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August 25, 2018

Is it too early to start a new US Attorney General short list (or wish list)?

I think it is extremely unlikely that Prez Donald Trump will fire Attorney General Jeff Sessions before the mid-term elections in November, which are still more than 10 weeks away.  Nevertheless, as detailed in this Bloomberg piece headlined "Key Republicans Give Trump a Path to Fire Sessions After the Election," some key Senators are seemingly trying to make it easier for Prez Trump to consider replacing AG Sessions after the election:

Donald Trump, who’s long threatened to fire Attorney General Jeff Sessions, may have received a crucial go-ahead signal from two Republican senators with a key condition attached: wait until after the November elections.

Confronted with the criminal convictions this week of his former campaign chairman Paul Manafort and his former personal attorney Michael Cohen, the president has only reaffirmed his open resentment that Sessions recused himself from what’s become a wide-ranging investigation led by Special Counsel Robert Mueller.

The pivotal message on Thursday came from Senator Lindsey Graham of South Carolina, who oscillates between criticizing many of the president’s policies and defending a president who sometimes invites him to go golfing at a Trump-branded resort.  “The president’s entitled to an attorney general he has faith in, somebody that’s qualified for the job, and I think there will come a time, sooner rather than later, where it will be time to have a new face and a fresh voice at the Department of Justice,” Graham told reporters.

But he added that forcing out Sessions before November “would create havoc” with efforts to confirm Trump’s Supreme Court nominee Brett Kavanaugh, as well as with the midterm elections on Nov. 6 that will determine whether Republicans keep control of Congress.

Senator Chuck Grassley of Iowa, the Judiciary Committee’s chairman, also changed his position on Thursday, saying in an interview that he’d be able to make time for hearings for a new attorney general after saying in the past that the panel was too busy to tackle that explosive possibility.

It wasn’t clear, though, whether the senators’ comments were intended to endorse a move on Sessions later, or to coax Trump out of taking precipitous action now.  And some senior Republican senators strongly rejected Graham’s seemingly impromptu fire-him-later idea.

Notably, Prez Trump this morning tweeted out Senator Graham's staement this way:

@LindseyGrahamSC “Every President deserves an Attorney General they have confidence in. I believe every President has a right to their Cabinet, these are not lifetime appointments. You serve at the pleasure of the President.”

I still think, for now, it is mostly a parlor game to imagine who Prez Trump might seek to replace AG Sessions.  But this game surely shapes my own rooting interest as a supporter of federal criminal justice and marijuana reforms.  If, say, Senator Tom Cotton were to be Prez Trump's pick to replace AG Sessions, I would be content with the status quo.  But if, say, Senator Cory Gardner were to be of interest to the President, then I would start rooting for AG Sessions to start packing up his office.  Of course, a perhaps more plausible pick might be someone like Senator Ted Cruz (especially if he were to lose his re-elction bid in November, which seems unlikely but possible).  And one has to wonder whether anyone could be confirmed by a divided Senate either in a lame-duck period or soon thereafter. 

Just for fun, I would be interested in hearing readers' creative possibilities for the next Attorney General, and I will start the game by throwing out two names just for kicks: Brian Sandoval and Dabney Friedrich.  I have no idea if either would have any interest in a position that is challenging even under the best circumstances, but I think both have just the right combination of experience, independence and "confirm-ability" to make them plausible possibilities.

Please play along, dear readers, in the AG short-list game.

August 25, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (6)

"Explaining Misperceptions of Crime"

The title of this post is the title of this paper I saw earlier this summer via SSRN which I have been meaning to post.  The paper is authored by Jane Esberg and Jonathan Mummolo and here is its abstract:

Promoting public safety is a central mandate of government.  But despite decades of dramatic improvements, most Americans believe crime is rising — a mysterious pattern that may pervert the criminal justice policymaking process.  What explains this disconnect?  We test five plausible explanations: survey mismeasurement, extrapolation from local crime conditions, lack of exposure to facts, partisan cues and the racialization of crime. 

Cross-referencing over a decade of crime records with geolocated polling data and original survey experiments, we show individuals readily update beliefs when presented with accurate crime statistics, but this effect is attenuated when statistics are embedded in a typical crime news article, and confidence in perceptions is diminished when a copartisan elite undermines official statistics.  We conclude Americans misperceive crime because of the frequency and manner of encounters with relevant statistics.  Our results suggest widespread misperceptions are likely to persist barring foundational changes in Americans’ information consumption habits, or elite assistance.

August 25, 2018 in National and State Crime Data, Who Sentences | Permalink | Comments (3)

"Summonsing Criminal Desistance: Convicted Felons' Perspectives on Jury Service"

The title of this post is the title of this interesting paper authored by James Binnall recently posted to SSRN.  Here is its abstract:

This exploratory study is the first to examine how convicted felons view the jury process and their role in that process.  Data derived from interviews with former and prospective felon-jurors in Maine, the only US jurisdiction that does not restrict a convicted felon’s opportunity to serve as a juror, reveal that participants displayed an idealized view of jury service, stressing a commitment to serve conscientiously.  Additionally, inclusion in the jury process affirmed their transitions from “offenders” to “non-offenders.”  In response, participants exhibited a sense of particularized self-worth, emphasizing that negative experiences with the criminal justice system make one a more effective juror.  In sum, this study suggests that among convicted felons, inclusion in the jury process may prompt conformity with the “ideal juror” role, facilitate prosocial identity shifts by mitigating the “felon” label, and help former offenders to find personal value.

August 25, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

August 24, 2018

A true insider's reaction to Senator Cotton's commentary about federal criminal justice reform efforts

In prior posts here and here and here, I noted the commentary from Senator Tom Cotton attacking the federal criminal justice reform bills moving through Congress and some responses it has engendered.  Today I receive an email from the son of a federal prisoner who maintains this interesting blog with postings from his father.   The blog is worth checking out and it is titled "Blue Collar Criminal: 60-something small business owner.  Screwed by the DOJ.  Now I'm in prison.  These are my thoughts."

In addition to pointing me to this blog, the prisoner's son shared his father's response to the piece Senator Cotton wrote in the Wall Street Journal and gave me permission to reprint his father's writings here:

I write this response to Sen. Tom Cotton's editorial ("Reform the Prisons Without Going Soft on Crime") from within my 8 X 10' federal prison cell I share with another medicare-eligible inmate.  We agree that Cotton's essay should have been entitled - Reform the Prisons Without Doing a Damn Thing.

Cotton bases a lot of his assertions on statistics. In lieu of rebutting them, which would be a bit hard given my current lack of access to the internet, I have to settle on "inferior" data, which is the actual experience of actual prisoners whom I know, and find every bit as credible as anyone I knew on the "outside".  The specific ones I'm bouncing Cotton's preposterous claims off of, are guys with 10+ years of incarceration, and who have experienced a wide variety of federal prisons before working themselves down to the federal camp.  Though I've only been "down" one year, I find my bullsh*t detector is pretty reliable, and comes in handy when evaluating prison stories and reading editorials such as Cotton's.  Based on these findings, I not only doubt the factuality of the statistics he uses, I gravely mistrust the motives behind them.

I came here a big fan of Sen. Cotton's.  I first knew of him when he was a soldier, serving in Iraq, who was thought for awhile to be fictitious, due to the cognitive dissonance produced by the idea of a Harvard Univ./Harvard Law School grad being an infantry officer. I was very attuned to him, since my son was also in Iraq at the same time.  He also put his pen to good use in rebutting anti-war propaganda.  I was shocked, when my "adventure" with the DOJ brought me here, to find that Cotton, along with another of my conservative heroes - Sen. Jeff Sessions - were regarded as the mortal enemies of federal inmates, at least those who followed the progress of issues related to prison reform.  My move away from fanhood has been sealed by this editorial, which has impressed me that he's traded the tools of war for the tools of sophistry.

For starters, in Cotton's mind, we are all "criminals", a word he loves to repeat. One-size-fits-all.  Excuse my sensitivity, and I leave it to friends and family to defend my name, but many of these guys are as fine individuals as any I know, and were "productive, law-abiding citizens" until the feds came after them.  (If you find that hard to swallow, you might care to read Harvey Silverglate's 'Three Felonies A Day'.)

