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January 27, 2018

"Montgomery Momentum: Two Years of Progress since Montgomery v. Louisiana"

Download (6)The title of this post is the title of this short interesting document produced by the Campaign for the Fair Sentencing of Youth. I recommend the whole document, and here are excerpts (with endnotes removed):

On January 25, 2016, the United States Supreme Court decided Montgomery v. Louisiana, giving hope and a chance for life outside of prison to individuals sentenced to life without parole for offenses committed as children.

When the Supreme Court decided Montgomery, over 2,600 individuals in the U.S. were serving juvenile life without parole (JLWOP), a sentence only imposed in the United States. In the two years since Montgomery was decided, seven states and the District of Columbia have banned JLWOP, and the number of individuals serving JLWOP has been cut in half, both through resentencing hearings and state legislative reform.

More than 250 individuals previously serving life without parole for crimes committed as children are now free.  Collectively, they have served thousands of years in prison. These former juvenile lifers now have the chance to contribute meaningfully to their communities....

Henry Montgomery, the petitioner in Montgomery v. Louisiana, remains incarcerated.  The U.S. Supreme Court recognized Mr. Montgomery’s “evolution from a troubled, misguided youth to a model member of the prison community.” Montgomery was resentenced and is now eligible for parole, but because of delays at the parole board and prosecutor opposition, the 71-year-old remains in prison, where he has been since 1963.

Children of color are disproportionately sentenced to life without parole.  When Montgomery was decided, over 70 percent of all individuals serving JLWOP were people of color. These extreme disparities have persisted during the resentencing process following Montgomery, underscoring the racially disparate imposition of JLWOP....

For the approximately 1,300 individuals whose unconstitutional JLWOP sentences have been altered through legislative reform or judicial resentencing to date, the median sentence nationwide is 25 years before parole or release eligibility. This means that most individuals who were unconstitutionally sent to die in prison as children will not be eligible for review or release until at least their 40s. Although Montgomery suggested that providing review after 25 years is an avenue for minimal compliance with Miller, these lengthy sentences continue to violate international human rights standards and far outstrip terms of incarceration for youth in the rest of the developed world.

UPDATE: A helpful tweet led me to think this is a good place to note that the Juvenile Sentencing Project has lots of great juve LWOP/Graham and Miller resources detailing responsive legislation and significant state case law and leading reseach reports.  That Project also helps maintain this great national map that enables one to see how many juve LWOP prisoners were in each state at the time of Miller and now.

January 27, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Data on sentencing, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (5)

January 26, 2018

SCOTUS (surprisingly?) stays scheduled Alabama execution

As reported in this local article, headlined "Execution called off for Alabama inmate Vernon Madison," the Supreme Court last night got in the way of a state's effort to carry out a death sentence for a man first convicted of killing a police office back in 1985(!). Here are some details and background:

Vernon Madison, one of the longest serving inmates on Alabama's Death Row, was scheduled to be executed at 6 p.m. Thursday, but 30 minutes before the scheduled execution the U.S. Supreme Court issued a temporary stay. The stay was later granted, and Madison's execution called off.

Madison, 67, has been on death row for over 30 years after being convicted in April 1985 of killing Mobile police Cpl. Julius Schulte. He was set to die by lethal injection at Holman Correctional Facility in Atmore Thursday night, but escaped execution for the second time via a court order.

Madison was 34 when he was charged Schulte's death, who was responding to a domestic disturbance call. Madison also was charged with shooting the woman he lived with at the time, 37-year-old Cheryl Ann Greene. She survived her injuries....

Madison's first trial took place in September 1985. He was convicted, but a state appellate court sent the case back for a violation involving race-based jury selection. His second trial took place in 1990. Prosecutors presented a similar case, and defense attorneys again argued that Madison suffered from a mental illness. They did not dispute the fact that Madison shot Schulte, but said he did not know that Schulte - dressed in plain clothes and driving an unmarked police cruiser - was a police officer.

He was again convicted, and a jury recommended a death sentence by a 10-2 vote. An appellate court again sent the case back to Mobile County for a retrial, this time based on improper testimony from an expert witness for the prosecution.

His third and final trial took place in April 1994. He was convicted, and the jury recommended a life sentence after both Madison and his mother, Aldonia McMillan, asked for mercy. Mobile County Circuit Judge Ferrill McRae sentenced Madison to death-- this time overriding the jury's recommendation.

In April 2017, Gov. Kay Ivey signed into law a bill that says juries, not judges, have the final say on whether to impose the death penalty. That law officially ended Alabama's judicial override policy, as Alabama was the last state to allow it.

