« September 16, 2018 - September 22, 2018 | Main | September 30, 2018 - October 6, 2018 »

September 28, 2018

"Incapacitating Criminal Corporations"

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

If there is any consensus in the fractious debates over corporate punishment, it is this: a corporation cannot be imprisoned, incarcerated, jailed, or otherwise locked up. Whatever fiction the criminal law entertains about corporate personhood, having an actual “body to kick” — and, by extension, a body to throw into prison — is not one of them. The ambition of this project is not to reject this obvious point, but rather to challenge the less-obvious claim it has come to represent: incapacitation, despite long being a textbook justification for punishing individuals, does not bear on the criminal law of corporations.

In this Article, I argue that incapacitation both can and should serve as a justification for punishing criminal corporations.  Descriptively, I interrogate how rote appeals to the impossibility of corporate imprisonment obscure more pressing, challenging questions about whether and to what extent the criminal law can vindicate an account of incapacitation that extends to corporate persons.  Excavating a richer conceptual framework for incapacitation from our practices of individual punishment, I demonstrate that sanctions we already impose in or just outside the criminal law can be better understood as efforts to incapacitate, rather than to deter or rehabilitate, a criminal corporation. Indeed, reevaluating our understanding of penal incapacitation provides reason to think that we have similar and perhaps stronger reasons for incapacitating corporate persons than we do individuals.

Prescriptively, I leverage this comparative framework to argue that incapacitation should be recognized as a core justification for corporate punishment.  Although rehabilitation has gained traction in past decades as a basis for punishing corporations, incapacitation stands as a more realistic, more administrable, alternative.  This is because a principle of rehabilitation has led to a practice of imposing on corporations intricately designed, but dubiously effective, compliance and internal governance reforms.  Incapacitation, by contrast, lends itself to clear, discrete prohibitions for which the criminal law is better situated to justify, impose, and monitor.

September 28, 2018 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (0)

September 27, 2018

Dare I create an open thread for comments on a (sure-to-be-historic) day of overload?

I am likely not to have any time for blogging over the next couple of days because of this exciting event taking place in my building that my Drug Enforcement and Policy Center is helping to host:

"From Punishment to Public Health: Embracing Evidence-Based Solutions to End the Overdose Crisis" (September 27-28 in Columbus, OH):  This conference aims to explore the impact of criminal justice laws and policies in compounding drug use harms, including overdose deaths, and offer an alternative framework for addressing problematic drug use and drug-related fatalities that is rooted in evidence, compassion, and the principles of harm reduction. More details about and registration for this event are available here and here.

Fortunately nothing else significant is happening in the legal world today (joking, of course). 

I presume I will get (too many) news alerts on my phone about anything consequential that happens during the latest round of Kavanaugh hearings or during the planned meeting between Prez Trump and Deputy AG Rod Rosenstein.  But, at the risk of creating an extra place for people to say silly things on the internet, I figured it might make sense to create an open thread here for any thoughtful comments on any of the day's sure-to-be-historic events. 

I have not blogged much about the SCOTUS confirmation mess because the story is a bit off-topic and covered aplenty elsewhere.  But perhaps sentencing fans and readers have (respectful) "hot takes" on what we have seen so far or concerning what is in store int he coming hours and days.  If so, feel free to share.

September 27, 2018 in Who Sentences | Permalink | Comments (12)

"'You Miss So Much When You’re Gone': The Lasting Harm of Jailing Mothers Before Trial in Oklahoma"

Download (20)The title of this post is the title of this big new report produced by Human Rights Watch and the ACLU. Here is part of the report's starting summary:

Every day in Oklahoma, women are arrested and incarcerated in local jails waiting — sometimes for weeks, months, a year, or more — for the disposition of their cases.  Most of these women are mothers with minor children.

Drawing from more than 160 interviews with jailed and formerly jailed mothers, substitute caregivers, children, attorneys, service providers, advocates, jail officials, and child welfare employees, this report shows how pretrial detention can snowball into never-ending family separation as mothers navigate court systems and insurmountable financial burdens assessed by courts, jails, and child welfare services....

While most women admitted to jails are accused of minor crimes, the consequences of pretrial incarceration can be devastating.  This report finds that jailed mothers often feel an added, and unique, pressure to plead guilty so that they can return home to parent their children and resume their lives.  These mothers face difficulties keeping in touch with their children due to restrictive jail visitation policies and costly telephone and video calls.  Some risk losing custody of their children because they are not informed of, or transported to, key custody proceedings.  Once released from jail, they are met with extensive fines, fees, and costs that can impede getting back on their feet and regaining custody of their children.

Women are the fastest growing correctional population nationwide and since the 1990s, Oklahoma has incarcerated more women per capita than any other US state.  Local jails (which typically house people prior to conviction, sentenced to short periods of incarceration, or awaiting transfer to prisons for longer sentences) are a major driver of that growth.  On a single day, the number of women in jails across the US has increased from approximately 8,000 in 1970 to nearly 110,000 in 2014, a 1,275 percent increase, with rural counties accounting for the largest growth rate. Many times more are admitted to jail over the course of a year.

The growth in women’s incarceration also means growth in the number of jailed mothers, which has doubled since 1991.  Nationwide, more than 60 percent of women in prisons and nearly 80 percent of women in jails are mothers with minor children.  A study conducted by the US Bureau of Justice Statistics reported that a majority of incarcerated mothers lived with and were the sole or primary caretaker of minor children prior to their incarceration.