He calls the House bill "flawed", and to the extent that it tampers with mandatory minimum sentences, or gives judges more discretion, a prescription for a "jailbreak". Why is lengthening a sentence wise, but shortening some foolish?  Why is Cotton incapable of recognizing that prison populations are comprised of both truly dangerous, bad-guy criminals, and nonviolent, non-dangerous law-transgressors (including some who are truly and factually innocent)? Many of the guys I know in here would probably only "endanger communities" by cutting their neighbors lawn while they're on vacation.  (And I'm not here making a distinction between "white-collar" and "drug offenders".  I've learned that 'drug offender' is also not a one-size-fits-all category).

In his paragraph on the current "drug epidemic", he cites a number of statistics to justify mandatory minimum sentencing, but ends by essentially admitting those statistics might not be significant or prove his point.

His statements about how very little of recidivism is attributable to parole violation, does not purport with what I've seen nor the experience of my "experts".  Most of the guys in my unit who have prior convictions are here now because their parole officer caught them 'high'.  One guy here, a farm boy, had a prior drug felony, and "caught" an 8 year sentence for a felony firearms crime.  He was deer hunting in a tree stand, having lost his right to bear arms by virtue of being a drug felon. Cotton's statistic to prove that drug convictions lead to rearrests for murder and rape 77% of the time, strikes my fellow inmates as not only false, but weird, crazy scare tactics.

Cotton's cherry-picked example of a drug dealer, Wendell Callahan, who murdered his girlfriend and her daughters, is great for demagogic purposes, but irrelevant to the debate of shortening the eligible sentences of nonviolent felons.  This has to be weighed in a context that looks objectively at good outcomes as well as negative.  Keeping families apart, and depriving children of their fathers, when its not necessary for the public good, is a social evil; and this is what mandatory minimum sentences often do.  It leads to and insures that the next generation will likely repeat the mistakes of their parents.

Cotton attacks even the term "mass incarceration" on the strange basis that it couldn't possibly be big, since it could be bigger.  I would say simply, that whichever country incarcerates the highest percentage of it's citizenry deserves the title of "mass incarcerator".  This would be the United States.  One book I've read states that the U.S. incarcerates 6 to 12 times more than the following countries: Canada, U.K., France, Germany, Italy or Australia.  Yet Cotton thinks we don't lock up enough.

But it gets worse. Cotton writes that "virtually no one goes to federal prison for "low-level, nonviolent" drug offenses.  Even I, a relative newbie, know guys who are not only here for that, but have sentences exceeding 10 years.  He says those that are here for just that have only pleaded to that, though they actually committed more serious offenses. Baloney.  Here's how that goes - they commit a crime deserving 1 year (for example) and plead "down" to a 4 year sentence, because they're being threatened with a 12 year sentence.  My friends here can't believe that Cotton doesn't know this.

It's not unusual for the feds to concoct 20 charges, and settle for 2. It happens to everyone.  It happened to me.  They are extremely creative in their use of enhancements.  (If the real crime were so heinous, why would they settle for a much lighter sentence?)

And then this - "Presidential pardons are a much better instrument of justice than broad sentencing reductions." Puh-leeze! (I think this ridiculous statement was just a set-up for his snarky shot at Trump.)

Cotton dismisses fiscal conservatives who would hope to reduce the cost of the American prison system. "The costs," he says, "of crime ... far outweigh the downsides of putting serious criminals behind bars."  That all depends on what you consider to be "serious" criminals, and how you calculate the "downsides".  At my camp, the common consensus is that the average age here is 50+.  That includes quite a few in their 70s, and about 3 or 4 in their 80s. Maybe a dozen use canes.  The financial distress on families and the negative economic impact on communities would certainly be part of the calculation of the "downsides", as would unquantifiable costs such as the loss of adult children to care for aged and debilitated parents.  Certainly also there's a tremendous cost to communities who have lost key employees and employers, volunteers to non-profits, etc.  There's a 80 yr old oncologist/researcher who's here due to a financial transgression of a side company he was a partner to.

As to his closing assertion that "mandatory minimums .... work", there is a great body of research that would show otherwise.  I, for one, would love to see a poll taken of federal judges as to the truth of that statement.

Sen. Cotton ends his diatribe against prison reform, the kind that might actually reduce the prison population, with an affirmation of "faith-based and other antirecidivism programs".  I heartily concur, in fact, I wish everyone would embrace the teaching of the Bible. In it we read this great truth - "For judgment will be without mercy to anyone who has shown no mercy; mercy triumph over judgment." (James 2.13)

If that is deemed as soft on crime, we need to deeply consider where we are heading.

August 24, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Prisons and prisoners, Reentry and community supervision, Who Sentences | Permalink | Comments (15)

Will Prez Trump deliver on all the clemency "tidal wave" of hopefulness he has engendered?

The question in the title of this post is prompted by this notable recent article in the Washington Examiner headlined "MLK niece urges clemency 'tidal wave' after giving White House list of names." Here are excerpts: 

Evangelical leader Alveda King says she’s optimistic that President Trump will unleash a “good tidal wave” of clemency after she delivered to the White House a list of nearly 100 prisoners who she wants Trump to release.

The niece of Martin Luther King Jr. participated in an Aug. 1 discussion between Trump and African-American pastors and left behind her list of names with the office of the presidential adviser and son-in-law Jared Kushner.

King, a supporter of Trump and leader of the anti-abortion group Civil Rights for the Unborn, declined to provide a copy of her list, citing the potential sensitivity of clemency decisions, and would not discuss specific details about her interactions at the White House. “I did not, on purpose, count or remember the names, I just submitted the list,” King told the Washington Examiner. “I’m trying to get a good tidal wave, a positive tidal wave, a tidal wave to maybe change things and make things better.”

King wants to see a "jubilee" or mass awarding of clemency and said there are misperceptions about what’s happening behind the scenes. She said it’s her understanding that the White House, through Kushner’s office, is processing recommendations in an orderly manner.

Trump has used his constitutional clemency powers nine times — releasing four inmates, two with pardons, and issuing post-release pardons to five others — almost always at the urging of celebrities or political allies, giving the impression of haphazard grants based on influencer requests.

But King said she believes the White House has in place a process for reviewing a deluge of recommendations following the June release of Alice Johnson, a drug conspiracy convict who Trump released at the urging of reality TV star Kim Kardashian. Trump unleashed tremendous enthusiasm behind bars by releasing Johnson, and then declaring: "There will be more pardons. ... I want to do people that are unfairly treated like an Alice."

There were signs of increasing internal work on clemency applications at about the time Johnson was released. Days earlier, White House counsel Don McGahn called a right-leaning policy advocate and asked him to assemble lists of worthy clemency aspirants. The outside contact gathered names from the CAN-DO Foundation and Families Against Mandatory Minimums and hand-delivered the lists to McGahn and Kushner.

Some policy advocates have urged Trump to create an in-house clemency commission that would supplement the work of the Justice Department’s Office of the Pardon Attorney, which clemency advocates view as ineffectual and biased in favor of prosecutors. But so far, no official in-house review process has been announced....

“It’s not disorder, it’s a very orderly process. … I'm a person who believes in order, and I believe they have a good system in place," King said. "I didn’t try to go in and put a list in the president’s hands. ... You can get it to Jared Kushner’s office, and they will look at it."

Angela Stanton, a former prison inmate, author, and King’s goddaughter, took the lead in assembling King's list. She said that inmates who already served more than 10 years in prison were given priority. “Everybody deserves to get out and everybody deserves a second chance,” Stanton said. “The majority of these people decided to go to trial, and if they had not gone to trial, they would have been home.”

A couple names on the list already were submitted to the White House, such as Michelle West, 25 years into a life sentence for drug-related crimes, and paralyzed inmate Michael Pelletier, 12 years into a life sentence for smuggling Canadian marijuana into Maine.  Others were profiled in a New York University report featuring inmates left behind by an Obama administration push to shorten drug sentences, including Lavonne Roach, a mother of three who is 20 years into a 30-year methamphetamine sentence; Chad Marks, who is more than a decade into a 40-year sentence for drug dealing; David Barren, 10 years into a 30-year cocaine sentence; and Craig Cesal, who since 2003 has been serving a life sentence for marijuana crimes.