Late Wednesday, Madison's attorneys filed two more petitions to the U.S. Supreme Court-- an application for a stay of execution, and a petition for a writ of certiorari focused on the issue of judicial override. Madison's attorneys argued that since he was sent to death under the judicial override statue, he is entitled to a stay and a review of his case. Attorneys filed similar motions to the Alabama Supreme Court, but they denied the request earlier Wednesday. "Because a death sentence is no longer permissible in cases where the jury has returned a sentence of life, Mr. Madison filed a challenge to his death sentence and scheduled execution in the Alabama Supreme Court. He contended that this execution would be arbitrary and capricious and constitute a violation of the Sixth, Eighth and Fourteenth Amendment," the petition states. "The judicial override in this case resulted in a death sentence that is arbitrary, disproportionate, and unconstitutional..." Madison was first scheduled to be executed by lethal injection in May 2016, but there was a temporary delay. Hours after that execution's scheduled time, the U.S. Supreme Court issued a ruling upholding an 11th Circuit Court of Appeals stay of execution. The AG's Office filed responses in opposition to those petitions. In November 2017, the U.S. Supreme Court unanimously reversed that decision, paving the way for Madison to be executed.

Last month, Madison's attorneys from the Equal Justice Initiative filed a petition in Mobile County court to stay Madison's execution, but after a hearing the judge in that case denied the request for a stay of execution. Bryan Stevenson, founder of the EJI and one of Madison's attorneys, then filed two new petitions to the U.S. Supreme Court: One for a stay of execution, and one asking the court to review the case. The AG's Office also filed responses to those requests....

Around 5:30 p.m., the U.S. Supreme Court issued a temporary stay of execution, but the stay was granted at 8:10 p.m. Madison will not be executed Thursday night, and the AG's office must request a new execution date from the state supreme court.

The Supreme Court's order states the stay is in place until the justices decide whether they will grant Madison's writ of certiorari, or if they will review the case. Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch would deny the application for stay, the order said.

Without seeing all the filings, it is hard for me to tell at this stage whether this stay could be a big deal for death penalty jurisprudence generally. But it is obviously a big deal for any and everyone connected to this defendant, his victims and perhaps all capital lawyers in Alabama.

UPDATE: A commentor and a tweet alerted me to this report from Chris Geidner at BuzzFeed News headlined "The Supreme Court Stopped Alabama From Executing A Man Over Competency Questions." Here is how this piece accounts for the stay:

The Supreme Court on Thursday night halted the scheduled execution of Vernon Madison, who was set to face lethal injection in Alabama for the 1985 murder of a police officer.

The stay of execution was granted by the court while the justices consider whether to take up Madison's case in which his lawyers argue he is no longer competent to face execution, noting this he has been diagnosed with vascular dementia and "is unable to recollect the sequence of events from the offense, to his arrest, to his trial and can no longer connect the underlying offense to his punishment." Alabama's lawyers opposed the request.

Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch noted that they would have allowed the execution to proceed. At least five justices had to vote to grant the stay of execution, but justices do not have to announce their vote on stay applications like Madison's stay request, so the exact vote tally — and the votes of the other justices — is not known publicly.

I have changed the title of this post to reflect my own uncertainty about the stay's terms.

January 26, 2018 in Death Penalty Reforms, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

New poll suggests strong bipartisan support for criminal justice reforms

JAN_Web-LogoThis new article from The Hill, headlined "Poll: 3/4 of Americans support criminal justice reform," provides highlights from a notable new survey:

Three-quarters of Americans think the nation’s criminal justice system needs to be significantly improved, according to a new poll out Thursday....

A Justice Action Network poll conducted by Robert Blizzard, a partner at the Republican-leaning Public Opinion Strategies, found a majority of Americans surveyed, 76 percent, believe that the country’s criminal justice system needs significant improvements.

Of the 800 registered voters polled between Jan. 11 and 14, 87 percent of Americans agree that some of the money being spent on locking up nonviolent offenders should be shifted to alternatives like electronic monitoring, community service and probation.

Two-thirds of voters — 65 percent — support fair chance hiring, and 87 percent of voters strongly support replacing mandatory minimum prison sentences for non-violent offenders with a system that allows judges more discretion.  Eighty-five percent of voters, meanwhile, agree that the main goal of the nation’s criminal justice system should be rehabilitating people to become productive law-abiding citizens.

Many more of the poll particulars are available via this Justice Action Network press release and through this PowerPoint.  The press release emphasizes reasons why politicians should be paying attention to these issues:

[V]oter support for bipartisan justice reforms is overwhelmingly high, especially among women, who remain a crucial voting bloc heading into the 2018 midterm elections, and may determine the makeup of the House in November....

“This is not a partisan issue–voters strongly believe that the country’s criminal justice system needs serious improvements,” said Robert Blizzard, Partner at Public Opinion Strategies. “Significant majorities of Republican and Democratic voters across the country favor these reforms, including key 2018 target constituencies like independent voters and women voters. I can’t emphasize enough how strongly voters support these reforms. As a political pollster looking towards 2018 I think all politicians should pay attention. Go back to 2006, women voted for the democratic candidate by double digits. In 2010, women favored the GOP candidate and helped deliver the house to Republicans. Key constituencies are strong on these reforms and they can help give a lift to candidates everywhere.”