This means that when mothers go to jail or prison, their children are more likely not to have a parent left at home, and can either end up with other relatives or in foster care. One in 14 children in the US, or nearly six million children, have had a parent behind bars, which researchers identify as an adverse childhood experience associated with negative health and development outcomes.  Children of color are disproportionately impacted by parental incarceration, with one in 9 Black children having had an incarcerated parent compared to one in 17 white children.

Jailed mothers are often dealing with a myriad of issues prior to their incarceration, which is why comprehensive support is essential to keep families together, disrupt cycles of incarceration, and to preserve human rights to liberty, due process, equal protection, and family unity.  Losing contact with and custody of their minor children should not be a consequence of arrest and criminal prosecution.

While nationally and in Oklahoma the rate of women’s incarceration is garnering increasing attention, many barriers to achieving necessary reforms remain.

Human Rights Watch and the ACLU urge Oklahoma and other states to require the consideration of a defendant’s caretaker status in bail and sentencing proceedings, expand alternatives to incarceration, facilitate the involvement of incarcerated parents in their children’s lives and proceedings related to child custody, and substantially curb the imposition of fees and costs, which can impede reentry and parent-child reunification.

September 27, 2018 in Collateral consequences, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

September 26, 2018

Interesting look at data collection and use in prosecutorial decision-making

The folks at the Urban Institute have this interesting new issue brief titled "Collecting and Using Data for Prosecutorial Decisionmaking: Findings from 2018 National Survey of State Prosecutors’ Offices."  Here is how it starts and concludes:

Prosecutorial data collection, data use, and data-driven decisionmaking are subjects of emerging interest among prosecutors, other criminal justice stakeholders, advocates, and policymakers.  How much data are prosecutors collecting?  How are they using data (if at all), and how has that helped decisionmaking?  What resources and infrastructure do prosecutors use, and what barriers prevent effective uses of data?  In early 2018, the Urban Institute surveyed prosecutors’ offices across the country to seek answers to these questions.  Elected prosecutors and staff members responded from 158 offices representing jurisdictions of all sizes, from sparsely populated rural parts of the country to urban areas with more than a million residents....

Across the country, prosecutors and other criminal justice system stakeholders are grappling with how to best use data to improve outcomes.  The findings presented here demonstrate that many prosecutors’ offices collect and use data throughout the case decisionmaking process, from screening to sentencing.  And, many respondents express interest in and a desire to learn more about data collection and how it can be used to improve prosecutorial practices.  Some offices have implemented innovative, data-driven initiatives to better manage their offices and address system-wide trends such as rising crime rates. Nevertheless, significant barriers stand in the way of broader collection and use of data.  A lack of resources and concerns about data accuracy inhibit offices who want to pursue data collection from doing so.  Further investigation into these barriers, as well as the development of innovative solutions to address them, will help expand the practice of data-driven decisionmaking in interested offices.

The analyses presented here demonstrate a relationship between data collection and use. Offices that want to realize the benefits associated with data use must begin by collecting relevant metrics.  By increasing data collection efforts, and later using that data in decisionmaking, prosecutors’ offices can better identify and respond to trends, demonstrate their successes, and link their decisions to safety and justice goals.

September 26, 2018 in Data on sentencing, Detailed sentencing data, Who Sentences | Permalink | Comments (0)

"Will Florida’s Ex-Felons Finally Regain the Right to Vote?"

The question in the title of this post is the headline of this New York Times magazine article, which is worth reading in full.  Here is a taste:

In 2015, [Neil] Volz happened on a meeting at Florida Gulf Coast University, where a small group of students and community activists were listening to an African-American law-school graduate named Desmond Meade.  He was talking about his years-long crusade to restore voting rights to people who had committed felonies, as he had.  The issue affected Volz, who knew he was barred from voting, as is automatically the case in Florida for anyone with a felony conviction.  Meade was president of the Florida Rights Restoration Coalition, an organization founded by the Florida A.C.L.U. for former felons, or, as he and others prefer to call themselves, “returning citizens.” Meade was in the midst of trying to collect the 766,200 signatures required to place an initiative on the ballot to amend Florida’s Constitution, which denies former felons the right to vote.  Volz stayed after the meeting to talk to Meade.  “We chatted for a long time, and by the end, I wanted to help,” he said.

Across the country, more than six million people have lost the right to vote because of their criminal records. More than 1.5 million of them live in Florida, a higher number than in any other state.  The proposed ballot initiative would automatically restore the right to vote to people with a felony conviction who have completed their sentences.  (The initiative makes two exceptions: no voting rights for people convicted of murder or sex offenses.) At the beginning of this year, with the signatures gathered, the state certified the initiative, called Amendment 4, for the November ballot.

Like any change to Florida’s Constitution, Amendment 4 needs 60 percent of the vote to pass. In the summer of 2017, after Volz spent more than a year volunteering, Meade offered him the paid position of political director.  He hoped that Volz, with his experience as a Republican operative, could help frame the restoration of voting rights in terms that appealed to a wide constituency — Republicans and independents as well as people of color and white liberals. “It’s everybody that can’t vote,” Meade likes to say. “I’m fighting just as hard, if not more, for that guy that wanted to vote for Donald Trump than a guy who wishes to vote for Hillary Clinton or Barack Obama.”

September 26, 2018 in Collateral consequences, Elections and sentencing issues in political debates, Who Sentences | Permalink | Comments (0)

Texas with back-to-back executions scheduled for this week

There has not been an execution in the United States for more than a month, but as detailed this local article, Texas is slated to have its machinery of death in operation twice in the coming days:

The East Texas man convicted of drowning a former housemate and stuffing her body into a barrel of lime is slated to die Wednesday in the first of two consecutive executions in the Lone Star State.

If both punishments go through as planned, it'll be the first time in just over six years that Texas has put to death two prisoners in two nights.