The report referenced above is this 36-page document produced by the Center on the Administration of Criminal Law at NYU Law School under the title "The Mercy Lottery: A Review of the Obama Administration’s Clemency Initiative."  I am very pleased to see that report being used to generate a list of good clemency candidate, though I sense that the Trump White House has heard from lots of different folks in lots of different ways about lots of different clemency possibilities.  That reality leads me back to the question in the title of this post: because there is no shortage of good clemency candidates in the federal system, the only thing really holding back a clemency "tidal wave" is the person sitting in the Oval Office.  

August 24, 2018 in Clemency and Pardons, Criminal justice in the Trump Administration, Sentences Reconsidered, Who Sentences | Permalink | Comments (4)

August 23, 2018

"Young Adults and Criminal Jurisdiction"

The title of this post is the title of this new paper by Kevin Lapp now available via SSRN. Here is its abstract:

As measured by developmental biology, cultural markers, and self-perception, adolescence is longer today than it has ever been in human history, with leading psychologists asserting that it lasts into the mid-twenties.  This Article considers whether the extension of adolescence requires changing the allocation of criminal jurisdiction over young adults aged eighteen to twenty-five.  It explores three possible responses: (1) keeping young adults within general jurisdiction criminal courts with greater accommodations, (2) expanding juvenile court jurisdiction beyond age seventeen, and (3) creating specialized Young Adult courts.

The Article argues that criminal court’s emphasis on punishment and incapacitation are ill-suited to the individualized interventions that best serve the public’s long-term interest in safety and best promote a successful transition to adulthood.  Expanding juvenile court jurisdiction would make its rehabilitative approach available to young adult offenders who, like juveniles, are not yet fully-developed adults.  But it would also mean the loss of important procedural rights and a paternalistic, inquisitorial, interventionist approach that is not appropriate for young adults.

Specialized courts dedicated to eighteen to twenty-five year-olds offer a developmentally-informed response at the front and back end of cases without unduly complicating the work of the juvenile court, avoid potential due process and rights problems, and communicate to these offenders that they are worthy of something other than punitive, assembly-line treatment as criminals.  That said, creating young adult courts across the nation faces several challenges and carries potential drawbacks for those diverted to young adult court and for the remainder left behind in criminal court.

August 23, 2018 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Prez Trump reportedly has decided he will not support federal criminal justice bill before mid-term election

This new Axios piece has a depressing headline: "Scoop: Trump won't endorse criminal justice bill before midterms."  Here are all the reported details:

President Trump has stymied a plan to push prison and sentencing reform before the midterms, according to an administration source with direct knowledge. In a White House meeting on Thursday afternoon, Trump decided that the compromise package that Jared Kushner, Sen. Chuck Grassley and others have been advocating for is too politically difficult to endorse before the elections, the source told Axios.

Why it matters: Without the president backing the bill, which might have reduced some mandatory minimum sentences for certain drug crimes and sent around 4,000 prisoners home, it has zero chance of getting a vote before the midterms. Senate leadership was already reluctant to bring it up for a vote. The collapse of the bill is a win for opponents of the package, including law-and-order hardliners Sen. Tom Cotton and Attorney General Jeff Sessions.

As noted in this prior post, Politico has already been reporting that the Senate was not going to vote on any criminal justice reform bill until after the election.  But I suppose it was possible Prez Trump might want to push forward; indeed, some commentators, as noted here and here, have suggested it would be politically wise for Trump to campaign for reform in the run-up to the election.  Ultimately, this decision by Trump provides even more basis to worry that it will continue to be a heavy slog to get sentencing reform as well as prison reform to the President's desk.

Some of many prior recent related posts:

UPDATE: This new Washington Post article reports on today's White House meeting on criminal justice reform efforts under the headline "GOP senator: Trump backs tenets of compromise on criminal-justice reform." The report suggests that both proponents and opponents of reform think Prez Trump is on their side.  The article seems to confirm that reform is not going to get done before the mid-term election.  

August 23, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (0)

Reality Winner's agreed-upon (and record-long and below-guideline) 63 month sentence for leaking classified information becomes a reality

In this post a few months ago, I wondered about how Reality Winner, the former Air Force linguist prosecuted for leaking classified information, came to an agreement with federal prosecutors that fixed her federal sentence at 63 months in prison."   This local article, headlined "Reality Winner receives record-setting prison sentence," reports on the sentencing promised in this plea agreement becoming a reality. Here are some details:

Reality Winner on Thursday received a record-setting prison sentence — five years and three months behind bars — for leaking a top-secret government report about Russian meddling in the 2016 election. “I sincerely apologize and take full responsibility for my actions,” the former National Security Agency contractor told Chief U.S. District Court Judge J. Randal Hall in a federal court in Augusta. “In particular, I want to apologize to my family.”

Bobby Christine, U.S. attorney for the Southern District of Georgia, told reporters after the sentence hearing that the government had determined Winner’s actions “caused exceptionally grave damage to U.S. national security.”

“That harm,” he said, “included but was not limited to impairing the ability of the United States to acquire foreign intelligence information similar to the information disclosed.”

“Make no mistake, this was not a victimless crime,” he also said. “Winner’s purposeful violation put our nation’s security at risk, not in a speculative way or hypothetical way but in a very real way, a very direct way.”

Like the judge in the case, Christine said Winner’s sentence is meant to serve as a deterrent. “Winner will serve a term of incarceration that will give pause to others who are entrusted with our country’s sensitive national security information and would consider compromising it,” he said. “Anyone else who may think of committing such an egregious and damaging wrong should think both of the prison sentence imposed today and the very real damage done.”

Winner faced up to 10 years in prison for her crime. But her plea deal with prosecutors called for her to serve five years and three months behind bars. That is longer than anyone else has been sentenced for an “unauthorized disclosure to the media,” federal prosecutors said in a court filing this month. Both Winner’s attorneys and the prosecutors urged Hall to agree to the sentence spelled out in her plea deal.

“The government advises the court that despite the agreed-upon sentence being below the applicable guidelines range, it would be the longest sentence served by a federal defendant for an unauthorized disclosure to the media,” the prosecutors said in their court filing.

The prosecutors added avoiding a trial would prevent them from having to reveal sensitive government information in court. “The agreement reflects a fair resolution of the defendant’s criminal culpability, especially when balanced against the further harm to the national security that would likely result from a trial,” the prosecutors said.

The prosecutors also cited several other similar federal cases in which defendants received shorter prison sentences. In 2013, former FBI bomb technician Donald Sachtleben was sentenced to 43 months in prison for leaking classified information to the Associated Press about a foiled bomb plot in Yemen. That same year, former CIA officer John Kiriakou was given a 30-month sentence for revealing to a freelance journalist the identity of an undercover CIA agent. Two years later, former CIA officer Jeffrey Sterling got a 42-month sentence for leaking to The New York Times classified information about a secret operation to disrupt Iran’s nuclear weapons program.

Winner, 26, the prosecutors said, mailed a copy of a NSA document to The Intercept, an online publication. The Intercept published an article based on the report, saying Russian military intelligence sent spear-phishing emails to more than 100 local election officials and launched a cyberattack against a Florida-based voting software supplier that contracts in eight states.

The Press Freedom Defense Fund, which provides legal support to journalists and whistleblowers and is a program of The Intercept’s parent company, called Winner’s sentence “completely unjust.” “Demonstrating her passion for her country, she heroically — at great personal risk — alerted fellow Americans to vital information that Russia had tampered with the 2016 U.S. elections,” said the Press Freedom Defense Fund, which helped with the appeal of whistleblower Chelsea Manning, a former soldier convicted of violating the Espionage Act. “Her selfless act makes her a true patriot, not a criminal.”

Prior related post:

So how was it decided Reality Winner should get 63 months for leaking classified information? Does it seem about right? 