January 26, 2018 in Elections and sentencing issues in political debates, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (2)

Still more notable commentary on judicial conduct in sentencing of mass molestor

Perhaps unsurprisingly, lots of folks are still discussing Larry Nassar's state sentencing (basics here), with a number of commentators taking issues with the judge's comments while imposing his sentence and others praising how the entire sentencing was handled.  Here is just a sampling of some of what has caught my eye on this front:

My own thoughts on this matter keep returning to the essential fact that Nassar's state sentencing was much more symbolism than substance from the very start given that he had already received a functional LWOP sentence in federal court AND the fundamentals of his state sentence were largely established by his plea bargain. In this context, I suppose it is not too surprising that so many folks are so caught up in the particulars of the symbolism of how the judge conducted this unique sentencing hearing and spoke sharply to the defendant. But I still find myself ultimately much more interested by and concerned about the work of sentencing judges when it really makes a substantive difference.

Prior related posts:

January 26, 2018 in Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (11)

January 25, 2018

Might some members of SCOTUS want to take up juve sentencing case to limit reach of Graham and Miller?

The question in the title of this post is prompted by this little news item from Wyoming headlined "Wyo asks US Supreme Court to review juvenile murder sentence." Here are the basics:

Wyoming is asking the U.S. Supreme Court to review a Wyoming Supreme Court decision to overturn a minimum 52-year prison sentence for a teen who, as a juvenile, shot and killed a man and injured several others in a Cheyenne park in 2014.

Last August, the Wyoming Supreme Court ordered Phillip Sam re-sentenced, saying his minimum 25-year sentence for first-degree murder followed by a 27-year sentence for aggravated assault effectively constituted a life sentence....

Attorney General Peter Michael argued in his Jan. 4 petition that the practical effect of the state Supreme Court order would be that juveniles could commit additional crimes without additional punishment.

I blogged here about the notable opinion handed down by the Supreme Court of Wyoming in Sam v. Wyoming, No. S-16-0168 (Wy. Aug. 24, 2017) (available here).  I know there have been a lot of opinions from juve offenders looking to extend the reach of Graham and Miller, none of which have yet been granted. I am not sure if there have been many state appeals on Graham and Miller, and I am also not sure if there might be some Justices eager to wade into this arena.

UPDATE:  Coincidentally, SCOTUSblog here has Wyoming v. Sam as its "Petition of the Day."  The full petition sets forth this sole Question Presented:

When a juvenile is sentenced for murder and other violent crimes, does the Eighth Amendment limit a judge to an aggregate term of years that allows a meaningful opportunity for release even though none of the separate sentences are cruel and unusual?

January 25, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

"How IQ Tests Are Perverted to Justify the Death Penalty"

The title of this post is the headline of this new Pacific Standard commentary.  Here are excerpts:

The Supreme Court has slowly been carving out exemptions to the death penalty for people with intellectual disabilities.  In 2002, the Supreme Court ruled in Atkins v. Virginia that people with intellectual disabilities could not be executed, but left it up to the states to determine who is or is not eligible for that protection.  In 2014, in Hall v. Florida, the court ruled that a state can't use a simple IQ cut-off.  Then, in last year's Moore v. Texas, the court ruled that states must consider the best psychiatric and medical information about disability when determining disabled status.  Still, IQ testing continues to play a major role, with a threshold of around 70 serving as the cutoff score, below which a person cannot legally be executed.

Here's where "ethnic adjustments" come in.  The practice, as documented by attorney Robert Sanger in a 2015 article in the American University Law Review [available here], adjusts IQ scores upward for people of color convicted of capital crimes.  According to Sanger, prosecutors in Florida, Texas, Alabama, Tennessee, Missouri, California, Pennsylvania, and Ohio have all used ethnic adjustments to successfully impose the death penalty on people who otherwise might have been deemed exempt.  In his article, Sanger works methodically through case after case, noting in particular the role played by expert witnesses for the prosecution, who testify to the racial biases of IQ testing. In most cases, these experts have never met the person convicted of the capital crime or assessed that person for disability, even as their testimony clears the way for execution.

At the end of his article, Sanger writes, "The idea of racially classifying a person and then using 'ethnic adjustments' to increase his or her IQ score, thereby qualifying that person for execution, is logically, clinically, and constitutionally unsound.  In fact, when looked at more closely, it is a wonder how the practice has gone largely unchallenged over the last few years."  When I spoke to him over the phone, Sanger confirmed to me that no clear constitutional challenge to the practice has emerged to his knowledge, and certainly not at the United States Supreme Court, or in California, where he practices law.

January 25, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (5)

January 24, 2018

Encouraging new report on prospects for prison reform legislation emerging from Congress

This report from The Hill, headlined "Prison reform gains new momentum under Trump," suggests that recent talk from the White house about prison reform might soon become real action from Congress.  Here are the details of an encouraging story:

Momentum is building under the Trump administration for criminal justice reform. The path forward, however, is looking a little different than it has in the past.

Previous efforts to reform the justice system have focused on cutting prison time for convicted felons. But those taking part in the current discussions say the focus has shifted to preventing ex-convicts from returning to jail, suggesting this approach has the best chance of winning approval from both Congress and the White House.