Both men say they're innocent, and the pair of impending executions — first of Troy Clark, then of Daniel Acker — has attracted attention from actress Susan Sarandon, author Mary Buser and renowned death penalty abolitionist Sister Helen Prejean.  "Texas plans to execute Troy Clark on Wednesday but there are some serious problems with his case," Prejean tweeted. "Troy has always maintained his innocence. Someone else made a detailed confession and then completely changed her story in exchange for a reduced sentence."

Clark was sentenced to die in 2000 for killing Christina Muse out of fear the young mother would snitch on him for his drug use, according to court records.  He was convicted in part due to the testimony of his then-girlfriend Tory Bush, who admitted to the crime then fingered Clark — even though there was no physical evidence connecting him to the murder....

In the years since he was sent to death row, Clark has argued that he suffered bad lawyering, didn't get to show evidence rebutting claims he would be a future danger to society, and that his girlfriend's testimony was self-serving and unreliable — especially considering she once confessed to the crime herself....

But the Board of Pardons and Paroles on Monday afternoon denied his request for clemency. As of early Tuesday, he had no pending appeals, his attorneys said.

A day after Clark's scheduled date with death, Acker is slated for execution.  The Sulphur Springs man was sent to death row in 2001 after he was convicted of strangling his girlfriend and pushing her from a moving car — though the state abandoned the strangulation theory after trial.

The Lone Star State has already executed eight men this year, and another nine death dates are on the calendar.

September 26, 2018 in Death Penalty Reforms | Permalink | Comments (0)

Another effective preview of coming SCOTUS review of SORNA delegation in Gundy

I was so very pleased to publish this post last week the original commentary of Wayne Logan concerning Gundy v. United States, the soon-to-be-heard Supreme Court case about the administration of the federal Sex Offender Registration and Notification Act (SORNA).  I now see that SCOTUSblog here has up its Gundy preview authored by Mila Sohoni and titled "Argument preview: Justices face nondelegation challenge to federal sex-offender registration law." I recommend the piece in full, and here is how it gets started and ends:

Over 12 years ago, Congress enacted the Sex Offender Registration and Notification Act. One provision of SORNA created a requirement that a convicted sex offender register with every jurisdiction in which he resides, works or studies, as well as in the jurisdiction in which he was convicted. Another part of SORNA, its criminal enforcement provision, made it a crime for a convicted sex offender subject to the registration requirement to fail to register or to keep his registration information updated if he travels across state lines. But what about sex offenders convicted before SORNA’s enactment? SORNA did not itself specify whether pre-SORNA offenders were required to register. It instead authorized the attorney general of the United States to “specify the applicability” of SORNA’s registration requirement to “sex offenders convicted before” the date of SORNA’s enactment, and “to prescribe rules for the registration of any such sex offenders and for other categories of sex offenders who are unable to comply” with the registration requirement. 

In subsequent years, defendants charged under SORNA contended that the act and its enforcement scheme violated a panoply of constitutional rules....

How the Supreme Court chooses to decide this case could have potentially sweeping implications on several scores. The government notes that since SORNA was enacted, 4,000 sex offenders have been convicted of “federal sex-offender registry violations,” and “many of those offenders who failed to register would go free” if the court were to invalidate the delegation in SORNA. In addition, as Gundy notes, there are “hundreds of thousands” of pre-SORNA offenders now covered by the attorney general’s guidelines — as many people, he points out, as live in Wyoming — and the court’s decision will determine whether or not they will face criminal liability for failure to comply with SORNA’s registration requirements going forward.

Beyond the law of sex-offender registration, the approach the court takes in Gundy could have repercussions across the law of the administrative state. Broad delegations of authority to the executive branch form the foundation of modern regulatory government. But given Ginsburg’s dissenting vote in Reynolds, Justice Clarence Thomas’ recent opinions on nondelegation and administrative power, and Justice Neil Gorsuch’s dissent from denial of rehearing en banc in a U.S. Court of Appeals for the 10th Circuit case involving SORNA, there is a real possibility that the Gundycourt will issue a ruling that revives the nondelegation doctrine from its 80-year slumber. If the justices ultimately do find that SORNA’s delegation does something more than just “sail[] close to the wind,” then we can confidently expect to see a string of challenges attacking the exercise of federal administrative power in areas ranging from environmental law to immigration law to food-and-drug law to the law of tariffs and trade. Cass Sunstein famously wrote that nondelegation doctrine has had only “one good year”; when the justices issue their ruling in Gundy, we will discover whether it will finally have a second.

Prior related post:

September 26, 2018 in Collateral consequences, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (2)

September 25, 2018

New Pew issue brief reviews probation and parole in the US

The folks at Pew have this interesting new Issue Brief titled "Probation and Parole Systems Marked by High Stakes, Missed Opportunities: 1 in 55 adults is under community supervision." Here are excerpts from its "Overview":

Incarceration has long dominated the national conversation on criminal justice, because the U.S. prison population skyrocketed between the 1980s and late 2000s.  Starting in 2007, policymakers seeking to protect public safety, improve accountability, and save taxpayer dollars initiated a wave of bipartisan reforms that has reduced the number of people behind bars in many states.  Yet this movement has largely overlooked the largest part of the correctional system: community supervision.

Nationwide, 4.5 million people are on probation or parole—twice the incarcerated population, including those in state and federal prisons and local jails.  The growth and size of the supervised population has undermined the ability of local and state community corrections agencies to carry out their basic responsibilities to provide the best public safety return on investment as well as a measure of accountability.  Although research has identified effective supervision and treatment strategies, the system is too overloaded to implement them, so it sends large numbers of probationers and parolees back to prison for new crimes or for failure to follow the rules.