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

US Sentencing Commission finalizes its priorities for coming year

As reported in this USSC press release, the "United States Sentencing Commission today approved a list of policy priorities for the coming year, including expansion of several multi-year projects examining sentencing practices and their outcomes within the federal system."  Here is more from the release:

As its top priority, the Commission announced that it will continue its multi-year examination of the current federal sentencing structure. Circuit Judge William H. Pryor Jr., Acting Chair of the Commission remarked, “This amendment year, the Commission will research the differences in sentencing practices that have emerged across districts, within districts, and, in some cases, within courthouses under the advisory guidelines system.”  Since 2014, the Commission has explored avenues to simplify and strengthen the guidelines and bring greater certainty to sentencing.

For the third consecutive year, the Commission also set as a priority the adoption of a uniform definition of “crime of violence.”  In 2016, the Commission revised the guideline definition of a “crime of violence” and published several key findings and statutory recommendations in its 2016 Report to Congress on Career Offender Sentencing Enhancements.

In its public comment, the Department of Justice raised several application issues that have arisen since the Commission’s 2016 amendment, including the meaning of “robbery” and “extortion.”  In addition, the Department raised issues arising from the treatment of inchoate offenses and offenses involving an offer to sell a controlled substance. The Commission intends to address these concerns during this amendment cycle.  In response to additional concerns raised by the Department and the significant litigation brought about by the “categorical approach,” the Commission also will consider possible amendments to section 4B1.2 to allow courts to consider the actual conduct of the defendant in determining whether an offense is a crime of violence or a controlled substance offense.

The Commission will also continue to study recidivism outcomes among federal offenders as well as the use of mandatory minimum penalties in the federal system. Over the past two years, the Commission released eight reports on those topics.  This amendment year, additional recidivism reports will be released. The Commission will also issue reports on the use of mandatory minimums in cases involving identity theft and sex offenses.

Judge Pryor observed, “The Commission has a unique statutory responsibility to act at the intersection of all three branches of government as a clearinghouse of federal sentencing data.  We are pleased that the Commission's research and data has proven useful to ongoing sentencing policy deliberations, and we remain prepared to work with Congress to implement our recommendations should Congress decide to act.”

In light of the Supreme Court’s decision in Koons v. United States, the Commission will also consider application issues related to the calculation of retroactive sentence reductions for certain offenders convicted of mandatory minimum penalties.

The Commission will also study revocations, such as those for technical violations, and their impact on criminal history. Finally, the Commission will determine how to implement recent legislation into the guidelines.

August 23, 2018 in Federal Sentencing Guidelines, Who Sentences | Permalink | Comments (0)

Prez Trump advocating for a whole new kind of sentencing reform: he says cooperation deals "almost ought to be outlawed. It’s not fair."

This New York Post piece, headlined "Trump says flipping should be ‘outlawed’ after Cohen plea deal," reports on some notable new comments about the operation of the criminal justice system by Prez Donald Trump this morning.  Here are the details:

President Trump said his former lawyer Michael Cohen “lied” to get a “better deal” with federal prosecutors to reduce his jail time — and suggested that “flipping” should be outlawed.

“You get 10 years in jail, but if you say bad things about somebody in other words, make up stories if you don’t know.  Make up.  They just make up lies. I’ve seen it many times,” the president told “Fox & Friends” in an interview that aired Thursday.

“For 30, 40 years I’ve been watching flippers.  Everything’s wonderful and then they get 10 years in jail and they — they flip on whoever the next highest one is, or as high as you can go,” he said about Cohen, who pleaded to eight felony counts in Manhattan federal court on Tuesday.

“It almost ought to be outlawed. It’s not fair,” Trump continued.

Cohen was facing 65 years behind bars on the charges, but is expected to get a reduced sentence because of the plea deal. Trump said that “in all fairness” to Cohen, “most people are going to do that.”  The president also tried to distance himself from Cohen, who worked for more than 10 years for Trump and was known as a confidant and “fixer” who once said he’d take a “bullet” for Trump.

“He was a lawyer for me, one of many,” the president said.  “You know, they always say, ‘the lawyer,’ and then they like to add ‘the fixer.’” Well, I don’t know if he was a ‘fixer.’ I don’t know where that term came from,” Trump said in the interview.  “But he’s been a lawyer for me. Didn’t do big deals, did small deals. Not somebody that was with me that much.”

He said he would see Cohen “sometimes” but on big deals Trump said “outside lawyers” and “inside lawyers” would take part. “You know, they make it sound like I didn’t live with — without him. I understood Michael Cohen very well. He — well, it turned out he wasn’t a very good lawyer, frankly.”

Two of the charges Cohen pleaded to involved hush-money payments made before the 2016 election to two women who alleged they had affairs with Trump between 2006 and 2007, a possible violation of campaign finance laws. Cohen paid $130,000 to former porn star Stormy Daniels, whose real name is Stephanie Clifford, and arranged for $150,000 to be paid to the parent company of the National Enquirer to keep Karen McDougal’s story under wraps.

Trump said he didn’t know about the payments until “later on” even though Cohen has a tape of him and the president discussing them. “Later on I knew. Later on. What he did — and they weren’t taken out of the campaign finance, that’s the big thing. That’s a much bigger thing,” Trump said. “Did they come out of the campaign? They didn’t come out of the campaign, they came from me.”

Prez Trump is entirely right that cooperation deals can often result in false testimony and can produce considerable unfairness.  In fact, Prez Trump's staff should have urged him to cite Alexandra Natapoff's great book, "Snitching: Criminal Informants and the Erosion of American Justice," in conjunction with his complaints.  Here is a bit of the description of that book:

Although it is nearly invisible to the public, criminal snitching has invaded the American legal system in risky and sometimes shocking ways. Snitching is the first comprehensive analysis of this powerful and problematic practice, in which informant deals generate unreliable evidence, allow criminals to escape punishment, endanger the innocent, compromise the integrity of police work, and exacerbate tension between police and poor urban residents.  Driven by dozens of real-life stories and debacles, the book exposes the social destruction that snitching can cause in high-crime African American neighborhoods, and how using criminal informants renders our entire penal process more secretive and less fair. Natapoff also uncovers the farreaching legal, political, and cultural significance of snitching: from the war on drugs to hip hop music, from the FBI’s mishandling of its murderous mafia informants to the new surge in white collar and terrorism informing.

I doubt that Prez Trump is serious about advocating for the prohibition of cooperation deals, and I am certain few in Congress or elsewhere would even consider seriously the reforms proposed in Natapoff's book.  But if Prez Trump really cares about the unfairness and other problems that can be created by cooperation deals, there is a whole lot he could and should do right away.  First and foremost, he should express opposition to all mandatory minimum sentencing provisions (or at least suppose reforms like the Justice Safety Valve Act) because the threat of a significant mandatory minimum prison term often creates the most extreme pressure to deal and cooperate.  Second and on-going, he could and should consider focusing at least part of his (supposed) interest in broad use of clemency powers to those persons seemingly most unfairly convicted and sentenced based on questionable evidence coming from cooperators.

UPDATE: Alexandra Natapoff has this new post reacting to the President's comments, and here are her insights:

The irony is that Trump is attacking snitching for its greatest strength: it enables law enforcement to investigate and prosecute the wealthy, the powerful, and the politically insulated.  Think of the Enron prosecution, or the dismantling of the mafia, neither of which could have happened without cooperation deals.  Also ironically, Trump is criticizing informant use in its least problematic incarnation. When Trump's "many friends" become defendants and informants, they will be well represented and informed about their rights and options, while their cooperation deals will be recorded, vetted, and publicly scrutinized.  Most informants, and most defendants faced with snitch testimony, will get none of these protections. It is precisely here in the white collar and high profile political context that cooperation is best regulated, most accountable and transparent, and thus least problematic.

To be sure, there are many reasons to agree that snitching "should almost be illegal."  It leads to wrongful convictions; it tolerates the crimes committed by informants; it coerces the most vulnerable and rewards the most culpable. It promotes government secrecy, rule breaking, and sometimes corruption.  But its potential to hold powerful people accountable is its best feature.

