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September 1, 2018

Could Gov Jerry Brown really be tempted to commute all of California's death row on his way out of office?

The question in the title of this post is prompted by this recent Fox News article headlined with a similar question, "Will Jerry Brown commute sentences of every death row inmate in one of his last acts as California governor?". Here are excerpts:

[A]s Jerry Brown’s tenure as governor of California draws to a close in January, capital punishment supporters have raised the specter that he could commute many, if not all, of the sentences.

On March 28, California’s Supreme Court issued an administrative order making it possible for Brown to commute the sentences or grant clemency.

Michele Hanisee, president of the Association of Deputy District Attorneys in Los Angeles County, told the Orange County Register earlier this week that this removes any impediment Brown may have faced. Before that, a governor had to get the approval of the majority of the state Supreme Court in the case of an inmate with two or more felony convictions. “They basically have green-lighted the governor to grant clemency to anyone…and said they won’t interfere,” she said.

California has the largest death row population in the country, but only 13 have been executed since capital punishment was reintroduced to the state in 1978, with the last one occurring in 2006. Appeals that drag out for many years are common. Last year, there were 400 death penalty appeals pending.

Despite its liberal reputation, more than half of California’s residents have expressed support for the death penalty, striking down referenda calling for it to end.

Brown, a former Jesuit seminarian who as a young man demonstrated against capital punishment, made his opposition to it clear during his political campaigns, but also said he’d respect the law regarding it while serving as attorney general and governor.

Asked if the governor was considering commuting death sentences, a spokesperson for Brown told Fox News: “A request for commutation is a serious matter, and every applicant is carefully and diligently vetted. The Governor issued commutations earlier this month… California inmates can petition to have their sentence reduced or eliminated by applying for a commutation of sentence. To be clear, no individuals on death row have received commutations.”...

Kent Scheidegger, an attorney who argued for Proposition 66 – a measure to speed up executions – said that anything is possible as far as Brown and California politics, but he believed the governor would not commute death sentences. “Despite his personal opinion, he said he’d enforce the death penalty,” said Scheidegger, who is legal director of the Criminal Justice Legal Foundation in California. Scheidegger expressed concern about the state high court’s order appearing to give Brown more sway over commuting death sentences, telling Fox News: “That’s worrisome.”

Since executions rarely have been carried out in California and elsewhere, some have called the death penalty symbolic, and pointless. Scheidegger said he disagrees. “It’s important because there are some crimes for which anything less is simply not justice.”

September 1, 2018 in Clemency and Pardons, Death Penalty Reforms, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

"State Legislatures and Solving the Eighth Amendment Ratchet Puzzle"

The title of this post is the title of this paper recently posts to SSRN and authored by Jeffrey Omar Usman. Here is its abstract:

The United States Supreme Court’s evolving standards of decency jurisprudence has come to be understood as having forged an irreversible one-way ratchet moving only toward greater leniency.  The seemingly irreversible ratchet emerges both from practical challenges for state legislatures in pursuing stricter sanctions under the evolving standards of decency framework of analysis and an underlying assumption that moral evolution in criminal justice only moves towards lesser not greater sanctions.

This Article offers a challenge to the latter assumption, the view that moral evolution can only be towards lesser not greater sanctions being imposed. This Article also attempts to provide a solution to the practical problem of the Eight Amendment ratchet puzzle, rendering reversible the seemingly irreversible ratchet.  In doing so, the Article sets forth two critical mechanisms — contingent legislation and the active use of resolutions — which if utilized by state legislatures will enable them to more effectively engage in a constitutional dialogue with the United States Supreme Court in defining societal evolving standards of decency.

September 1, 2018 in Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

August 31, 2018

"Judging Risk"

The title of this post is the title of this article authored by Brandon Garrett and John Monahan now available via SSRN. Here is its abstract:

Risk assessment plays an increasingly pervasive role in criminal justice in the United States at all stages of the process — from policing, to pre-trial, sentencing, corrections, and parole.  As efforts to reduce mass incarceration have led to adoption of risk-assessment tools, critics have begun to ask whether various instruments in use are valid and whether they might reinforce rather than reduce bias in the criminal justice system.  Such work has largely neglected how decisionmakers use risk assessment in practice.  In this Article, we explore the judging of risk assessment.  We study why decisionmakers so often fail to consistently use quantitative risk assessment tools.

We present the results of a novel set of studies of both judicial decisionmaking and attitudes towards risk assessment.  We studied Virginia because it was the first state to incorporate risk assessment in sentencing guidelines.  Virginia has been hailed as a national model for doing so.  In analyzing sentencing data in Virginia, we find that judicial use of risk assessment is highly variable.  Second, in the first comprehensive survey of its kind, we find judicial attitudes towards risk assessment in sentencing practice quite divided.  Even if, in theory, an instrument can better sort offenders in less need of jail or prison, in practice, decisionmakers may not use it as intended.

Still more fundamentally, in criminal justice, unlike in other areas of the law, one typically does not have detailed regulations concerning the use of risk assessment, specifying the content of assessment criteria, the peer review process, and standards for judicial review.  We make recommendations for how to better convey risk assessment information to judges and other decisionmakers, but also how to structure that decisionmaking based on common assumptions and goals.  We argue that judges and lawmakers must revisit the use of risk assessment in practice.  We conclude by setting out a roadmap for use of risk information in criminal justice.  Unless judges and lawmakers regulate the judging of risk assessment, the risk revolution in criminal justice will not succeed in addressing mass-incarceration.