As part of a collaborative effort to improve the nation’s community corrections system, The Pew Charitable Trusts and the Laura and John Arnold Foundation analyzed the leading research and identified the most pressing problems and some promising solutions.  The available data leave many questions unanswered, but this review reveals key insights and challenges many assumptions about supervision.  Among the findings:

Community corrections is marked by considerable growth and scale, disproportionate representation of men and people of color, and a majority of people who committed nonviolent offenses....

Improvements in supervision offer opportunities to enhance public safety, decrease drug misuse, and reduce incarceration....

Policy changes can reduce correctional control and improve public safety.

These findings demonstrate the need for greater scrutiny of the community corrections system by policymakers and the public.  They also reinforce an emerging consensus among leading practitioners for a fundamental change in the vision and mission of supervision: from punishing failure to promoting success.

September 25, 2018 in Criminal Sentences Alternatives, Data on sentencing, Reentry and community supervision | Permalink | Comments (0)

Bill Cosby gets 3 to 10 years of state imprisonment with no bail pending appeal

As reported in this USA Today article, headlined "Bill Cosby sentenced to three to 10 years in state prison, remanded to custody immediately," a high-profile sentencing ended in a high-profile defendant going directly to prison. Here are some of the details:

A handcuffed Bill Cosby was immediately taken into custody Tuesday after a Montgomery County judge sentenced him to three to 10 years in state prison for the sexual assault of Andrea Constand.

“It is time for justice. Mr. Cosby, this has all circled back to you. The time has come,” Judge Steven O’Neill told the convicted sex offender, denying his request for bail pending appeal and ordering him into immediate custody. He quoted from Constand’s statement to the court, in which she said Cosby took her "beautiful, young spirit and crushed it.”

After the sentencing, Cosby removed his jacket, tie and watch before being taken away in handcuffs, an officer holding his arm. He did not respond to a reporter's request for comment.

Cosby publicist Andrew Wyatt issued a fiery retort outside the courthouse, saying Cosby was denied a fair trial and calling the proceeding "the most racist and sexist trial in the history of the United States." He cast blame on District Attorney Kevin Steele; a "racist and sexist mass media"; and three white female psychologists "who make money off of accusing black men of being sexual predators."...

Before announcing Cosby's prison term, O'Neill ruled that he would be designated a "sexually violent predator," requiring that he register as a sex offender and undergo counseling for the rest of his life after his release from prison. Cosby was fined $25,000 and ordered to pay court costs.

The sentence is in line with the one sought by Steele, who asked O’Neill to impose a prison term of five to 10 years after Cosby's conviction in April on charges he drugged and sexually assaulted Constand in 2004. A defense attorney had asked that Cosby, 81, be spared a prison term, citing his age and frailty....

Cosby’s lawyers asked that he be allowed to remain free on bail, but the judge appeared incredulous over the request and said he would not treat the celebrity any differently from others.

At a post-trial news conference, Steele said justice had finally been served, calling the sentence "fair and significant."

“It’s been a long time coming, but (justice) arrived when a convicted felon named William H. Cosby Jr. left the courtroom in handcuffs, headed off to state prison for his crimes," he said. "It’s been a long wait for our victim, Andrea Constand, as it has for the other women who have endured similar sexual assaults and rapes at the hands of the defendant.”

He said Cosby's fame, fortune and popularity helped him create a deceptive image. “For decades, the defendant has been able to hide his true self and hide his crimes using his fame and fortune. He’s hidden behind a character, Dr. Cliff Huxtable (of "The Cosby Show"). It was a seminal character on TV and so was the family, but it was fiction," Steele said. "Now, finally, Bill Cosby has been unmasked, and we have seen the real man as he is headed off to prison."

Prior related posts:

September 25, 2018 in Celebrity sentencings, Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (7)

"Safe Injection Sites and the Federal 'Crack House' Statute"

Alex Kreit, who I am lucky to have time to hang out with this semester as he serves as the first Visiting Professor at The Ohio State University's new Drug Enforcement and Policy Center, has this new paper now posted on SSRN that has the same title as the title of this post.  Here its abstract:

Safe injection sites have become the next battlefield in the conflict between state and federal drug laws.  A safe injection site is a place where injection drug users can self-administer drugs in a controlled environment under medical supervision.  They have been operating in other countries, including Canada, for decades and a wealth of evidence suggests that they can help to reduce overdose deaths.  To date, however, no U.S. city or state has sanctioned a safe injection site.  Until recently, safe injection sites were politically untenable, seen as a form of surrender in the war on drugs.  This dynamic has changed over the past few years as prominent politicians from both parties have called for an end to the drug war and the opioid epidemic has grown increasingly dire.

Efforts to start a safe injection site are currently underway in at least 13 cities and states.  Four cities — New York, Philadelphia, San Francisco, and Seattle — have gone so far as to announce plans to open an injection site.  There is just one small problem.  They appear to violate the federal “crack house” statute, which makes it a crime to maintain a drug involved premises.  The Department of Justice has not yet taken a formal position on safe injection sites.  But in a New York Times editorial, Deputy Attorney General Rod Rosenstein threatened that “cities and states should expect the Department of Justice to meet the opening of any injection site with swift and aggressive action.”

Surprisingly, this looming conflict has gone almost entirely overlooked by legal academics.  Meanwhile, the public debate has assumed that the status of safe injection sites under federal law is clear.  In this article, I argue that assumption is wrong.  Despite the crack house statute, an obscure provision of the federal Controlled Substances Act (CSA) might allow states and localities to establish government-run safe injection sites.  Buried in the CSA is a statute that immunizes state and local officials who violate federal drug laws in the course of “the enforcement of any law or municipal ordinance relating to controlled substances.”  This provision was almost surely intended to protect state and local police officers who possess and distribute drugs in connection with undercover operations.  But, I argue, the text of the immunity provision and the little caselaw that exists interpreting it suggests it could shield government-run safe injection sites from federal interference.