August 23, 2018 in Criminal justice in the Trump Administration, Federal Sentencing Guidelines, Procedure and Proof at Sentencing | Permalink | Comments (4)

August 22, 2018

"Felon-Jurors in Vacationland: A Field Study of Transformative Civic Engagement in Maine"

The title of this post is the title of this new article authored by James Binnall. Here is the abstract:

Maine is the only jurisdiction in the United States that places no limitations on a convicted felon’s juror eligibility.  Instead, Maine screens prospective felon-jurors using their normal jury selection procedures. In recent years, scholars have suggested that meaningful community engagement can help facilitate former offenders’ reintegration and criminal desistance.  From that theoretical posture, a number of empirical studies have explored the connection between participation in the electorate and the reentry of former offenders. Those studies suggest that voting has the potential to prompt pro-social changes among former offenders.  Still, to date, no research has focused on jury service as a form of civic inclusion that may foster successful reintegration and criminal desistance.

Drawing on data derived from a large-scale field study in Maine, the present article addresses this research void, arguing that the jury is perfectly positioned as a tool for change, employable by jurisdictions seeking to facilitate the successful reentry of former offenders.  This article further notes that Maine is the only U.S. jurisdiction that has exploited this transformative power of the jury process. 

August 22, 2018 in Collateral consequences, Reentry and community supervision | Permalink | Comments (2)

Lots more news and notes and commentary about federal criminal justice reform efforts ... including report of no Senate vote until after election

Here in no particular order is a too-quick round-up of some of the notable stories and commentaries I have seen this week as the debate over federal prison and sentencing reform continues to heat up:

UPDATE: Here are a few more pieces on this front worth checking out, including perhaps the most tangibly significant in the form of the Politico piece that the Senate will not move forward on a vote until after the November election:

August 22, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

What might and will nationwide prisoner strike achieve?

Npssticker02The question in the title of this post is prompted by this USA Today report on a notable movement by many prisoners nationwide under the headline "Prisoners nationwide go on strike to protest 'modern-day slavery'."  Here are the basics:

Prison inmates nationwide, seeking to put pressure on the country's penal system, began a two-week strike on Tuesday. The strike was timed to begin on the anniversary of the killing of jailed African American activist George Jackson. He was killed by a guard in 1971 after taking guards and two inmates hostage in a bid to escape from San Quentin State Prison in California.

The final day of the strike — Sept. 9 — also carries symbolism. That's the day in 1971 that the Attica Prison riots began in New York, eventually leaving more than 40 people dead when police stormed in to re-take the facility.

Prisoners leading the protests say the strike is aimed at ending what they call "modern-day slavery." Inmates complain they are paid pennies on the dollar per hour for labor. This is made legal by an exemption in the 13th Amendment which allows involuntary servitude for those who convicted of crimes in the United States.

The event is spearheaded by Jailhouse Lawyers Speak, a network of imprisoned prisoner rights advocates based out of Lee Correctional Institution in South Carolina and supported by the Incarcerated Workers Organizing Committee (IWOC), a prisoner-led trade group. Inmates plan to abstain from reporting to their assigned jobs, halt commissary spending, hold peaceful sit-in protests and refuse to eat during the strike.

“Prisoner participation depends on their location and privilege status,” said Amani Sawari, a prison reform activist and spokesperson for the strike. “If inmates are working they can suffocate the prison industrial complex by reducing their spending. In some detention facilities, prisoners may not be working so they might do a sit-in. It all depends.”

The call for action comes as a response to a prison riot that took place in Lee Correctional Institution in South Carolina in April of this year, resulting in the death of seven inmates and injuring of over a dozen others. Inmates posted videos on social media showing the aftermath at the budget-strapped prison....

The prisoners released a list of 10 demands on the IWOC website that include, in part, the immediate improvement of prison policies, an increase in prisoner wages and rescinding laws that prevent imprisoned persons from having a chance at parole. The inmates also call for more rehabilitation services and voting rights.

Prisons in at least 17 states are expected to participate in the protests, according to Sawari, with a majority of them located in the South and West Coast. On Aug. 21, U.S. cities participating will include Seattle; Portland, Oregon; Sacramento, California; San Jose, California; Corona, California; Los Angeles; Phoenix; Omaha, Nebraska; San Antonio, Texas; Asheville, North Carolina; Black Mountain, North Carolina; Atlanta; Fort Lauderdale, Florida; Des Moines, Iowa; Chicago; Columbus, Ohio; Minneapolis; Philadelphia; Boston; and Brooklyn, New York.

Experts say there is a chance the protest may drive change in some detention centers. "If the strike is widespread enough, it could be effective," said Lea Johnson, professor of law at the University of Florida's Levin College of Law. "These circumstances like poor labor conditions, poor prison conditions, unpaid labor, and lack of access to mental health treatment exist seemingly behind closed doors. By going on a national strike, you pull back the curtain and it can force legislators to act."

August 22, 2018 in Prisons and prisoners, Who Sentences | Permalink | Comments (1)

August 21, 2018

Michael Cohen, Prez Trump's fixer, cuts a plea deal to fix his federal sentence between 46 to 63 months in federal prison

As reported here by USA Today, "Donald Trump's former personal lawyer and 'fixer' Michael Cohen, has pleaded guilty to charges including campaign finance fraud stemming from hush money payments to porn actress Stormy Daniels and ex-Playboy model Karen McDougal." Here is more (with a little sentencing emphasis):

The 51-year-old Cohen entered the plea in federal court in New York on Tuesday. The other charges involve bank fraud and income tax evasion.  As part of his plea agreement, Cohen agreed not to challenge any sentence from 46 to 63 months.

Cohen's plea follows months of scrutiny from federal investigations and a falling out with the president, whom he previously said he'd "take a bullet" for. FBI raids in April sought bank records, communications with Trump's campaign and information on payments to Daniels and McDougal. Both women claimed Trump had affairs with them, which he denies.

The deal comes after reports that federal investigators were looking into whether Cohen committed bank and tax fraud worth more than $20 million, according to a media report. The New York Times, citing anonymous sources, said authorities were focusing on loans obtained for taxi businesses owned by Cohen and his family.

Investigators were also considering whether Cohen had violated campaign finance and other laws when he made financial arrangements to pay women to stay silent about alleged affairs with then-candidate Trump back in 2016.... Prosecutors had reportedly considered filing charges against Cohen by the end of August.

I have not yet seen the plea agreement (which I hope will soon be publicly available), but I assume from the line stressed above that the guideline calculation puts Cohen's offense level at least 23 under the federal sentencing guidelines. The guideline range for a first offender is 46-57 months at level 23 and is 51-63 months at level 24. The bottom and top of these ranges seem to be the basis for the range reportedly in Cohen's plea deal (and this shows, yet again, how the guidelines are always an integral part of plea negotiations and why I consider every federal sentence to be "based on" the guidelines in some way or another).

UPDATE: The folks at Lawfare now have collected here the criminal information, waiver of indictment and plea agreement in US v. Michael Cohen.  The eight-page plea agreement has lots of interesting sentencing elements, and here is language (from pp. 4-5) confirming my speculations above and highlighting why there will be no departure discussions but lots of 3553(a) discussion as sentencing approaches:

Based upon the calculations set forth above, the defendant's Guidelines range is either 51 to 63 months' imprisonment under the Government's calculations, or 46 to 57 months' imprisonment under the defendant's calculations. Accordingly, the stipulated Guidelines range is 46 to 63 months' imprisonment (the "Stipulated Guidelines Range")....

The parties agree that neither a downward nor an upward departure from the Stipulated Guidelines Range set forth above is warranted.  Accordingly, neither party will seek any departure or adjustment pursuant to the Guidelines that is not set forth herein. Nor will either party in any way suggest that the Probation Office or the Court consider such a departure or adjustment under the Guidelines.

The parties agree that either party may seek a sentence outside of the Stipulated Guidelines Range based upon the factors to be considered in imposing a sentence pursuant to Title 18, United States Code, Section 3553(a).

August 21, 2018 in Celebrity sentencings, Federal Sentencing Guidelines, Procedure and Proof at Sentencing, White-collar sentencing | Permalink | Comments (11)

Paul Manafort found guilty of 8 of 18 counts ... and now faces real possibility of spending many years in federal prison

As the Washington Post reports here, a "jury has found former Trump campaign chairman Paul Manafort guilty after a three-week trial on tax and bank fraud charges — a major if not complete victory for special counsel Robert S. Mueller III as he continues to investigate the president’s associates." Here is more:

The jury convicted Manafort on eight of the 18 counts against him. The jury said it was deadlocked on the other 10. U.S. District Court Judge T.S. Ellis declared a mistrial on those other charges. Manafort was convicted on five counts of filing false tax returns, one count of not filing a required IRS form, and two bank fraud counts....