August 31, 2018 in Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment, Who Sentences | Permalink | Comments (1)

August 30, 2018

Prison chief explains his "non-political approach" to sentencing and prison reforms

John Wetzel, who serves as chair of The Council of State Governments Justice Center, president of the Association of State Correctional Administrators and Secretary of Pennsylvania’s Department of Corrections, has this new Hill commentary under the headline "A non-political approach focused on what works is key to solving prison crisis."  I recommend the piece in full, and here are excerpts:

[W]hile criminal justice reform currently occupies the rarified airspace of being mutually appealing to both sides of the political spectrum at the macro level, there remains a split on whether sentencing reform — the front end of the criminal justice system — should be included as a component of the First Step Act.  As written, the legislation focuses solely on reforms to back end within the Federal Bureau of Prisons.

With the caveat that any improvements to the federal corrections system – even incremental improvements — should be welcomed with open arms, the factual answer is that to realize actual, quantifiable improvement, sentencing reform is essential. It’s easy and common to embrace the notion that recidivism reduction is a back end issue and one owned solely by corrections professionals like me.  This notion is dead wrong.

As a Republican appointed as Secretary of Corrections by a Republican governor (Tom Corbett) and who was asked to continue in the role by a Democratic governor (Tom Wolf), I would argue that good sentencing, and by extension, prison policy, can rise above party politics.

I believe the formula for recidivism reduction is this: Incarcerate the right people for the right amount of time and provide them with the programming they need that specifically addresses the criminogenic factors that led to them committing a crime and, finally, provide the individualized reentry support to start them on a path to good citizenship....

Governor Tom Wolf, in kicking off Pennsylvania’s most recent criminal justice reform initiative, exemplifies the outcomes measure: less crime, fewer victims.  Achieving that goal requires our system to make good decisions every step of the way — from who we incarcerate to how long, including what conditions we incarcerate them in through what supports we offer to restore them to society.

August 30, 2018 in Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment | Permalink | Comments (2)

"Criminal Justice Reform Is on the Midterm Ballot"

The title of this post is the title of this notable new New Republic piece by Matt Ford with the subheadline "Andrew Gillum wants to fix his state's broken carceral system.  He's not alone among Democratic nominees for governor." Here are excerpts:  

In his victory speech, Gillum highlighted an issue that’s received short shrift from Florida policymakers in recent years. “Beneath my name is also a desire by the majority of people in this state to see real criminal-justice reform take hold,” he told a crowd of supporters at his Tuesday night victory rally. “The kind of criminal-justice reform which allows people who make a mistake to be able to redeem themselves from that mistake, return to society, have their right to vote, but also have their right to work.”

The message could apply anywhere in the United States. But it carries greater resonance in Florida, which ranks among the most carceral states in the union. While crime has plummeted nationwide since the early 1990s, Florida’s prison population hasn’t seen significant declines. Instead, the number of people serving more than ten years in prison tripled between 1996 and 2017. Lawmakers abolished parole for most crimes by 1993, which requires the state to keep many prisoners behind bars who don’t pose a danger to society. Even today, the state has shirked the broader reform-oriented trend on both the left and the right.

Gillum has campaigned on a platform that could change that. His campaign’s official site touts measures similar to those adopted in some Democratic-led states, like reducing the number of crimes that carry mandatory-minimum sentences and reforming the cash-bail system, which disproportionately harms lower-income Americans. Others are more bold: Gillum went further than his primary opponents and called for the full legalization, rather than just decriminalization, of marijuana. Though he told reporters he is not an opponent of the death penalty, Gillum said he would suspend executions to address concerns about racial disparities....

Other Democratic gubernatorial candidates have also called for sweeping criminal-justice in their states. Georgia’s Stacey Abrams, who would be the first black woman governor ever elected in America, grounds her approach in the experience of her brother Walter, who has bipolar disorder and developed a drug addiction. Instead of receiving treatment, he and tens of thousands of other Americans with major mental illnesses are regularly churned through the criminal justice system for committing crimes of survival like petty theft. Abrams’s platform focuses on improving alternatives to incarceration and bolstering reentry programs to improve the transition back into society.

Maryland’s Ben Jealous, a former president of the NAACP, would go even further. His platform calls for the full legalization of marijuana, the abolition of cash-bail programs, shifting the state’s parole powers away from the governor’s office and toward independent experts, and expunging criminal records for certain crimes to aid reentry and employment efforts. Among his more significant proposals is a state program to investigate prisoners’ claims of innocence. A commission dedicated to that task in North Carolina secured eight exonerations in its first nine years of existence.

A constant fear among reformers is that the political winds could turn back toward tough-on-crime policies after years of favorable weather. It’s unclear whether that will be a problem in Gillum’s contest against DeSantis. Many GOP elected officials have thrown their weight behind criminal-justice reform to varying degrees in recent years, though it’s unclear if DeSantis counts himself among them. His threadbare campaign issues page doesn’t discuss the issue and his campaign staff hasn’t provided details on the matter to local media outlets. Like Trump, though, he has run as a law-and-order candidate, and seems more likely to emulate the president’s attack on Gillum as a supposed enabler of crime.

In addition to being glad to see this emphasis on some candidates' emphasis on criminal justice reform, the headline of this piece could also be used to describe the significant array of criminal-justice-related ballot initiatives coming before voters this fall. The article does mention that Florida voters will consider a constitutional amendment to eliminate felon disenfranchisement for most former offenders. In addition, Michigan and North Dakota voters will consider full marijuana legalization and Missouri and Utah voters will be considering medical marijuana initiatives. And in my own Ohio, as noted in this prior post, an interesting and intricate drug sentencing and prison reform initiative is on the November 2018 ballot. (Plug: The Drug Enforcement and Policy Center, has this planned series of events to provide a venue for informed discussion of the 2018 Ohio Neighborhood Safety, Drug Treatment, and Rehabilitation Amendment.)