A source familiar with the talks between the White House and GOP members of Congress said a bipartisan prison-reform bill offered by Rep. Doug Collins (R-Ga.) is expected to be marked up in the House Judiciary Committee before the first quarter ends in April.

The Prison Reform and Redemption Act, co-sponsored by eight Democrats and seven Republicans, allows prisoners to serve the final days of their sentences in halfway houses or home confinement. To do so, prisoners have to complete evidence-based programs while in prison that have been shown to reduce recidivism rates. The legislation directs the attorney general to identify the most effective programs, which could include everything from job and vocational skills training to education and drug treatment....

Senate Majority Whip John Cornyn (R-Texas) has introduced similar legislation in the Senate along with Sen. Sheldon Whitehouse (D-R.I.). Collins and Cornyn are working closely together to ensure any differences between their bills are reconciled, the source familiar with talks said.

President Trump and Jared Kushner, Trump’s son-in-law and senior adviser, have met with lawmakers and advocates to talk about prison reform and the success states have had in the last few months, signaling there’s White House support for legislation. “The administration strongly believes that prison reform is a conservative issue that will help reduce crime and save taxpayer dollars and has the potential to gain bipartisan support,” a White House source said.

Bipartisan criminal justice reform efforts until now have largely focused on proposals to reduce mandatory minimum sentencing for certain nonviolent drug offenders and armed career criminals.  While talks now appear focused on prison reform, advocates say sentencing reform isn’t off the table just yet.

Brooke Rollins, president and CEO of the Texas Public Policy Foundation, which started the national Right on Crime campaign, said there’s more divisiveness around sentencing reform. “My best educated guess is that at some point that will become part of the discussion, but right now there is an encouraging [group] coalescing around prison reform.”

Rollins notes that criminal justice reform is a big issue and commended the administration for tackling it one piece at a time. “When trying to get it done all at once, you often end up with nothing,” she said. “I think this administration is smart to focus on prison reform for now.”

I share the view that an effort to get everything in one big reform bill can sometimes prevent getting any bill through the legislative process. And given that a good prison reform bill with lots of potential sentence-reduction credits could prove even more consequential for current and future federal prisoners than even broad mandatory minimum reforms, I am especially encouraged by the prospect of a prison reform bill being the first priority for Congress in the months ahead.  Of course, as with all parts of sentencing reform, the devil is in the details; I will not get to revved up about possible reform until the particulars are made public.  But this report heightens my hope that some significant federal reform may actually get done in the first part of 2018.

Recent related post:

January 24, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Criminal justice in the Trump Administration, Prisons and prisoners, Reentry and community supervision, Scope of Imprisonment, Who Sentences? | Permalink | Comments (6)

Highlighting comments, commentary and consequences from state sentencing of mass molester Larry Nassar

The nature of Larry Nassar's crimes and of his victims contributed to his state sentencing earlier today (basics here) garnering lots and lots of attention.  I suspect in days to come we may see continuing commentary about Nassar's crimes and their enduring consequences, and tonight I thought to highlight a few particulars already garnering attention.

First, certain comments made by the state judge at sentencing have prompted an array of reactions, and so I thought it useful to link here to a full transcript of the judge's full comments at sentencing.  I think it is fair to call everything about the Nassar case remarkable, and the judge's sentencing statement also merits that adjective.

Second, and speaking of the judge and her sentencing comments, over at Slate Mark Joseph Stern already has this notable commentary headlined "Larry Nassar’s Victims Deserved a Judge Like Rosemarie Aquilina."  The piece closes with these lines: "The result was impassioned and imperfect.  It was also what Larry Nassar deserved."

And third, this local article reports on a noteworthy consequence of Nassar's crimes: "Michigan State President Lou Anna Simon resigns hours after Nassar sentencing."  I hesitate calling the MSU Prez another victim of Nassar, but I do not hesitate predicting that Nassar's crimes will reverberate in many ways and in many areas for quite some time to come.

Prior related posts:

January 24, 2018 in Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences? | Permalink | Comments (9)

Notable new initiative, Safe Streets & Second Chances, taking "evidence-driven approach to the chronic issues of recidivism"

Sssc_socialAs reported in this new article from The Hill, the "donor network helmed by billionaire brothers Charles and David Koch is putting $4 million behind a pilot program aimed at reducing recidivism rates among former prisoners." Here is more: 

The effort, called Safe Streets and Second Chances, launches Wednesday in four trial states — Texas, Florida, Pennsylvania and Louisiana.  The 1,000 participants will come from a mix of rural and urban communities and will receive “individualized reentry” programs and have their progress tracked.

The program is led by the Texas Public Policy Foundation and Dr. Carrie Pettus-Davis, an author and professor who says the U.S. prison system is focused too much on punishment and not enough on rehabilitation.

“This unique initiative marries research-driven policy and reentry services reforms,” Pettus-Davis said in a statement.  “Even though incarceration and reentry impacts millions of people’s lives in our country, there is a huge void in research on creating a successful transition of people from prison back home to our communities. We’re closing the gap.”