September 25, 2018 in Drug Offense Sentencing, Offense Characteristics, Who Sentences | Permalink | Comments (0)

September 24, 2018

The latest controversy over a lenient sentence involving sexual assault comes from Alaska

This lengthy new Washington Post article provides a detailed review of a lenient Alaska sentencing causing a stir.  The article is headlined "A man accused of kidnapping and masturbating on a woman got a ‘pass.’ Now people want the judge and prosecutor out." Here are excerpts:

Hours after Elizabeth Williams learned last week that Justin Schneider wouldn’t spend a day in jail, she turned to Facebook to channel her outrage. 

The Anchorage social worker didn’t know Schneider, 34, before he was arrested in August 2017 after police said he offered a woman a ride from a gas station, stopped on the side of a road and asked her to step out under the pretense of loading items into the car, then choked her until she lost consciousness and masturbated on her.  Nor did Williams know the victim in the case, identified only as a 25-year-old Native woman who called police after the assault.

What she was familiar with was how the case ended: Schneider pleaded guilty to one count of second-degree felony assault in exchange for the dismissal of his other assault, kidnapping and harassment charges. He was sentenced Wednesday to two years in prison, the maximum for that charge, with one year suspended.

However, Schneider was given credit for a year under house arrest, meaning he would not serve additional time in prison. He will instead be required to continue wearing an ankle monitor and participate in a treatment program. “I was just absolutely appalled,” she told The Washington Post.

Soon afterward, Williams learned that Alaska voters were slated to decide whether the judge in the case should be retained on the Anchorage Superior Court in the November elections. And so, Thursday morning, Williams started a Facebook page: “NO retention for Judge Michael Corey,” she named it....

Many in the group also directed their anger at Anchorage Assistant District Attorney Andrew Grannik, the prosecutor in the case, who said he had made the plea deal because Schneider had no prior criminal record and seemed amenable to rehabilitation, according to the Alaska Star.

Grannik said in court that he had “reasonable expectations” that Schneider would not offend again. “But I would like the gentleman to be on notice that that is his one pass. It’s not really a pass, but given the conduct, one might consider that it is,” Grannik said then.

On social media, people seized on the “one pass” comment and demanded that Grannik be given the boot along with the judge.

Meanwhile, Alaska state officials have acknowledged the outrage but said that, while Schneider’s conduct was “very disturbing,” Corey and Grannik were constrained by sentencing laws. “Both the governor and the attorney general think what occurred in this case was unacceptable in terms of the current state of the law,” said Cori Mills, a senior assistant attorney general in the Alaska Department of Law. “The law needs to be changed.”

Under Alaska statute, the definition of sexual contact encompasses only direct physical contact with genitals, buttocks, female breasts or the anus — not semen.  In other words, despite the accusation that Schneider ejaculated on the woman, he could be charged only with harassment in the first degree, which is not a sex offense, according to state Deputy Attorney General Rob Henderson.

He reiterated what the Alaska Criminal Division director stated Friday, in the face of strong backlash over the sentence: State officials had feared that the kidnapping charge, the most serious of the counts, could not have been proved beyond a reasonable doubt if the case had gone to trial because Schneider’s victim had willingly entered his vehicle.

Given that, Henderson said, the prosecution would have been left to pursue lesser charges that, even if they had resulted in convictions, would not have forced Schneider to enter sex offender treatment. “Because the state realized there was a need for sex offender treatment, the only way to obtain that requirement was to get him to agree to it" in a plea deal, Henderson said. “When you have sex offender treatment, you have to have some type of leverage or incentive to compel the person to complete the treatment.”...

In the wake of the case, Alaska Gov. Bill Walker (I) said he planned to propose legislation that would make “causing unwanted contact with semen” a sex offense.  If successful, the penalty for a first-time offense would carry jail time of two to 12 years and require registering as a sex offender.  However, the Alaska legislature does not convene until January, so any fix to the loophole would be months away at the earliest.

Williams, who started the Facebook page calling for the judge’s ouster, said she agreed with the proposed loophole fix and understood the sentencing constraints the judge and prosecutor were under.  However, she wished that the judge had sentenced Schneider to some jail time — or that the case had been taken to trial, even if it meant risking that Schneider would be acquitted of all charges...

The Alaska Star reported that Schneider’s victim was not at the hearing and had, according to police, been traumatized “to the point where she couldn’t hardly speak” after the assault. Details about the case were graphic enough that some local news outlets placed editor’s notes at the tops of their stories warning readers.

The victim “said she could not fight him off, he was too heavy and had her down being choked to death,” Anchorage police Detective Brett Sarber wrote in a criminal complaint obtained by KTVA News last year. “[She] said she lost consciousness, thinking she was going to die.”  When she regained consciousness, the man zipped up his pants, gave her a tissue and “told her that he wasn’t really going to kill her, that he needed her to believe she was going to die so that he could be sexually fulfilled,” Sarber wrote in the complaint.