August 30, 2018 in Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Is Jeff Sessions' opposition to modest sentencing reforms going to cost him his job as Attorney General?

The question in the title of this post — which I would answer "I hope so" — is prompted by this Politico article fully headlined "Trump personally lobbying GOP senators to flip on Sessions: Opposition to the attorney general's firing, long seen as a red line by lawmakers, has softened in recent days."  Here is an excerpt from the piece of note to sentencing fans:

The president, who has spent a year and a half fulminating against his attorney general in public, finally got traction on Capitol Hill thanks to the growing frustration of a handful of GOP senators with their former colleague – most importantly, Judiciary Chairman Chuck Grassley and South Carolina’s Lindsey Graham, who have been irritated by Sessions’ opposition to a criminal justice reform bill they support, according to interviews with more than a half-dozen congressional GOP aides, Trump advisers, and Republicans close to the White House....

Over the past week, Trump has belittled Sessions in conversations with several Republican senators, including Graham, and the idea of dismissing him no longer provokes the political anxiety it once did.

Along with Graham and Grassley, Sessions has also alienated presidential son-in-law and adviser Jared Kushner, the chief White House proponent of the Graham-Grassley approach on criminal justice reform, as well as his wife, Ivanka Trump.

After a meeting last week that included Trump, Sessions and Kushner, the White House and McConnell delayed action on the issue until after the midterms. Grassley and other backers of the effort left the meeting hopeful for progress at that point. But Sessions’ office put out a sharply negative statement that suggested the president had come out against any sentencing reform in the legislation.

Holly Harris, a longtime Kentucky GOP strategist pushing for a reform deal from the helm of the nonprofit Justice Action Network, blasted Sessions for an “absolute mischaracterization” of the White Houses stance on the issue. “DOJ is making so many enemies in so many places now that I actually think it’s going to help our legislation. I think they’ve gone way too far,” Harris said, describing Sessions’ actions on the issue as “off the rails.”

The criminal justice issue has been an ongoing sore point between Sessions and Grassley. The House passed a narrower bill in May that doesn’t include changes to sentencing requirements — something Sessions strongly opposes but that Grassley and others, including Graham, have insisted on adding.

When Sessions spoke out against a broader criminal justice bill that the Judiciary Committee passed in February, Grassley publicly dressed him down. “Look at how hard it was for me to get him through committee in the United States Senate,” the senator said then. “And look at, when the president was going to fire him, I went to his defense.”

No longer. Though Grassley had previously said he could not schedule hearing time to confirm a new attorney general, he changed his tune last week. “I do have time for hearings on nominees that the president might send up here that I didn’t have last year,” Grassley said last week.

Prior related post:

UPDATE: This new Bloomberg piece suggests AG Sessions will be in his job at least for the next few month: "Trump Says He’ll Keep Sessions Until November Despite ‘Illegal’ Probe"

August 30, 2018 in Criminal justice in the Trump Administration, Who Sentences | Permalink | Comments (2)

August 29, 2018

Texas jury hands down 15-year prison term after convicting police officer of murder for shooting unarmed teen

As reported by CNN here under the headline "Ex-officer sentenced to 15 years in Texas teen's shooting death," a Texas jury that handed down a notable murder conviction yesterday followed up today with a notable sentencing determination. Here are some details:

A former Texas police officer was sentenced to 15 years in prison Wednesday for the shooting death of an unarmed black teen last year in the Dallas suburbs.

A jury convicted former Balch Springs Officer Roy Oliver, 38, of murder on Tuesday for killing 15-year-old Jordan Edwards.  Jurors returned to court Wednesday for his sentencing, where prosecutors sought at least 60 years, while the defense argued for 20 years or less.

Dallas County District Attorney Faith Johnson called Oliver a "killer in blue" who violated his oath to protect citizens.  Her colleague, Michael Snipes, made the reference to Mr. Hyde, the violent side of Dr. Jekyll in Robert Louis Stevenson's novella.  Defense attorney Bob Gill argued that his client, who fired into a vehicle carrying Edwards had to decide quickly how best to protect his partner.

The rare guilty verdict in the trial of a police officer stunned relatives, prompting gasps and sobs in the courtroom. Most police-involved shooting deaths, such as Philando Castile in Minnesota and Alton Sterling in Louisiana, have ended in acquittals or no charges despite national protests condemning police brutality.  "We don't want another parent to have to go through what this family has had to deal with," Jordan's family attorney, Daryl Washington, said on Tuesday.  "This case is not just about Jordan. It's about Tamir Rice, it's about Walter Scott, it's about Alton Sterling, it's about every African-American... who have been killed and who have not gotten justice."...

Convictions such as Oliver's are still a rarity mostly because when an officer says the person flashed a gun or made a sudden move, jurors tend to side with them, said Kristen Clarke, president and executive director of the Lawyers' Committee for Civil Rights Under Law.  "At the end of day, officers in their badge and uniform enjoy the benefit of the doubt," Clarke said last year....

Few police officers face trial in shooting deaths, and even fewer are convicted.  In December, former South Carolina officer Michael Slager was sentenced to 20 years in federal prison in the 2015 shooting death of Walter Scott. Slager's 2016 state murder trial ended in a mistrial.