The webpage announcing the launch of the new Safe Streets & Second Chances initiative provides this additional information:

Today, a new initiative is being launched to reduce the high rate of recidivism by effectively rehabilitating and equipping incarcerated individuals with the tools they need to return home and become productive members of our communities. Called Safe Streets & Second Chances, the new effort uses proven approaches underpinned by academic research to develop comprehensive reentry activities for those releasing from prison to ensure they are successful once home in our communities.

Nearly 700,000 Americans will be released from prison this year, yet close to 70 percent of them are expected to return to prison within five years. This alarmingly high rate of recidivism endangers America’s communities, traps individuals — many of them non-violent offenders — in a cycle of incarceration, and costs taxpayers billions of dollars each year. It’s a problem largely due to criminal justice policies that focus on punishment, but too often fail to implement effective interventions that correct people both in prison and upon release.

Safe Streets & Second Chances takes an evidence-driven approach to the chronic issues of recidivism. This initiative crafts individualized reentry approaches informed by the latest academic research to shift the outcome focus of our criminal justice system from whether individuals are punished to whether they are improved, rehabilitated, and capable of redemption.

Led by author and renowned scholar Dr. Carrie Pettus-Davis, the research component of the new effort will include a four-state, eight-site, randomized controlled trial involving more than 1,000 participants in a mix of urban and rural communities. The four states being examined include Florida, Texas, Pennsylvania and Louisiana.

DISCLOSURE: As detailed in this prior post, the new Drug Enforcement and Policy Center (DEPC) I am helping to get started at The Ohio State University Moritz College of Law was made possible by a gift from the Charles Koch Foundation.

January 24, 2018 in Data on sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)

"Who Killed Habeas Corpus?"

The title of this post is the title of this short paper authored by US District Judge Lynn Adelman recently made available to SSRN that a helpful reader made sure I did forget to post. Here is the abstract:

This article discusses the recent history of the writ of habeas corpus, once known as the Great Writ of Liberty, and concludes that the end result has been tragic.  Because of unwise decisions made by all three branches of government, Congress, the President, and the Supreme Court, the writ has largely been destroyed as an effective remedy for individuals who are imprisoned as a result of a violation of their federal constitutional rights by a state court.  The article notes that under Chief Justices Burger and Rehnquist the Supreme Court established a number of restrictions on the right of state prisoners to obtain federal habeas review.

Then, in 1996, a Republican Congress passed an extremely repressive bill entitled the Anti-terrorism and Effective Death Penalty Act (“AEDPA”) that imposed additional restrictions on the Great Writ.  Particularly objectionable are provisions requiring federal courts to defer to erroneous but reasonable state court interpretations of the Constitution and barring federal courts from relying on any authority other than clearly established Supreme Court precedent. Sadly, over the objections of habeas scholars, civil libertarians, and his own counsel, President Clinton signed the bill into law.

Since then, the Supreme Court has consistently interpreted the law so as to make it even more harmful to prisoners seeking to overturn unconstitutionally obtained state convictions.  The article contends that the loss of habeas corpus is profound because the writ is urgently needed.  This is so because, as state judicial elections have become increasingly contested, increasingly partisan, and increasingly well-financed, it is increasingly difficult for state court judges, who unlike federal judges do not have life tenure, to protect criminal defendants’ constitutional rights. As a result, too many people spend too many years in prison as a result of convictions involving violations of their constitutional rights.

January 24, 2018 in Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Child molester/gymnastics coach Larry Nassar gets (only?!?) 40 to 175 years as state prison sentence for mass molestation

As reported here by the AP, Larry Nassar after a lengthy state sentencing hearing "was sentenced Wednesday to 40 to 175 years in prison as the judge declared: 'I just signed your death warrant'."  Here is more from the AP:

The sentence capped a remarkable seven-day hearing in which scores of Larry Nassar's victims were able to confront him face to face in a Michigan courtroom. Judge Rosemarie Aquilina said Nassar's "decision to assault was precise, calculated, manipulative, devious, despicable."

"It is my honor and privilege to sentence you. You do not deserve to walk outside a prison ever again. You have done nothing to control those urges and anywhere you walk, destruction will occur to those most vulnerable."

Nassar found competitive gymnastics to be a "perfect place" for his crimes because victims saw him as a "god" in the sport, a prosecutor said Wednesday, shortly before the former doctor was to be sentenced for years of molesting Olympic gymnasts and other young women. "It takes some kind of sick perversion to not only assault a child but to do so with her parent in the room," prosecutor Angela Povilaitis said. "To do so while a lineup of eager young gymnasts waited."

She described the "breadth and ripple" of Nassar's sexual abuse as "nearly infinite." "What does it say about our society that victims of sexual abuse have to hide their pain for years when they did nothing wrong? What does it say about our society when victims do come forward ... and are treated as liars until proven true?" Povilaitis said.

Nassar turned to the courtroom gallery to make a brief statement, saying that the accounts of more than 150 victims had "shaken me to my core." He said "no words" can describe how sorry he is for his crimes. "I will carry your words with me for the rest of my days" he said as many of his accusers wept....