The 18 charges in the Manafort trial centered around Manafort’s personal finances, and had little to do with the special counsel’s mandate of probing Russian interference in the 2016 election and whether any Trump associates conspired with those efforts. But the trial was the first to emerge from Mueller’s probe, and as such it marked a significant public test of his work. The jury deliberated for four days before announcing its verdict.

Over two weeks of testimony, more than two dozen witnesses, including his former right hand man Rick Gates, as well as his former bookkeeper and accountants, testified against Manafort. They said he hid millions of dollars in foreign bank accounts that went unreported to the IRS, and then later lied to banks in order to get millions of dollars in loans.

His lawyers had argued that Gates, not Manafort, was the real criminal, pointing to Gates’ admitted lies, theft, and infidelity. Gates pleaded guilty in February to lying to the FBI and conspiring against the United States, and has said he hopes to get a lesser prison sentence by cooperating against Manafort.

Prosecutors, in turn, told the jury that the most compelling evidence in the case were the dozens of documents, many of them emails, showing Manafort oversaw the false statements to the IRS and banks. Manafort, 69, called no witnesses at all, as his lawyer argued prosecutors had failed to prove beyond a reasonable doubt that he intended to defraud the government or banks. Manafort’s lawyers repeatedly suggested their client might not have known the law.

The trial featured heated arguments at times — not between the government and defense lawyers, but between U.S. District Judge T.S. Ellis and prosecutors. The judge repeatedly chided prosecutors in front of the jury, though at the end of the trial he urged the panel not to consider during deliberations any opinions he may have expressed.

Manafort faces a second trial in September in Washington DC, on charges that he failed to register as a lobbyist for the Ukraine government, and conspired to tamper with witnesses in that case. Manafort has been in jail since June as a result of the witness tampering charges....

Prosecutors charge that from 2010 to 2014, Manafort hid more than $15 million from the IRS — money he made as a political consultant in Ukraine. When that income ended in 2014, authorities charge Manafort lied to banks to get millions of dollars more in loans to support his extravagant lifestyle.

I speculated in this post from last year around the time of his indictment that Manifort could be looking at a decade in prison or longer following a conviction based on the large loss amounts connected to various charges.  This split verdict does not change my prediction that the significant amounts of money involved here means Manafort will be facing a significant guideline range at sentencing.  But his advanced age (and some of the behavior by the trial judge) leads me to think he might have a real shot at securing a below-guideline (but still substantial) sentence.

I expect some white-collar sentencing gurus might already have a sense of the guideline range that Manafort will be facing, and I will be interested to see sentencing arguments unfold in many arenas (including perhaps Twitter) in the coming weeks and months.  Of course, I welcome commentors sharing their take on what they think Manafort will get and should get for his crimes.

Prior related posts:

August 21, 2018 in Celebrity sentencings, Federal Sentencing Guidelines, White-collar sentencing | Permalink | Comments (14)

Still more on Senator Cotton's efforts to thwart significant federal criminal justice reforms and responses there to

In posts late last week here and here, I noted the commentary from Senator Tom Cotton attacking the federal criminal justice reform bills moving through Congress and some responses it has already engendered.  Now Politico has this new article on this beat headlined "Sentencing reform tests Cotton’s sway with Trump."  Here are a few highlights from a lengthy article:

Tom Cotton is going all out to defeat a last-ditch effort to pass sentencing reform before this year’s midterm elections, hoping to win a high-stakes influence campaign over President Donald Trump on the issue.

Cotton is lambasting the proposal as a “jailbreak” that would “let serious felons back on the streets,” taking on a daunting coalition fighting for the package that includes the Koch political operation, White House adviser Jared Kushner and a number of powerful GOP senators. But Cotton believes that, in the end, President Trump and Senate Majority Leader Mitch McConnell (R-Ky.) will side with him.

“The president went to Singapore and agreed with the Singaporeans that we should give the death penalty to drug dealers. I can’t imagine the president wants to reduce mandatory minimum sentences for drug dealers,” the Arkansas Republican said in an interview. “I believe Sen. McConnell shares my view that we should not let serious felons out of jail and we should not shorten the sentences for drug dealers.”

Even opponents of sentencing reform will privately admit it would likely pass if McConnell brings it up. But Cotton’s loud opposition may determine whether or not McConnell even allows a vote given his reluctance to summon up legislation that divides the conference — right before the election, no less....

The conflict is pitting some of Trump’s closest allies against each other. On one side are Cotton and Sen. David Perdue (R-Ga.), who calls the sentencing component “troubling” and wants to concentrate on prison reform. On the other are Sen. Rand Paul (R-Ky.), who wants to go even further on criminal justice reform but would be willing to accept the slimmed-down proposal, and Sen. Lindsey Graham (R-S.C.), who supports it....

Though the president supports the standalone prison reform effort, no one is quite sure where exactly Trump is going to come down on the sentencing piece that’s being added by Senate Judiciary Chairman Chuck Grassley (R-Iowa). Advocates for sentencing reform are hoping the president will offer a crucial endorsement to get the legislation across the finish line after commuting the sentence of Alice Johnson for drug offenses, while opponents say he’s unlikely to undercut his law-and-order persona....

“There is not a constituency, certainly among Republican voters, to let serious felons out of prison or slash their prison sentences,” Cotton said in the interview. “It’s ill-advised policy and even more ill-advised timing.” Countered Paul, another close Trump ally with opposing views: “We have a lot of non-violent criminals in our prison and they’re taking up space that could be better put to use for violent criminals."

Cotton also has strong allies, including Attorney General Jeff Sessions, who has long opposed sweeping sentencing reforms. The two have frustrated people working on the bill.

Yet many on the law enforcement side, a key Trump constituency, are working with Cotton. Jonathan Thompson, the National Sheriff Association's executive director, has spoken to the president twice about sentencing reform in the past year and half: “The president knows we’re concerned.” “We think what he’s doing is terrific. Sen. Cotton recognizes that it’s a very flawed bill,” said Larry Leiser, president of the National Association of Assistant U.S. Attorneys. “We’re hopeful the president won’t [endorse it].”

Unless Trump makes a major push for the legislation and takes on his critics like Cotton, there are many reasons for McConnell not to bring up the bill before the election. It would likely take at least a week for the Senate to process, time that McConnell might think is better spent processing lifetime judicial appointments ahead of an uncertain midterm outcome. Plus it would invoke an ugly intraparty foodfight, squaring Cotton off with proponents of sentencing reform like Grassley, who has been tweeting that the president “wants something done on prison/crim justice reform. So do I.”

“The consensus is the prison reform stuff,” said Senate Majority Whip John Cornyn (R-Texas). “There are people who want to do more, but it’s the usual issue: Do you want try and do more and fail, or do you want to do what’s possible?”

Despite the long odds, the battle is raging behind the scenes. Internal discussions of the subject at Senate lunches have been heated, according to Republican sources, a preview of what might happen on the Senate floor if the chamber takes it up. It’s the same dynamic that kept McConnell from bringing up a larger criminal justice reform package in 2016 as Cotton railed against it and declared the United States has an "under-incarceration problem.”

Trump’s “for prison reform, I’m for prison reform. What I don’t support is sentencing reductions under the guise of prison reforms, and that’s unfortunately what many senators are moving towards,” Cotton said in the interview. A number of conservative senators have quietly expressed their opposition to the sentencing reform component, according to groups working to defeat it. But Cotton's taken a bigger gamble by getting out front to stop a bill that hasn’t even produced yet.