August 29, 2018 in Offender Characteristics, Offense Characteristics, Who Sentences | Permalink | Comments (2)

A thorough review of Judge Kavanaugh's criminal case work on the DC CIrcuit

Over at SCOTUSblog, Rory Little has this lengthy post providing a detailed review of Judge Brett Kavanuagh's work in criminal cases over a dozen years on the DC Circuit.  The post should be read in full by all criminal justice fans, and here are some excerpts that highlight the post's themes, along with a few parts likely to be of particular interest to sentencing fans: 

When one also considers that federal appellate judges must follow Supreme Court precedent rather than write or consider it anew, an analysis of Kavanaugh’s relatively sparse work in criminal cases over the past 12 years yields few definitive data points....

In criminal cases, Kavanaugh’s body of work is relatively straightforward and unexciting. He does not often disagree with, and never insults, his colleagues. His opinions are careful and seek to follow precedent; they take few if any legal or stylistic risks.  Meanwhile, Kavanaugh sometimes rules for defendants, occasionally in surprising ways....

Kavanaugh has a particular interest in federal sentencing and the Sentencing Guidelines: It has been said that one’s first love may be the strongest. The first published writing on criminal law by Kavanaugh that I found was a January 2007 concurrence in U.S. v. Henry, in which Kavanaugh joined Garland and Judge Karen Henderson in the reversal of a defendant’s sentence in light of the Supreme Court’s United States v. Booker decision. (Booker was an unusual case in which a five-justice majority ruled that the mandatory federal Sentencing Guidelines structure, just like that of some states, violated the Constitution’s jury trial guarantee – but then a different five-to-four majority ruled that as a remedy, the federal guidelines statute should be construed as discretionary rather than mandatory.) Kavanaugh’s opinion is quite scholarly, noting the “tensions” in Booker’s constitutional analysis.

Kavanaugh went on to manifest concerns about the nuances of federal criminal sentencing in at least eight later writings. Of particular note, he expressed misgivings in Henry, and then again in 2008 (United States v. Settles), and then a third time recently in an en banc concurrence, “about the use of acquitted conduct at sentencing,” which he wrote “seems a dubious infringement of the rights to due process and to a jury trial.”...

Many of Kavanaugh’s rulings can be labeled “pro-defense”: Although some court-observers fear that Kavanaugh’s confirmation could drive the Supreme Court further to “the right,” I found at least eight D.C. Circuit decisions — in addition to the Nwoye “battered women syndrome” case mentioned above — in which Kavanaugh wrote to join a “pro-defendant” ruling....

Although Kavanaugh cannot overall be described as a criminal-law “liberal,” one might call him a “Kennedy-esque” moderate. In sum, Kavanaugh’s writings in traditional criminal-law cases seem unlikely to draw critical fire from any political direction.

Some prior related posts:

August 29, 2018 in Who Sentences | Permalink | Comments (1)

Maryland top court issues lengthy split opinions on application of Eighth Amendment limits on juve life sentences

The Maryland Court of Appeals handed down today a very lengthy opinion addressing the application of Eighth Amendment limits on lengthy juvenile sentences.  The opinion in Carter v. Maryland, Nos. 54 (Md. Aug. 29, 2018) (available here), gets started this way:

It has been said that “mercy without justice is the mother of dissolution; justice without mercy is cruelty.” A sentence of life in prison without parole may be just for certain adult offenders, but the Eighth Amendment’s proscription against cruel and unusual punishments precludes that sentence for a juvenile offender unless the defendant is an incorrigible murderer. Although there need not be a guarantee of release on parole, a sentence imposed on a juvenile offender must provide “some meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”  In this opinion, we consider three cases involving crimes that were committed when each Petitioner was a juvenile.

None of the sentences imposed in these cases was explicitly “life without parole.” In two cases, the Petitioners were sentenced to life with the possibility of parole. In the third case, the Petitioner was sentenced to 100 years incarceration and will not be eligible for parole until he has served approximately 50 years in custody. Each Petitioner asserts that he is effectively serving a sentence of life without parole, because the laws governing parole in Maryland do not provide him with a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”  They have each filed a motion to correct an illegal sentence.

With respect to the two Petitioners serving life sentences, we hold that their sentences are legal as the laws governing parole of inmates serving life sentences in Maryland, including the parole statute, regulations, and a recent executive order adopted by the Governor, on their face allow a juvenile offender serving a life sentence a “meaningful opportunity to obtain release based on demonstrated maturity and rehabilitation.”  We express no opinion as to whether those laws have been, or will be, carried out legally, as that issue is not before us and may be litigated in the future.  With respect to the Petitioner who is serving a 100-year sentence, we hold that the sentence is effectively a sentence of life without parole violative of the Eighth Amendment and that the Petitioner is entitled to be re-sentenced to a legal sentence.

August 29, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

"More Cops, Fewer Prisoners?"

The title of this post is the title of this notable new paper authored by Jacob Kaplan and Aaron Chalfin now available via SSRN. Here is the abstract:

A large literature establishes that hiring police officers leads to reductions in crime and that investments in police are a relatively efficient means of crime control compared to investments in prisons.  One concern, however, is that because police officers make arrests in the course of their duties, police hiring, while relatively efficient, is an inevitable driver of “mass incarceration."  This research considers the dynamics through which police hiring affects downstream incarceration rates.

Using state-level panel data as well county-level data from California, we uncover novel evidence in favor of a potentially unexpected and yet entirely intuitive result — that investments in law enforcement are unlikely to markedly increase state prison populations and may even lead to a modest decrease in the number of state prisoners.  As such, investments in police may, in fact, yield a “double dividend” to society, by reducing incarceration rates as well as crime rates.