September 24, 2018 in Purposes of Punishment and Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (3)

"Extending 'Dignity Takings': Re-Conceptualizing the Damage Caused by Criminal History and Ex-Offender Status

The title of this post is the title of this new paper authored by Jamila Jefferson-Jones now available via SSRN. Here is the abstract:

The consequences of a criminal conviction extend far beyond “time served”: Ex-offenders often face social and civil stigmas and disabilities that continue for the rest of their lives.  These collateral consequences cause real harm to the reputation, dignity, and livelihood that can be difficult to quantify in the strictly economic analysis used in traditional constitutional takings analysis.  These collateral consequences are a form of dignity taking which deprive the ex-offender of their status as a full member of society.  Bernadette Atuahene originated the idea of “dignity takings”, eventually settling on a definition that combines a traditional government taking of property with an outcome of dehumanization or infantilization.  Scholars have applied this analysis to a number of cases of tangible property, but have only just begun to expand it into the criminal justice and reputational harm cases.

By applying the framework of dignity takings to the difficulties faced by ex-offenders in their reentry to society, I will demonstrate how we can better express the harms caused by the collateral consequences of conviction.  By doing so, we can focus our attention not on economic damage and restitution, but the restoration of lost dignity and humanity.

September 24, 2018 in Collateral consequences, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (3)

Details on not yet complete sentencing of Bill Cosby

The sentencing of Bill Cosby following his conviction on three state charges in Pennsylvania got started today, but did not reach a conclusion. This lengthy New York Times article, headlined "Bill Cosby Sentencing: Psychologist Says Threat to Women Remains," reports on what transpired. Here are excerpts: 

In the first of two days of hearings to determine Bill Cosby’s sentence for sexual assault, a psychologist for a state panel testified that Mr. Cosby deserved to be categorized as a “sexually violent predator” because he had a personality disorder that pushed him to have sex with nonconsenting partners.

The finding by the psychologist for Pennsylvania’s Sexual Offenders Assessment Board can be a factor in sentencing and in the conditions imposed on a person found to be a predator, both in prison and afterward.  But the final decision rests with Judge Steven T. O’Neill who is presiding over the hearing that could end Tuesday with one of the world’s best-known entertainers entering a prison cell.

Mr. Cosby’s lawyer, Joseph P. Green, had argued that Mr. Cosby’s age, 81, and legal blindness meant he was no risk, especially since there have been no new allegations of sexual abuse leveled against him since 2004.  “How’s he going to meet these people?” said Mr. Green. “There is no reasonable prospect that an 81-year-old blind man is likely to reoffend.”

But the psychologist, Kristen F. Dudley, said she did not believe the disorder had dissipated with age. “It is possible that he has already met someone who could be a future victim,” she said.  She said that, while Mr. Cosby had declined to meet with her, she was able to draw that conclusion by going through “boxes of documents,” including transcripts from Mr. Cosby’s two trials, one of which ended in April with his conviction on three counts of aggravated indecent assault. Mr. Cosby was convicted of drugging and assaulting Andrea Constand, a former Temple University employee for whom he emerged as a mentor....

Mr. Cosby’s team said its expert witness could not testify until Tuesday, so Judge O’Neill agreed to wait until then to make a decision on the predator determination and Mr. Cosby’s sentence.  If the judge agrees with the board’s psychological assessment, Mr. Cosby would be required to have routine counseling for the rest of his life, and even if not sentenced to prison, he would be required to report monthly to the police.

Mr. Cosby’s legal team had objected to the whole discussion, asserting that the legality of the state’s predator determination process is questionable because, among other things, it does not use the “beyond reasonable” doubt formula for findings in criminal cases.  “The statute is unconstitutional,” said Mr. Green, but the judge found otherwise.

Mr. Cosby had faced a maximum 30-year prison term, 10 years for each of three counts of aggravated indecent assault he was convicted of.  But Judge O’Neill chose on Monday to merge the counts, as allowed when they stem from the same event.  In this case, they originated with an encounter in January 2004 when, Ms. Constand said, Mr. Cosby sexually assaulted her after giving her pills that made her drift in and out of consciousness.

In their remarks, prosecutors asked Judge O’Neill to sentence Mr. Cosby to a five- to 10-year term. “By deterring this type of conduct with a sentence that is appropriate will say that you can no longer get away with this,” the district attorney, Kevin R. Steele, told the court....

Mr. Green argued in favor of house arrest, saying Mr. Cosby is a danger to no one and that the court must be careful not to allow public opinion to affect its decision-making.  “In this case we rely on you to make sure that that public advocacy doesn’t affect the application of the rule of law,” he said, adding later, “It’s your obligation to make sure that the sentencing decision is not affected by all that noise.”

Judge O’Neill will also have to consider state guidelines that recommend, but do not mandate, appropriate sentence ranges. Those guidelines, which account for any previous criminal record (Mr. Cosby has none), the seriousness of his offense, and mitigating and aggravating factors, suggest a range of about 10 months to four years.  (Sentences in Pennsylvania are given as a range of a minimum and a maximum. Inmates with good behavior may be eligible for parole when they have reached the minimum.)...

Ms. Constand, who now works as a massage therapist in Canada, spoke only briefly as her victim’s impact statement had already been incorporated into the record. “The jury heard me,” she said, “Mr. Cosby heard me and now all I am asking for is justice as the court sees fit.”...  Though dozens of other women have accused Mr. Cosby of drugging and sexually assaulting them, Judge O’Neill rejected a prosecution request to allow any of them to provide their accounts at the hearing.

Mr. Cosby’s defense team chose not to present additional witnesses to discuss, for example, Mr. Cosby’s character or any good works. But in his remarks, Mr. Green emphasized what he called Mr. Cosby’s youth of hardship and racism, his time in the United States Navy and discussed his educational achievements....

Mr. Cosby’s lawyers have filed several motions suggesting that they will file an appeal that challenges the judge’s rulings and even the judge’s personal integrity.  A key question for Tuesday will be whether Mr. Cosby is allowed to remain out on bail while he pursues those appeals, a process that could take years.