Meanwhile, over here at the Daily Signal, John G. Malcolm and Brett Tolman have this lengthy new commentary under the headline "Why It’s Not ‘Soft On Crime’ to Support Criminal Justice Reform." Here is a snippet focused on mandatory minimums:

Cotton and others argue that mandatory minimum charges are reserved for kingpins and other major drug dealers, and low-level dealers are rarely subjected to mandatory minimum penalties. However, the U.S. Sentencing Commission, a bipartisan independent agency that collects and analyzes federal sentencing data, found that a surprisingly large number of low-level drug couriers are subjected to mandatory minimum penalties.

It is easy to see how that happens. Under federal law, a defendant charged as part of a drug conspiracy—even a low-level courier, who may be acting solely to support his own addiction—can be charged and sentenced based on the total amount of drugs sold by everyone who participated in that conspiracy. That’s true even if the courier never knew who these people were or what quantity of drugs they sold.

Of course, the courier should be punished. But how badly? Remember, we are talking about mandatory minimum penalties. A judge can always impose a higher sentence, up to the statutory maximum, for deserving drug traffickers and violent criminals. The proposed reductions are, in truth, quite modest.

Senators are currently debating the possibility of reducing the mandatory minimum penalties for second-time drug offenders from 20 years to 15 years, and for third-time drug offenders from life in prison without the possibility of parole to 25 years. Does anyone really think that minimum penalties of 15 and 25 years are not serious? 

Some of many prior recent related posts:

August 21, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Mandatory minimum sentencing statutes, Prisons and prisoners, Procedure and Proof at Sentencing, Reentry and community supervision, Who Sentences | Permalink | Comments (0)

"Punishing Criminals for Their Conduct: A Return to Reason for the Armed Career Criminal Act"

The title of this post is the title of this timely new paper now available via SSRN authored by Sheldon Evans.  Here is the abstract:

For over twenty-five years, the Armed Career Criminal Act has produced inconsistent results and has taxed judicial economy perhaps more than any other federal sentencing mechanism.  This recidivist sentencing enhancement is meant to punish habitual criminals based on their numerous past crimes, but the Supreme Court’s application of the Act too often allows habitual criminals to escape the intended enhancement on a legal technicality.  This comes as a result of the Court’s categorical approach, which punishes habitual criminal offenders based on the statutory elements of their past crimes rather than the conduct of their past crimes.

In an effort to find solutions for this ailing doctrine, this Article analyzes how states have structured their own recidivist sentencing laws to avoid the same problems wreaking havoc in the federal courts.  Of all the state approaches, a conduct-based approach is most promising because of its practical application and ideological consistency.  Moreover, the many roadblocks articulated by the Court over the years that have supposedly prevented it from taking a conduct-based approach are overcome after considering the constitutional and practical sentencing landscape.

August 21, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter | Permalink | Comments (0)

August 20, 2018

Texas jury convicts doctor of raping incapacitated patient ... then sentences him to probation for 10 years

It is sometimes assumed that having juries impose sentences will produce harsher outcomes, but a recent rape case from Texas provides an example of a jury imposing only a non-prison sentence after returning a guilty verdict in a rape case.  This Houston Chronicle story, headlined "Many surprised at sentence for ex-Baylor doctor who raped a Houston hospital patient." Here are some of the details:

When a former Houston doctor was sentenced to probation Friday for raping an incapacitated patient at a county hospital, the punishment surprised defense attorneys, disappointed law enforcement, elicited concern from a rape victims advocacy group and sparked outrage on social media.

The doctor, who has been stripped of his license, admitted during the trial that he had sexual contact with the woman during the night shift at Ben Taub Hospital in 2013, but told jurors it was consensual. Although he was not assigned to her case, he slipped into her room anyway after he noticed her breast implants....

The jury five women and seven men sentenced Dr. Shafeeq Sheikh, a former Baylor College of Medicine resident, to 10 years on probation for raping the patient while she was tethered to machines and receiving treatment for an acute asthma attack.

The jurors found Sheikh guilty Thursday after deliberating for 14 hours over two days.  The conviction means Sheikh, 46, must be a registered for the rest of his life as a sex offender. Jurors recommended the 10-year probated sentence for the doctor and suspension of a $10,000 fine after deliberations on Friday, recommendations that visiting Senior District Judge Terry L. Flenniken was required by law to follow.

During argument for the sentencing phase of the trial Friday, Assistant District Attorney Lauren Reeder asked jurors to keep in mind that Sheikh exploited his access to harm a vulnerable person. “He sought her out. He chose her to prey on,” Reeder said, noting that Sheikh checked the woman’s chart and knew exactly what medicines she had been prescribed. “You know he’s the type of man who would go in multiple times, testing the waters, seeing how far he could go and get back to his normal business after that.”...

Sheikh’s defense lawyer, Stanley Schneider, asked the jury to have mercy on a man whose wife and children had suffered greatly from his actions and who had been punishing himself for five years for this one shameful, erratic act. He said he hoped they would sentence Sheikh, who has no prior felonies, to probation. “The dreams of a man, the childhood dream to become a doctor, were shattered by his conduct. He destroyed his own dreams,” Schneider said. “What he has done to himself and his family is punishment. They are serving his sentence with him. His children are serving his sentence with him.”...

Prosecutors respect the process that rendered the result, said Dane Schiller, a spokesman for District Attorney Kim Ogg. “After being presented all the evidence, the jury convicted this man of rape and decided that he should be sentenced to 10 years of probation,” Schiller said. “The jury voted on behalf of the community to determine his sentence, and although prosecutors sought prison time, we respect this process, and the jury’s decision, which carries with it a lifetime of registering as a sex offender.”...

Both the victim, who is now 32, and the former doctor took the stand during the eight-day trial, providing contradictory accounts of what happened the night of Nov. 2, 2013. The victim said a doctor came to her bedside in the dark and began touching her breasts during a chest exam. She said she was weak, sore and confused, and tried to summon a nurse with the call button. The man returned two more times, and raped her without using a condom.

Sheikh said the patient took his hand and placed it on her breasts. He was intrigued by her breast implants and returned to her room again. At this point, he testified, she began touching his genitals and demonstrated with her body language that she wanted to have sex with him. He said he knew it was a breach of his marriage vows and the Hippocratic oath, but he succumbed to his impulse. He told jurors he understood that it was consensual sex....

One factor that could have impacted what some saw as a lenient sentence was the testimony from his wife, brother and family friends, who spoke about his vital role as the father of four children. Attorney Paul Schiffer, a former prosecutor who has devoted more than four decades to defending people charged with sex offenses, said he thought Sheikh was fortunate.  “Defendants who take the stand and deny they’re guilty statistically are in a worse position to get probation,” Schiffer said. “But various factors, including their history while on bond and the impact incarceration could have on their own children can be a significant factor.”

He and Kiernan, who also defends people accused of rape, said it also may have been the case that jurors had residual doubt about his culpability. Kiernan suggested there was another important factor jurors may have mulled over. “The real question is whether the best interest of the defendant and society are served by sentencing him to the penitentiary,” he said.

In trying to understand this outcome, I wonder if the jury might also have been influenced by the fact that the defendant here is subject to a lifetime on the sex offender registry.  (I assume Texas law allows the jury to be informed of this fact; judges certainly know this fact when deciding on a sentence in a serious sex offense case.)

August 20, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences | Permalink | Comments (12)

"America’s Favorite Antidote: Drug-Induced Homicide in the Age of the Overdose Crisis"

The title of this post is the title of this notable and timely new paper authored by Leo Beletsky and now available via SSRN.  Here is its abstract:

Nearing the end of its second decade, the overdose crisis in the United States has gone from bad to worse.  Despite the advent of a supposed “public health” approach to this epidemic, progress on scaling up evidence-based prevention and response measures remains slow.  Meanwhile, criminal law and its enforcement continue to dominate the arsenal of policies invoked to address the crisis.

This Article examines the surging popularity of one such approach. Now on the books in the majority of U.S. states and federally, drug-induced homicide laws and their analogues implicate dealers in accidental overdose fatalities.  By engaging criminal law theory and empirical legal research, I articulate an interdisciplinary instrumentalist critique of these measures in response to the overdose crisis.  Data systematically extracted from reports on 263 drug-induced homicide prosecutions informs concerns about facial and as-applied defects.  Patterns identified suggest rapid, accelerating diffusion in these prosecutions in many hard-hit jurisdictions; pronounced enforcement and sentencing disparities by race; and broad misclassification of drug-using partners, family members, and others as “dealers.”