August 29, 2018 in Data on sentencing, Scope of Imprisonment | Permalink | Comments (4)

California becomes first state to completely do away with money bail

Though bail is not technically a sentencing issue, the nationwide debate over bail practices has lots of echoes into sentencing and is certainly an important element of wider criminal justice reform movements. Consequently, it seems worth noting this news via the Los Angeles Times under the headline "California Gov. Jerry Brown signs overhaul of bail system, saying now 'rich and poor alike are treated fairly'." Here are some of the details:

California Gov. Jerry Brown on Tuesday signed a landmark bill to overhaul the state’s money-bail system, replacing it with one that grants judges greater power to decide who should remain incarcerated ahead of trial.

The two-year effort fulfills a pledge made by Brown last year when he stalled negotiations over the ambitious legislation, saying he would continue to work with lawmakers and the state’s top Supreme Court justice on the right approach to change the system. The new law puts California at the forefront of a national push to stop courts from imposing a heavy financial burden on defendants before they have faced a jury. “Today, California reforms its bail system so that rich and poor alike are treated fairly,” he said in a statement.

Senate Bill 10 would virtually eliminate the payment of money as a condition of release. Under last-minute changes, judges would have greater power to decide which people are a danger to the community and should be held without any possibility of release in a practice known as “preventive detention.”

Top state officials, judges, probation officers and other proponents of the efforts lauded the new law. Co-authors Sen. Bob Hertzberg (D-Van Nuys) and Assemblyman Rob Bonta (D-Alameda) called it a transformative day for criminal justice, and a shift away from a pretrial system based on wealth to one focused on public safety.

Chief Justice Tani Cantil-Sakauye, who helped craft the legislation through the formation of a judicial task force that spent a year studying the issue, described a three-branch solution to address a money-bail system that “was outdated, unsafe and unfair.”...

But the historic passage of the bill has been bittersweet for lawmakers, as opponents — including some of the bill’s most ardent former supporters — argued the final version of the legislation would allow judges to incarcerate more people based on subjective criteria, and did not include enough oversight over risk-assessment tools found to be biased against communities of color.

“No one should be in jail because they are too poor to afford bail, but neither should they be torn apart from their family because of unjust preventative detention,” said a statement from American Civil Liberties Union directors Abdi Soltani in Northern California, Hector Villagra in Southern California and Norma Chávez Peterson, representing San Diego and Imperial counties....

Under SB 10, counties would have to establish their own pretrial services agencies, which would use “risk-assessment tools,” or analysis, to evaluate people arrested to determine whether, and under what conditions, they should be released. Only people charged with certain low-level, nonviolent misdemeanors — a list of charges that can be further narrowed by county — would be eligible for automatic release within 12 hours of being booked into jail.

All others arrested would have to undergo the risk analysis, a system that would sort defendants based on criminal history and other criteria into low-, medium- or high-risk categories. Courts would be required to release low-level defendants without assigning bail, pending a hearing. Pretrial services offices would decide whether to hold or release medium-risk offenders. Judges would have control over all prisoners in the system.

The new law, which will go into effect on Oct. 1, 2019, is expected to decimate the bail industry. Whether it will lead to higher incarceration rates is unknown because courts don’t track the data that would make such an analysis possible, lawmakers have said. But the law will require courts to collect and report incarceration rates and undergo in 2023 an independent review of the legislation’s impact on the criminal justice system.

Still, in the days before its passage, some criminal-justice-reform groups that once supported the bill worked to kill it, landing on the same side as a bail industry that has worked to sink the bill from the beginning. This week, a delegation of criminal-justice-reform advocates from across the state sent a veto letter to Brown.

The bill “sets up a system that allows judges nearly unlimited discretion to order people accused of crimes, but not convicted and presumptively innocent, to be held in jail with no recourse until their case is resolved,” the letter stated.

August 29, 2018 in Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (4)

Federal defendant unable to get jury to hear "Trump defense" relating to "flipping"

This New York Daily News piece reports on a notable echo from one of President Trump's many notable comments on the law.  The piece is headlined "Attorney for crack dealer tries the President Trump defense: Don't trust snitches," and here are the details:

President Trump’s disgust with snitches is catching on in court. An attorney for a crack dealer began to argue in closing statements last week that a cooperating witness can’t be trusted — but a judge stopped him before he could cite a “presidential tweet.”

“You know what’s funny? Yesterday Manafort was convicted,” Nkrumah said, alluding to the trial of Trump’s campaign chairman Paul Manafort. The Manafort trial featured testimony from a cooperating witness. Nkrumah was immediately stopped due to an objection from the government.

Out of earshot of the jury, Nkrumah explained that he planned to cite Trump’s remark that “It’s called flipping and it almost ought to be illegal.”... “I believe that the president’s opinion of cooperators is just as pertinent as anyone else’s opinion about cooperators,” Nkrumah explained.

Judge Gregory Woods disagreed and prevented Nkrumah from pursuing the argument further to the jury. “I did not permit the defendant to comment on that presidential tweet,” Woods said, apparently referring to a tweet of Trump’s remarks.  He said the Manafort trial had nothing to do with the drug case, and that Trump’s remarks would needlessly inject a “politically charged, polemic issue.”

“I should note the tweet is that it ‘almost ought to be illegal,’ but as we all know, and as I am going to instruct the jury, it is not illegal. And so I was also concerned about the confusion that may be wrought upon these jurors by presenting that as the view of the speaker,” Woods said.

The jury convicted Russell of a charge of conspiracy to deal crack, but acquitted him of the more serious charge of carrying a firearm in connection with dealing the drugs.