His lawyers will argue that he is not a flight risk, and that he is not likely to commit another crime. But if Judge O’Neill were to permit him to stay at home, the judge would surely face bitter criticism from the many female accusers eager for closure this week. “I don’t think the judge will let him out on appeal; he has had his freedom for a long time,” said Barbara Ashcroft, a former prosecutor.

Prior related posts:

September 24, 2018 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing | Permalink | Comments (0)

US Sentencing Commission releases new report on application of mandatory minimum penalties specific to federal identity theft offenses

6a00d83451574769e201b8d28f7af6970c-320wiVia email, I learned that the US Sentencing Commission has released another big report as part of its terrific series of recent reports diving into the application of federal mandatory minimum sentencing provisions.  This latest report is titled "Mandatory Minimum Penalties for Federal Identity Theft Offenses," and its basic coverage and key findings are outlined on this USSC webpage.  Here are excepts from the summary:

This publication examines the application of mandatory minimum penalties specific to identity theft offenses. Using fiscal year 2016 data, this publication includes analyses of 18 U.S.C. § 1028A, which provides for a two-year mandatory minimum penalty, as compared to identity theft offenses that do not carry mandatory minimum penalties, as well as the impact of these offenses on the Federal Bureau of Prisons (BOP) population....

Key Findings

Mandatory minimum penalties for identity theft offenses are applied less often in the federal system compared to other mandatory minimum penalties.

Offenders convicted under section 1028A comprised only 1.6 percent (n=978) of federal offenders sentenced in fiscal year 2016....

The percentage of identity theft offenders convicted under section 1028A has steadily increased, more than doubling from 21.9 percent in fiscal year 2006 to 53.4 percent in fiscal year 2016. This percentage is more than ten percentage points higher than reported in the Commissions 2011 Mandatory Minimum Report, when it was 42.6 percent....

Sentences imposed pursuant to section 1028A are longer than sentences imposed for identity theft offenses not carrying a mandatory minimum penalty.

In fiscal year 2016, the average sentence length for offenders convicted of at least one count under section 1028A was more than double the average sentence length for offenders convicted of an identity theft offense not carrying a mandatory minimum penalty (51 months compared to 22 months)....

In addition, other charging and plea decisions also play a role in the application and impact of identity theft mandatory minimum penalties....

The average sentence for offenders who were convicted under section 1028A and another statute was more than double the average sentence for offenders convicted only under section 1028A (54 months compared to 22 months)....

The section 1028A mandatory minimum penalty impacts Black offenders more than any other racial group.

Black offenders were convicted under section 1028A at a higher rate than any other racial group. In fiscal year 2016, Black offenders represented 49.8 percent of all identity theft offenders, yet accounted for 58.7 percent of offenders convicted under section 1028A....

Black offenders were also convicted under section 1028A at the highest rate when considering identity theft offenders within each racial group.  In fiscal year 2016, a majority (63.1%) of Black identity theft offenders were convicted under section 1028A, which was higher than the rate for White offenders (47.8%), Other Race offenders (42.0%), and Hispanic offenders (41.1%).

Black offenders were also most likely to be convicted of multiple counts under section 1028A, comprising 58.5 percent of such offenders, followed by White offenders (25.5%), Hispanic offenders (13.2%), and Other Race offenders (2.8%).

Because I do not follow this area of federal sentencing all that closely, I do not know just what to make of the racial data reported here. But I must admit to being persistently discouraged by criminal justice data that persistently shows more application of our toughest penalties against persons of color.

September 24, 2018 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0)

Official FBI crime data for 2017 reports violent and property crime in decline in United States

Early markers hinted that crime was back to declining in 2017, after violent crime had increases in 2015 and 2016 in the United States.  This official FBI press release provides these basics on the latest official FBI data:

After two consecutive years of increases, the estimated number of violent crimes in the nation decreased 0.2 percent in 2017 when compared with 2016 data, according to FBI figures released today. Property crimes dropped 3.0 percent, marking the 15th consecutive year the collective estimates for these offenses declined.

The 2017 statistics show the estimated rate of violent crime was 382.9 offenses per 100,000 inhabitants, and the estimated rate of property crime was 2,362.2 offenses per 100,000 inhabitants. The violent crime rate fell 0.9 percent when compared with the 2016 rate; the property crime rate declined 3.6 percent.

These and additional data are presented in the 2017 edition of the FBI’s annual report Crime in the United States. This publication is a statistical compilation of offense, arrest, and police employee data reported by law enforcement agencies voluntarily participating in the FBI’s Uniform Crime Reporting (UCR) Program....

Of the 18,547 city, county, university and college, state, tribal, and federal agencies eligible to participate in the UCR Program, 16,655 agencies submitted data in 2017. A high-level summary of the statistics submitted, as well as estimates for those agencies that did not report, follows:

  • In 2017, there were an estimated 1,247,321 violent crimes.  The estimated number of robbery offenses decreased 4.0 percent, and the estimated number of murder and nonnegligent manslaughter offenses decreased 0.7 percent when compared with estimates from 2016.  The estimated volume of aggravated assault and rape (revised definition) offenses increased 1.0 percent and 2.5 percent, respectively.
  • Nationwide, there were an estimated 7,694,086 property crimes.  The estimated numbers for two of the three property crimes showed declines when compared with the previous year’s estimates.  Burglaries dropped 7.6 percent, larceny-thefts decreased 2.2 percent, but motor vehicle thefts rose 0.8 percent.
  • Collectively, victims of property crimes (excluding arson) suffered losses estimated at $15.3 billion in 2017.
  • The FBI estimated law enforcement agencies nationwide made 10.6 million arrests, (excluding those for traffic violations) in 2017.
  • The arrest rate for violent crime was 160.7 per 100,000 inhabitants; the arrest rate for property crime was 388.7 per 100,000 inhabitants.
  • By violent crime offense, the arrest rate for murder and nonnegligent manslaughter was 3.8 per 100,000 inhabitants; rape (aggregate total using the revised and legacy definition), 7.2; robbery, 29.3; and aggravated assault, 120.4 per 100,000 inhabitants.
  • Of the property crime offenses, the arrest rate for burglary was 61.7 per 100,000 inhabitants; larceny-theft, 296.0; and motor vehicle theft, 28.2. The arrest rate for arson was 2.8 per 100,000 inhabitants.