Aside from crowding out evidence-based interventions and investments, these prosecutions run at complete cross-purposes to efforts that encourage witnesses to summon lifesaving help during overdose events.  This analysis illustrates an urgent opportunity to critically re-assess the architecture and mechanisms of drug control in the U.S., reframing criminal justice reform as a public health imperative vital to improving the response to the worst drug crisis in America’s history.

UPDATE: Over at The Crime Report, this short report discusses this article under the headline "Prosecuting Dealers for Opioid Deaths Called ‘Bad Justice Policy’."

August 20, 2018 in Data on sentencing, Drug Offense Sentencing, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (1)

Exploring what neuroscience may mean for criminal justice

Last week brought these two notable pieces in response to some recent research on psychology, neuroscience and the law.  Here are links and brief excerpts:

From Andrew Calderson at The Marshall Project, "Dangerous Brain: Can neuroscience predict how likely someone is to commit another crime?"

Over the past two decades, brain scans and other neuroscientific evidence have become commonplace in courtrooms. So much so that a defendant can file an “ineffective assistance of counsel” claim if his or her lawyer fails to introduce relevant brain tests. And defense lawyers ordinarily submit brain imaging to bolster claims of their clients’ incompetency or insanity.

Still some legal scholars and attorneys decry the growing presence of neuroscience in courtrooms, calling it a “double-edged sword” that either unduly exonerates defendants or marks them as irredeemable future dangers. “But that’s not right,” said Deborah Denno, a professor and director of the Neuroscience and Law Center at Fordham University Law School, who conducted an analysis of every criminal case that used neuroscientific evidence from 1992 to 2012.  Her analysis showed that brain evidence is typically introduced to aid fact-finding with more “complete, reliable, and precise information.”  She also showed that it is rarely used to support arguments of future dangerousness.

To date, neuroprediction has not been admitted into the courtroom or parole hearings. Some scholars, like Thomas Nadelhoffer, a fellow at the Kenan Institute for Ethics at Duke University, who popularized the term neuroprediction, argue that the science is reliable enough to integrate with other risk assessments.

From Dane Stallone at The Crime Report, "How Neuroscience is Reforming Criminal Justice"

In the courtroom, testimony or evidence about abnormalities or damage to a defendant’s brain has been used to assess the level of responsibility for criminal behavior. But new research into how the brain works is contributing to innovative strategies for reducing recidivism and developing alternatives to incarceration.

The Mind Research Network, a non-profit based in Albuquerque, N.M., has been on the forefront of discovering how the brains of psychopaths and violent offenders differ from the average person’s.  Psychopaths make up a substantial part of prison population and are 20 to 25 times more likely to be in prison than non-psychopaths.  Dr. Kent Kiehl, a lead researcher for the network, says the research can help target appropriate treatment for example, for youths who have demonstrated violent behavioral traits.  “This will improve our ability to predict which kids are high-risk, and how to individually tailor treatment to help kids change,” he told The Crime Report

August 20, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Technocorrections | Permalink | Comments (2)

August 19, 2018

Could enhanced FIRST STEP Act get more than 90 votes in the Senate if even brought up for a vote?

The question in the title of this post is prompted by this Hill piece from late Friday headlined "Sentencing reform deal heats up, pitting Trump against reliable allies." Here are excerpts (with emphasis added):

Negotiations on a criminal justice reform bill are pitting President Trump against some of his closest allies on Capitol Hill.

Sen. Tom Cotton (R-Ark.) sent a public warning shot to the White House this week, writing in a Wall Street Journal op-ed that Trump should not support a “jailbreak” by reducing mandatory minimum sentences. “That foolish approach is not criminal justice reform. … [It would] undercut President Trump’s campaign promise to restore law and order,” Cotton wrote.

Besides Cotton, other reliable allies of the White House, including Senate Majority Whip John Cornyn (R-Texas), are opposing the administration’s approach, which would combine a House-passed prison reform bill with changes to sentencing and mandatory minimums that have wide, bipartisan support in the Senate.

Supporters say completing the bill would give the administration a needed win heading into November's midterm elections. Cotton argues it would make Trump and the GOP look weak on crime.

White House officials and supporters of a deal have been talking with Republican holdouts to try to convince them to back the proposed compromise, which they say would add roughly four sentencing reform provisions into the House bill, which currently focuses on recidivism and not sentencing laws. The pending agreement is expected to add into the House bill lower mandatory minimum sentences for nonviolent drug convictions and more exceptions for judges on applying mandatory minimums. It would also let judges avoid doubling up on convictions for drug offenders facing simultaneous charges, and retroactively apply the 2010 Fair Sentencing Act, which is aimed at reducing the disparity between cocaine- and crack-related offenses.

A senior White House official said they had received largely positive feedback and have 30 to 32 locked down “yes” votes among Republican senators. The official offered hope that the number of GOP supporters could eventually grow as many as 40 to 46. “We're hopeful that we'll be able to bring everybody together to get this to a place where we have ... most of the Republicans ready to vote for it,” the official said...

Supporters are moving forward and trying to build support within the GOP conference, signaling they view Cotton as a surmountable outlier. “I view it like the handful of people who are trying to obstruct are kind of giving it their best shot and, again, at the end of the day, I think facts usually overcome scare tactics,” the senior White House official said.

If Cotton’s op-ed was meant to build opposition to the potential deal within the Senate Republican Conference, officials suggested it appeared to have backfired. The senior White House official said that nearly a dozen Republican senators had reached out in wake of the Wall Street Journal article to say they didn’t agree with Cotton. A second White House official confirmed the outreach.

But opposition from a small, but vocal, group of critics has been a years-long roadblock for criminal justice reform in the Senate, where GOP leadership has been reluctant to put a spotlight on intra-caucus fights.

In addition to Cotton, Sen. David Perdue (R-Ga.), Sen. Orrin Hatch (R-Utah) and then-Sen. Jeff Sessions (R-Ala.) threatened to do everything within their power to block a 2015 criminal justice reform bill, which had the support of the White House. Hatch has since come on board with criminal justice legislation, and Sessions is now attorney general. Senate Judiciary Committee Chairman Charles Grassley (R-Iowa) has warned him to “stay out” of the negotiations....

Republicans won’t be able to pass a criminal justice deal on their own. A separate Senate bill, spearheaded by Grassley and Durbin, has the support of 32 senators, including Democrats like Sens. Kamala Harris (Calif.) and Cory Booker (N.J.). The White House is hoping electoral politics won’t get in the way of them supporting the pending agreement. “[If] people vote against it, I think it would just be really bad vote for them because this bill does a lot of good things,” the senior White House official said of potential Democratic opposition....

Trump held an event on prison reform last week, and at a White House meeting earlier this month signaled support for criminal justice reform. The senior White House official said that while negotiations are ongoing and no final decision has been made, “there is a very strong chance” the president will support the final package.

“[That] means that a lot of the people will want to be with him on it,” the official said. “And again, they know that the president's very tough on crime and if he's supporting something then they know it's not going to be a soft on crime bill.”

But Cornyn appeared skeptical that Trump, despite his deep popularity with GOP voters, would be able to change the dynamics in the Senate. “I don’t think people are going to change their strongly held positions on the sentencing reform part,” he said. “So my goal is to achieve what’s possible."

Riffing on the quote from Senator Cornyn, it seems quite possible that 45 Senators or more from both parties will be inclined to support whatever version of the FIRST STEP Act gets to the floor of the Senate with the President's support.  As I said in a recent post here, and as this article confirms, the problem now is not getting enough votes in support of reform but rather on getting congressional leadership to settle on the particulars of a bill and finally allowing a vote on the Senate floor.

As the GOP heads into a challenging mid-term election, I think and hope that many members would see the FIRST STEP Act as an opportunity to demonstrate bipartisan leadership. And maybe, as he headline of this interesting Bustle article suggest, Prez Trump could have another one of his kids involved in advocacy efforts here: "Tiffany Trump's Georgetown Work Shows She Has An Interest In Criminal Justice Reform Too."  

Some of many prior recent related posts:

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