Nassar, 54, pleaded guilty to assaulting seven people in the Lansing area, but the sentencing hearing has been open to anyone who said they were a victim. His accusers said he would use his ungloved hands to penetrate them, often without explanation, while they were on a table seeking help for various injuries.

The accusers, many of whom were children, said they trusted Nassar to care for them properly, were in denial about what was happening or were afraid to speak up. He sometimes used a sheet or his body to block the view of any parent in the room. "I'd been told during my entire gymnastics career to not question authority," a former elite gymnast, Isabell Hutchins, said Tuesday....

Nassar has already been sentenced to 60 years in federal prison for child pornography crimes. He is scheduled to be sentenced next week on more assault convictions in Eaton County, Michigan.

Though not made clear in this AP piece, I am inclined to presume this 40 to 175 year sentence is the maximum permitted under state law. I would be grateful to hear from any Michigan state sentencing experts as to whether this was a max sentence and also why a mass molestation such as this one produces a state sentence with a lower range that is shorter than the federal prison sentence Nassar already received for child porn offenses.

Prior related posts:

UPDATE A helpful commentor noted below that the 40-year minimum sentence imposed here was the maximum bottom-range term provided for in Nassar's state plea agreement.  And, of course, because Nassar would have to live well past 100 to even have a chance of completing the current federal sentence he is serving, the particulars of his state sentence are not really of any significant practical consequence.

January 24, 2018 in Celebrity sentencings, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (10)

January 23, 2018

New FBI crime data on first half of 2017 show encouraging declines in all areas except murder and car thefts

LargeThis new news release from the FBI, headlined "2017 Preliminary Semiannual Crime Statistics Released: Stats Show Slight Crime Decline in First Half of 2017," reveals some generally positive crime news for the start of 2017. Here are the basics:

Preliminary statistics show declines in the number of both violent crimes and property crimes reported for the first half of 2017 when compared with the first half of 2016, according to the FBI’s Preliminary Semiannual Uniform Crime Report, January - June 2017, released today. The report includes data from more than 13,000 law enforcement agencies nationwide that submitted crime data to the FBI’s Uniform Crime Reporting (UCR) Program.

According to the report, overall violent crime decreased 0.8 percent in the first six months of 2017 compared with the same time frame in 2016, though the number of murders and non-negligent manslaughters reported increased by 1.5 percent.  Additionally, the number of rapes (revised definition) decreased 2.4 percent, robberies decreased 2.2 percent, and aggravated assaults were down 0.1 percent.

Overall reported property crime offenses dropped 2.9 percent in the first half of 2017 compared with the first half of 2016. Burglaries decreased 6.1 percent, and larceny-thefts decreased 3 percent.  One area of property crime that did rise was motor vehicle thefts, with a 4.1 percent increase.

This FBI table providing year-to-year trends of the last four years provides a little more context for this latest data.  It is especially encouraging to see violent crime start to tick down after two years of increases, but the continued increase in murders remains disconcerting coming on the heels of two prior years of increases.  As has been the case in recent years, I suspect the homicide story is a dynamic region-specific tale with divergent numbers and stories in different cities.  Indeed, this FBI chart with population breakdowns and this FBI chart with regional breakdowns seem to indicate that mid/large-sized cities in the Midwest and South account for much of the increases in murders in the first part of 2017.

UPDATE: Attorney General Jeff Sessions already has penned this commentary published by USA Today touting the good news in this new FBI crime data. Here are parts of the piece:

When President Trump was inaugurated, he made the American people a promise: “This American carnage stops right here and stops right now.” It is a promise that he has kept....

Trump ran for office on a message of law and order, and he won. When he took office, he ordered the Department of Justice to stop and reverse these trends — and that is what we have been doing every day for the past year.

We have placed trust in our prosecutors again, and we’re restoring respect for law enforcement. We have invested in new resources and put in place smarter policies based on sound research.

Ensuring every neighborhood in America is safe again will take time, but we are already starting to see results.

In 2017, we brought cases against more violent criminals than in any year in decades.  We charged the most federal firearm prosecutions in a decade. We convicted nearly 500 human traffickers and 1,200 gang members, and helped our international allies arrest about 4,000 MS-13 members.  We also arrested and charged hundreds of people suspected with contributing to the ongoing opioid crisis.

Morale is up among our law enforcement community.  Any loss of life is one too many, but it is encouraging that the number of officers killed in the line of duty declined for the first time since 2013, reaching its second lowest level in more than half a century.  And we are empowering and supporting our critically important state, local and tribal law enforcement partners as we work together to protect communities from crime.

In the first six months of last year, the increase in the murder rate slowed and violent crime actually went down.  Publicly available data for the rest of the year suggest further progress. For the first time in the past few years, the American people can have hope for a safer future.

Our strategy at this department of concentrating on the most violent criminals, taking down violent gang networks, prioritizing gun prosecutions, and supporting our state, local and tribal law enforcement partners has proven to work.  Of course, our work is not done. Crime is still far too high — especially in the most vulnerable neighborhoods.