Prior related post:

August 29, 2018 in Procedure and Proof at Sentencing | Permalink | Comments (0)

August 28, 2018

"Right at Home: Modeling Sub-Federal Resistance as Criminal Justice Reform"

The title of this post is the title of this notable new paper authored by Trevor George Gardner now available via SSRN.  Here is its abstract:

Over the past two decades, state and local governments have crippled the federal war on marijuana as well as a series of federal initiatives designed to enforce federal immigration law through city and county police departments.  This Article characterizes these and similar events as sub-federal government resistance in service of criminal justice reform.  In keeping with recent sub-federal criminal reform movements, it prescribes a process model of reform consisting of four stages: enforcement abstinence, enforcement nullification, mimicry, and enforcement abolition.

The state and local governments that pass through each of these stages can frustrate the enforcement of federal criminal law while also challenging widely-held assumptions regarding the value of criminal surveillance and criminal sanction.  In promoting sub-federal government empowerment within the framework of criminal federalism, this Article breaks from conventional theories in the criminal law literature regarding the legal and policy strategies most likely to deliver fundamental change in American criminal justice.

August 28, 2018 in Pot Prohibition Issues, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Who Sentences | Permalink | Comments (0)

Deputy AG Rosenstein suggests more federal prosecutions are key to battling opioid crisis ... but that really hasn't been working

Deputy Attorney General Rod Rosenstein has this notable New York Times opinion piece under the headlined "Fight Drug Abuse, Don’t Subsidize It."  Here are is how it starts and ends:

Almost 64,000 Americans died of drug overdoses in 2016, a shocking 54 percent increase since 2012.  Dangerous opioids such as heroin and fentanyl contributed to two-thirds of the deaths.  This killer knows no geographic, socioeconomic or age limits.  It strikes city dwellers and Midwestern farmers, Hollywood celebrities and homeless veterans, grandparents and teenagers.

Remarkably, law enforcement efforts actually declined while deaths were on the rise.  Federal drug prosecutions fell by 23 percent from 2011 to 2016, and the median drug sentence doled out to drug traffickers decreased by 20 percent from 2009 to 2016.  The Trump administration is working to reverse those trends.  Prosecutions of drug traffickers are on the rise, and the surge in overdose deaths is slowing.

Unfortunately, some cities and counties are considering sponsoring centers where drug users can abuse dangerous illegal drugs with government help.  Advocates euphemistically call them “safe injection sites,” but they are very dangerous and would only make the opioid crisis worse.

These centers would be modeled on those operating in Canada and some European countries. They invite visitors to use heroin, fentanyl and other deadly drugs without fear of arrest.  The policy is “B.Y.O.D.” — bring your own drugs — but staff members help people abuse drugs by providing needles and stand ready to resuscitate addicts who overdose....

That is not the way to end the opioid crisis. Americans struggling with addiction need treatment and reduced access to deadly drugs.  They do not need a taxpayer-sponsored haven to shoot up.

To end the drug crisis, we should educate everyone about the dangers of opioid drugs, help drug users get treatment and aggressively prosecute criminals who supply the deadly poison.  Under the leadership of President Trump and Attorney General Jeff Sessions, the Department of Justice is delivering results.  Many federal, state and local agencies are working with us to combat opioid addiction.  Cities and counties should join us and fight drug abuse, not subsidize it.

I am disinclined to take up here the debate over safe injection sites, which could merit a volume.  I will be content here to point to this recent report from Europe indicating "evaluation studies have found an overall positive impact on the communities where these facilities are located," as well as this new meta-research indicating that "Medically Supervised Injection Centres ... had a significant favourable result in relation to drug-related crime and a significant unfavourable result in relation to problematic heroin use or injection." At Vox, German Lopez covers these research matters in this recent article headlined "Safe injection sites were thought to reduce drug overdoses. The research isn’t so clear."

I am inclined to take issue with how DAG Rosenstein seems to make a case for more federal prosecutions to address overdose deaths and the opioid crisis.  Though he laments that "federal drug prosecutions fell by 23 percent from 2011 to 2016, and the median drug sentence doled out to drug traffickers decreased by 20 percent from 2009 to 2016," DAG Rosenstein leaves out the fact that declines in marijuana and crack prosecutions and the impact of fairer crack guidelines account for these realities (see USSC quick facts data on marijuana and crack).  Meanwhile, as this USSC report explains, in "fiscal year 2016, there were 2,763 heroin trafficking offenders [sentenced in federal court, meaning the] number of heroin offenders has increased by 29.4% since fiscal year 2012."  In other words, though overall federal drug prosecutions have gone down through 2016, federal prosecution of heroin has been going up significantly this period when overdose deaths from dangerous opioids were also surging. 

In addition, there is a basis to question the statement that prosecutions of drug traffickers are now on the rise, as this data from TRAC suggests that FY 2017 and 2018 has seen record low numbers of federal drug trafficking prosecutions.  And to assert that the "surge in overdose deaths is slowing" is not all that reassuring given the new preliminary report of 72,000 overdose deaths in 2017 compared to 64,000 in 2016 (though I suppose it is correct to say the "surge" is slowing given that this 8,000-person increase in deaths is less than the 11,000 increase from 2015 to 2016).  Especially at a time of crisis, I sincerely want to believe that, as DAG Rosenstein asserts, the "Department of Justice is delivering results."  But the data I can find does not seem to support this claim.

August 28, 2018 in Criminal justice in the Trump Administration, Drug Offense Sentencing, Who Sentences | Permalink | Comments (2)

"Incapacitating Motherhood"

The title of this post is the title of this new paper authored by Priscilla Ocen now available via SSRN.  Here is its abstract:

Incapacitation, the removal of dangerous people from society, is one of the most significant penal rationales in the United States.  Mass incarceration emerged as one of the most striking applications of this theory, as policymakers shifted from rehabilitative efforts toward incapacitation in jails and prisons across the country . Women have been uniquely devastated by this shift toward incapacitation.  Indeed, the United States is home to the largest and fastest growing women’s prison population in the world.

