague, Justice Neil Gorsuch, recently sided with the defendant in Session v. Dimaya, a major ruling that found parts of the immigration law unconstitutionally vague. Kavanaugh could surprise us, too. 

Criminal cases comprise a sizeable portion of the Supreme Court’s docket, and the opinions from them can reverberate down to every encounter with police, as happened with the Miranda warning.  As just one example, this fall the Court will hear Timbs v. Indiana and decide whether the Eighth Amendment prohibition against excessive fines applies to the states, effectively determining how much criminal defendants can be fined. 

Before he is confirmed, the Senate — and the American people — must have a better sense of Kavanaugh’s thinking about criminal justice.  During his confirmation hearings, Senators should ask — and Kavanaugh should answer with specifics — the following questions: 

  • Given the stark racial disparities in the criminal justice system, how would he ensure equality under the law?
  • Does he believe that the meaning of the Constitution, specifically the Eighth Amendment prohibition against cruel and unusual punishment, can change over time? 
  • What is his stance on solitary confinement?
  • What are the limits of police power?
  • What are his beliefs about mandatory minimums and judicial discretion in sentencing?
  • Does he believe that fines and fees levied on criminal defendants should be limited?

I am always deeply troubled by the deeply misguided notion that preserving a serious commitment to mens rea in the criminal law does not help the "little guy," and I find almost comical the assertion that the views of Chief Justice William Rehnquist "fell well outside the mainstream."  Nevertheless, depsite this review being more than a bit too partisan, I am still glad to see it spotlight criminal justice concerns and its suggestion that Senators ask SCOTUS-nominee Kavanaugh a bunch of question about these issues.   And I think the questions I bolded above are on topics that seem to me especially timely.

That said, I think good questions to a SCOTUS nominee should not be about "his stance" or "his beliefs" as if he were seeking an elected office where he would be expected to put policy preferences into action.  Rather, sound and effective questions should focus on the text of the Constitution and existing SCOTUS precedents in order to explore how the nominee's judicial philosophy is likely to find expression as these issues come before the court in the years ahead.  In this post on a Sunday morning about 14 months ago, I gave some examples of how I might structure key questions in the run up to Justice Neil Gorsuch's confirmation hearing:

Some prior related posts:

July 29, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)