This first year of the Trump era shows once again that the difficult work we do alongside our state, local and tribal law enforcement partners makes a difference. Crime rates are not like the tides — we can help change them.  And under Trump’s strong leadership, we will.

I fear that AG Sessions may be taking a victory lap a bit too early based on just a small bit of data from the first half of 2017.  But this commentary references positive "data for the rest of the year," and that lead me to think he has a reasonable basis to expect subsequent crime data reports for 2018 to also be positive.  Given that crime rates are already pretty low by historical standards, I rather like that AG Sessions is already prepared to "take ownership" of crime data.  Consequently, if crime continues to trend down, he certainly can and will be in a position to take credit.  And if crime does not continue to trend down, he will have some explaining to do. 

January 23, 2018 in National and State Crime Data, Offense Characteristics | Permalink | Comments (2)

Lots of notable arrest data in Drug Policy Alliance report on marijuana legalization states

Status-report-coverThe reform advocacy organization Drug Policy Alliance has released today this big new data-dense report titled "From Prohibition to Progress: A Status Report on Marijuana Legalization; What We Know About Marijuana Legalization in Eight States and Washington, D.C."   I have already blogged about this report in general terms over at Marijuana Law, Policy & Reform, but I suspect sentencing reform fans might find interesting what this report says about marijuana arrest rates and related criminal justice issues. 

Particularly interesting for criminal justice fans, especially those interested in or concerned about low-level offense enforcement, are the DPA report's detailed arrest data for every marijuana legalization state in the Appendix.  Here is a portion of how the DPA report discusses these data:  

Arrests in all legal marijuana states and Washington, D.C. for the possession, cultivation and distribution of marijuana have plummeted since voters legalized the adult use of marijuana, saving those jurisdictions hundreds of millions of dollars and preventing the criminalization of thousands of people.

Across legal marijuana states and Washington, D.C. the number of arrests for marijuana law violations has declined dramatically (as shown in Chart 2). In Alaska, the number of marijuana arrests for possession and sales/manufacturing declined by 93 percent from 2013 to 2015, from 845 to 60 (see Appendix C). In Colorado, marijuana arrests declined by 49 percent from 2012 to 2013 (12,894 to 6,502). The number of marijuana arrests increased by 7 percent in in 2014 (7,004), yet remained 46 percent lower than in 2012 (see Appendix E). The total number of marijuana‐related court filings in Colorado declined by 81 percent between 2012 and 2015 (10,340 to 1,954), and marijuana possession charges dropped 88 percent (9,130 to 1,068).

In Oregon, the number of marijuana arrests declined by 96 percent from 2013 to 2016 (6,996 to 255) (see Appendix H). The total number of low-level marijuana court filings in Washington fell by 98 percent between 2011 and 2015 (6,879 to 120) (see Appendix I). Marijuana possession convictions in Washington decreased by 76 percent from 2011 to 2015 (7,303 to 1,723). In Washington, D.C., marijuana arrests decreased 76 percent from 2013 to 2016 (3,450 to 840), with possession arrests falling by 98.6 percent, from 2,549 in 2013 to 35 in 2016....

It is widely acknowledged that racial disparities exist in the enforcement of marijuana laws in this country – Black and Latinx people are more likely to be arrested for marijuana law violations than White people, despite similar rates of use and sales across racial groups. Marijuana legalization has dramatically reduced the number of Black and Latinx people arrested for marijuana-related conduct, yet racial disparities persist. Initial data show that while legalization substantially reduced the total number of Black and Latinx people arrested for marijuana offenses, it did not eliminate the forces that contributed to the disparity in the first place, such as the overpolicing of low-income neighborhoods, racial profiling, and other racially motivated police practices.

In Colorado, for example, White people benefitted most from the declines in marijuana arrests, which decreased by 51 percent, compared to 33 percent for Latinx people, and 25 percent for Black people between 2012 and 2014. The marijuana arrest rate for Black people (348 per 100,000) in Colorado was nearly triple that of White people (123 per 100,000) in 2014. The post-legalization arrest rate for Black individuals in Washington is reported to be double the arrest rate for other races and ethnicities. In Alaska, both Black and White people experienced dramatic declines in marijuana arrests between 2013 and 2015, 95 and 92 percent respectively, yet disparities remain (see Chart 17 below).  Of the 17 marijuana arrests in Alaska in 2016, 29 percent were of Black people (a racial group that comprises only 4 percent of the state’s population). Alaska’s marijuana arrest rate for Black people (17.7 per 100,000) is ten times greater than that of White people (1.8 per 100,000). A similar pattern has emerged in Washington, D.C....

In several states, marijuana legalization for adult use has had the unintended consequence of reducing historically high numbers of youth (under 18 years of age) and young adults (between 18 and 20 years old) stopped and arrested for marijuana offenses. However, these reductions are inconsistent from state-to-state and, in some circumstances, youth now comprise a growing number of people charged with marijuana offenses.