Of the women incarcerated in jails and prisons, nearly seventy percent were the primary caretakers of small children at the time of their arrest and approximately eighty percent are of reproductive age. Notwithstanding these alarming trends, the gendered dimensions of incapacitation have largely been underexplored in the scholarly literature. Rather, women’s incarceration has been theorized as an unintended consequence of the punitiveness directed toward Black men.

This Article aims to bridge this discursive gap by highlighting the specific ways in which incapacitation has been used as a means to regulate the bodies and reproductive capacities of marginalized women.  The Article advances this claim in three ways. First, by mapping the historical function of women’s prisons as a mechanism to restore and regulate “fallen women” who deviated from traditional norms associated with femininity and motherhood.  Second, by examining the ways in which contemporary women’s prisons similarly regulate women’s identities as mothers.  Instead of attempting to rehabilitate women, however, contemporary women’s prisons incapacitate women who engage in behavior or possess characteristics that diverge from traditional maternal norms.  Indeed, through what the Article terms the “incapacitation of motherhood,” women prisoners are alienated from their children, denied reproductive care, humiliated during pregnancy and postpartum recovery, and in some cases, sterilized. 

Lastly, contesting these practices and the incapacitation of motherhood, this Article calls for the use of a robust legal framework, informed by the principles of reproductive justice that are more protective of the reproductive capacities of incarcerated women.

August 28, 2018 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

August 27, 2018

"Capital and punishment: Resource scarcity increases endorsement of the death penalty"

The title of this post is the title of this new paper in the journal Evolution and Human Behavior authored by Keelah Williams, Ashley Votruba, Steven Neuberg, and Michael Saks. Here is its abstract:

Faced with punishing severe offenders, why do some prefer imprisonment whereas others impose death?  Previous research exploring death penalty attitudes has primarily focused on individual and cultural factors.  Adopting a functional perspective, we propose that environmental features may also shape our punishment strategies.  Individuals are attuned to the availability of resources within their environments.  Due to heightened concerns with the costliness of repeated offending, we hypothesize that individuals tend towards elimination-focused punishments during times of perceived scarcity.

Using global and United States data sets (studies 1 and 2), we find that indicators of resource scarcity predict the presence of capital punishment.  In two experiments (studies 3 and 4), we find that activating concerns about scarcity causes people to increase their endorsement for capital punishment, and this effect is statistically mediated by a reduced willingness to risk repeated offenses.  Perceived resource scarcity shapes our punishment preferences, with important policy implications.

August 27, 2018 in Death Penalty Reforms, Purposes of Punishment and Sentencing, Who Sentences | Permalink | Comments (0)

A notable (and curious?) call for criminal justice reform that serves as another sign of new political times

The passing of John McCain this weekend led me to review some of my long ago postings in the blog topic archive labelled Campaign 2008 and sentencing issues.  The main theme I kept returning to is how little discussion there was of criminal justice issues during that election cycle.  Here are links to a few of the 2008 posts on that theme: 

Other posts in that archive that might still be considered notable a decade later include Rudy Giuliani doing robocalls accusing Senator Obama of being soft on crime and Is Senator Clinton to the right of Justice Scalia on sentencing issues?.  (This last post has me thinking again about the fact that Hillary Clinton's criminal justice history makes her seem much more like a member of the "tough and tougher" crowd than many (most?) members of the current GOP.   Hillary Clinton in 2007 (in)famously opposed making retroactive the first small crack guideline amendments passed by the US Sentencing Commission, most of the GOP seemingly now supports making the 2010 Fair Sentencing Act fully retroactive.)

Of course, circa 2018, there is a heck of a lot more talk about criminal justice reform from an array of political candidates in all parties.  And I noticed this morning this interesting (and somewhat curious) commentary by Beto O'Rourke, a Texas congressman taking on Ted Cruz for election to the US Senate, under the headline "O’Rourke: Texas should lead the way on true criminal justice reform." I recommend the piece in full, and here are excerpts:

On Wednesday, I toured the Harris County Jail with Sheriff Ed Gonzalez and met men from this community who have made a mistake from which they may or may not recover. Men who don’t have the resources to post bail.  Some of whom got arrested on purpose to get the treatment and care they need, care they won’t be able to afford or access on the outside.  In fact, the Harris County Jail is the largest provider of mental health services in our state, a state that is the least insured in the nation. Of the 10,000 inmates in the Harris County Jail, one quarter of them are being prescribed at least one psychotropic medication.  The jail has more people receiving psychiatric treatment every day than the nine state mental hospitals in Texas combined.

But beyond those who need health care, there are many more languishing behind bars for nonviolent crimes — sixty percent yet to even be convicted. Unable to work, to pay taxes, to raise their kids, to contribute to our society, to realize their full potential.  And it’s happening at the average cost of $87 per person, per day, and more than $400 per person, per day for prisoners requiring medication or medical treatment.  That tab is ultimately picked up by the taxpayers of Harris County.

The jail I visited is not an outlier.  Rather, it is part of the world’s largest prison population.  One that is disproportionately comprised of people of color, though we know that people of all races use illegal drugs at roughly the same rate. Many have called this the New Jim Crow, and for good reason.  One in four black children have had a parent in the criminal justice system, compared to just four percent of white children. That rate is nearly two times what it was in the 1980s.  And it begins with a school-to-prison pipeline that starts as early as kindergarten, where a black child is four to five times as likely to be suspended or expelled as a white child.