As I have said in the past and will say in the future, reports of declining crime rates is something that everyone should celebrate while continuing to consider how we can continue to do better both with crime and punishment.  As reported here last week, data from the Brennan Center suggests we are continuing to do better on crime issues in 2018.  Given that the latest prisoner statistics suggesting continued declining prison populations through 2017 and 2018 — e.g., as of September 20, 2018, the federal prison population was reported at 181,800, down more than 5% from the reported population of 192,170 in 2016 and down almost 20% from the 219,298 federal prisoners reported in 2013 — it seems we may be finding ways to have less reported crimes and less prison punishment. 

September 24, 2018 in National and State Crime Data, Scope of Imprisonment | Permalink | Comments (0)

September 23, 2018

Two exciting DEPC events this coming week

In separate prior posts here and here, I noted two substantive events scheduled this week involving the new OSU Drug Enforcement and Policy Center (which I help direct).  I am quite excited about both events, the first of which is in DC on Sept 25, the second of which is in Columbus on Sept 27 to 28.  Here are the titles of the events, descriptions, and links to registration pages:

 

"Laboratories of Democracy: Drug Policy In The United States" (September 25 in Washington, DC):

Drug use and substance abuse are circumstances that no longer impact only a small percentage of our population. In 2016, over 20 million Americans dealt with a substance use disorder, and the CDC estimates that more than 10 percent of the American population use some form of illegal drug each month. The Bureau of Justice Statistics estimates that 58 percent of those in state prisons and 63 percent of those sentenced to state jails meet the medical criteria for drug dependence or abuse.

The Ohio State University’s newly established Drug Enforcement and Policy Center (DEPC), with support from the Charles Koch Foundation, will host Laboratories of Democracy: Drug Policy in the United States. This important event will bring together leading academics, members of law enforcement, policymakers, think tank scholars, community advocates, media figures, and other influencers from different spheres and perspectives to discuss the diverse and challenging policy questions that have emerged in the drug policy area.

The event will be held at The Willard InterContinental in Washington, DC on September 25, 2018 from 9:00 am until 3:00 pm. The experts speaking at this event have used their knowledge to propose positive drug policy solutions to tackle the difficult problems faced by our country, and the program will engage attendees in an action-oriented discussion on how our country can move forward with positive solutions to addiction and substance abuse.

More details about and registration for this event are available here and here.  

 

"From Punishment to Public Health: Embracing Evidence-Based Solutions to End the Overdose Crisis" (September 27-28 in Columbus, OH):

This conference aims to explore the impact of criminal justice laws and policies in compounding drug use harms, including overdose deaths, and offer an alternative framework for addressing problematic drug use and drug-related fatalities that is rooted in evidence, compassion, and the principles of harm reduction.

The country is in the middle of a tragic increase in drug overdose deaths and Ohio is at the epicenter of the overdose crisis. According to new preliminary estimates for 2017 from the Center for Disease Control, the country has suffered a record 72,000 overdose deaths, with Ohio’s rate of overdose deaths increasing by more than 17%.  In 2016, Ohio ranked second in the nation in drug overdose death rates (at 39.1 per 100,000) and third in the nation in total number of deaths (4,329).  Ohio is losing nearly 12 citizens each day to a drug overdose.

Responses to the overdose crisis across the nation and within the state have been mixed.  There has been a renewed emphasis on treatment, expanded access to the overdose antidote naloxone, and the passage of Good Samaritan laws that offer protection to those calling for help during an overdose. Health officials in Ohio are even engaging in serious discussions of previously-taboo harm reduction interventions, such as drug checking strips.  Nonetheless, use of the criminal justice system continues to dominate local, state, and federal responses to increasing rates of opioid use and overdose. Ohio, for instance, charges more people with manslaughter for delivery of a controlled substance resulting in death than any other state except one.  Local and state elected officials have proposed legislation that would increase penalties for fentanyl, create a specific drug-induced homicide offense, and refuse medical assistance after a third overdose.  Resources for supply side interventions are dwarfing those dedicated to evidence-based interventions like community-based naloxone or syringe exchange.

In this conference hosted by the Drug Policy Alliance, Ohio State University Moritz College of Law Drug Enforcement and Policy Center, Harm Reduction Ohio, and ACLU-Ohio along with partners Harm Reduction Coalition, The Ohio Alliance for Innovation in Population Health and the Ohio State College of Public Health, we will explore why a public health approach to problematic drug use and overdose is critical to reducing needless deaths and other harms and why punitive measures can be counterproductive and destructive. Local, national, and international expert panelists will articulate why and how we can reverse course in our response to the overdose crisis by embracing and applying evidence and the principles of harm reduction rather than principles of punishment.  In so doing, panelists will also dispel common myths about what is effective and what is not based on research, science, and experience.

More details about and registration for this event are available here and here.

September 23, 2018 in Drug Offense Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (0)