Following my visit, I am more convinced than ever that Texas can and must take the lead in building a criminal justice system that is more fair and that urgently puts our country closer to the words written above the highest court in our land: equal justice under law.  This is how I propose we do it.

First, we should eliminate private, for-profit prisons from our justice system.  Locking someone up is a power that should be reserved for our government, not outsourced to corporations that have the perverse incentive of getting more people behind bars so that there are more profits for their shareholders.

Second, we need to end the failed war on drugs that has long been a war on people, waged on some people over other people.  Who is going to be the last man — more likely than not a black man — to languish behind bars for possessing or using marijuana when it is legal in more than half of the states in this country?  We should end the federal prohibition on marijuana and expunge the records of those who were locked away for possessing it, ensuring that they can get work, finish their education, contribute to their full potential and to the greatness of this country.

Third, we must stop using mandatory minimum sentencing for non-violent drug offenses — a practice that costs taxpayers dearly and destroys lives in the process by locking up people who could safely re-enter society. And we replace this practice with policies that begin treating addiction like the public health concern it is.

Fourth, we can end the current use of bail bonds that punish people for being poor.  This is a tactic that wastes resources on incarcerating those who are not a threat to anyone, not a flight risk, not likely to be repeat offenders. In the Harris County Jail, it’s estimated that 500 to 600 of the inmates at any given time fit this description — in for misdemeanors but without the resources to post bail as I did more than twenty years ago.

Finally, we should provide meaningful reentry to help cut down on recidivism for those who committed non-violent crimes. That starts with strong rehabilitation services, counseling and access to preventative health care. It continues by banning the box on job applications so those formerly incarcerated can work and pay taxes, returning drivers licenses so they can get to that place of employment, allowing them to apply for loans that can unlock skills trainings, and ensuring their constitutional right to participate in civic life by voting is protected....

Giving low-level offenders a second chance no matter the color of their skin or the economic status they hold can create opportunity for all of us. It will help build a future that is more just, more fair, and more prosperous for every single person in this state and this country. It is time for Texas to lead the way.

I call this commentary "curious: because O'Rourke is talking about his experience touring a local jail while running for federal office, and he makes no mention of current federal proposals like the FIRST STEP Act. Senator Ted Cruz has been resistant to some federal sentencing reforms proposed even by the GOP, and I would think candidate O'Rourke could and should seek to clearly distinguish his position from that of his opponent. Moveover, as students of modern criminal justice know, it is a bit curious to call for "Texas to lead the way" in criminal justice reform because, to a large extent, Texas already has starting the the mid 2000s when the state turned away from building more prisons and invested in more alternatives to incarceration.

Curious particulars notwithstanding, it is still heartening that our modern political times have evolved to the point that prominent candidates in the Lone Star State are eager to talk at length about improving Texas justice (even when a candidate is seeking a federal office).

August 27, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Lots of notable pieces in August 2018 issue of Criminology & Public Policy

I just saw the contents of the August 2018 issue of the journal Criminology & Public Policy, and now I have at least half-dozen new pieces to add to my reading list. The issue has collections of pieces on timely topics such as "Risk Assessment And Juvenile Justice" and "Victim Compensation And White -Collar Crime" and "Downsizing Our Prisons And Jails" and "Prison Length Of Stay And Recidivism." Here are just a few of the article on these topics that seem worth checking out:

August 27, 2018 in Prisons and prisoners, Recommended reading, Scope of Imprisonment, Who Sentences | Permalink | Comments (0)

August 26, 2018

"Trauma and Sentencing: The Case for Mitigating Penalty for Childhood Physical and Sexual Abuse"

The title of this post is the title of this new paper available via SSRN authored by Mirko Bagaric, Gabrielle Wolf and Peter Isham. Here is its abstract:

People who lack guidance when they are young have an increased risk of committing crimes.  The nurturing that many people receive during their formative years can play a key role in the development of appropriate values and behavior.  Yet there is a reluctance to acknowledge the diminished culpability of offenders who have lacked appropriate guidance during their childhood because it is feared that doing so might be perceived as justifying criminal behavior and hence leading to more crime.  The Federal Sentencing Guidelines expressly state that lack of guidance as a youth should not be a mitigating sentencing consideration.  Despite this, approximately half of all federal judges believe that it should reduce the harshness of the penalty that is imposed on offenders. 

In this Article, we examine whether lack of guidance as a youth should serve to reduce the severity of criminal sanctions.  In doing so, we also discuss the position in Australia where an offender’s neglected upbringing can mitigate his or her penalty.  We conclude that a neglected youth should not of itself mitigate penalty because this would make sentencing law too obscure and uncertain.  There is not even an approximate line that can be drawn to demarcate the boundaries between appropriate and inadequate guidance as a youth. 

However, experiences that are commonly associated with being neglected during childhood and often profoundly set back the mental and/or emotional state of children, namely being subjected to physical or sexual abuse, are more concrete in nature and should be a mitigating factor in sentencing.  Empirical evidence demonstrates that people who are subjected to such trauma in their childhood years have an increased risk of subsequently engaging in harmful behavior, such as criminal activity.  Further, relatively clear criteria can be established to demarcate the scope and application of these experiences during childhood for sentencing purposes.  Reforming the law to make childhood sexual and physical abuse a mitigating consideration would improve the doctrinal coherency of the law and may have the incidental benefit of reducing sentences for female offenders generally and for offenders from socio-economically deprived backgrounds, including African Americans.  This reform could be implemented in a manner that does not compromise community safety, provided that it is complemented by targeted, effective rehabilitative measures.

August 26, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (4)