Between 2012 and 2015, marijuana court filings in Colorado fell 86 percent for adults 21 years of age and older, and they declined by 69 percent for youth under 18 years of age and 78 percent for young adults 18-to-20 years old.190 Arrests followed a similar trend in the state between 2012 and 2014 wherein the marijuana offense arrest rate for adults 21 and older decreased by 79 percent and young adults 18-to-20 years old experienced a 34 percent decrease in marijuana arrest rates.191 At the same time, the number of youth under 18 years of age cited for marijuana offenses increased by five percent, which amounts to a one percent increase in the rate per 100,000.192

In Oregon, marijuana arrest rates declined by 92 percent between 2013 and 2015 for adults 18 years of age and older, compared to 80 percent for youth under 18 years of age (See Chart 21). In 2016, the marijuana arrest rate for Oregon youth (19.1 per 100,000) was nearly 7 times the adult rate (2.8 per 100,000).193 Similarly, in Washington, marijuana possession convictions declined by 99.1 percent for adults 18 years of age and older and 56 percent for youth under 18 years of age between 2012 and 2015. In 2015, 98 percent of all marijuana possession convictions in Washington (1,691 of 1,723) were of youth.

January 23, 2018 in Drug Offense Sentencing, Marijuana Legalization in the States, Pot Prohibition Issues | Permalink | Comments (0)

"The 'New' District Court Activism in Criminal Justice Reform"

The title of this post is the title of this interesting new paper authored by Jessica Roth now available via SSRN. Here is the paper's abstract:

Historically, the debate over the judicial role has centered on the constitutional and administrative law decisions of the United States Supreme Court, with an occasional glance at the Federal Courts of Appeals.  It has, moreover, been concerned solely with the “in-court” behavior of Article III appellate judges as they carry out their power and duty “to say what the law is” in the context of resolving “cases and controversies.”  This Article seeks to deepen the discussion of the appropriate role of Article III judges by broadening it to trial, as well as appellate, judges; and by distinguishing between an Article III judge’s “decisional” activities on the one hand, and the judge’s “hortatory” and other activities on the other.

To that end, the Article focuses on a cohort of deeply respected federal district judges — many, although not all, experienced Clinton appointees in the Southern and Eastern Districts of New York — who, over the last decade, have challenged conventional norms of judicial behavior to urge reform of fundamental aspects of the federal criminal justice system.  These “new” judicial activists have made their case for reform in the pages of their judicial opinions, often in dicta; in articles and speeches; and through advocacy within and beyond the judicial branch.  This Article summarizes this activity, places it in historical context, and assesses its value as well as its risks.

January 23, 2018 in Recommended reading, Who Sentences? | Permalink | Comments (1)

January 22, 2018

You be the federal judge: what sentence for Senator Rand Paul's attacker?

As regular readers know, I enjoy following up news of a high-profile conviction by asking what sentence readers think fitting for the high-profile convicted offender.  As detailed in this local article, report, headlined "Rand Paul’s attacker should get 21 months in prison, prosecutors recommend," the case today is high-profile because of the victim (and some motive uncertainty). Here are the latest crime and punishment details:

Federal prosecutors will recommend a sentence of 21 months in prison for the neighbor charged with tackling and injuring U.S. Sen. Rand Paul, according to a court document. The document, posted Monday, also makes clear that the attack was not politically motivated.

Paul’s neighbor, Rene Boucher, told police he attacked Paul because he’d “had enough” after seeing the Republican senator stack more brush on a pile near Boucher’s yard, according to the plea agreement Boucher signed.

Boucher’s attorney, Matthew Baker of Bowling Green, has said he will argue that Boucher should not be put behind bars for the attack on Paul.

The plea deal also envisions that Boucher will make restitution to Paul, who was seriously injured.

Boucher, a 58-year-old retired anesthesiologist, and Paul have lived next to each other for years in an upscale subdivision in Bowling Green, but have reportedly had differences of opinion over property maintenance. Boucher is “very meticulous” about yard maintenance, while Paul “takes a different approach,” Baker told the Herald-Leader last week. “It just became … a point of frustration that boiled over,” Baker said....

Boucher’s plea agreement says Paul was mowing his yard — while wearing headphones for hearing protection — when Boucher saw Paul stacking more brush on an existing pile and lost his temper. Boucher “executed a running tackle” of Paul on Paul’s property, the plea agreement said.

Paul did not see Boucher coming until the last second and was “unable to brace for the impact,” the plea document said. Paul suffered several broken ribs and had to be treated for pneumonia which developed as a result of his injuries....

No date has been set for Boucher to formally plead guilty or be sentenced. The charge against him carries a top sentence of 10 years.

Long-time readers know that Senator Paul has long been an advocate for federal sentencing reforms especially for nonviolent drug offenders; in this case, Senator Paul the victim of a violent crime and perhaps the kind he thinks ought to carry some prison time.  Notably, in this 2013 op-ed, Senator Paul explained his opposition to mandatory minimum drug sentences due in part to the risk they create for federal offenders having "their lives ruined for a simple mistake or minor lapse of judgment."   Arguably Boucher's "running tackle" was just a minor lapse, albeit one that seemingly cause some significant harm to Senator Paul. 

Thanks the the federal Crime Victims' Rights Act, Senator Paul has a "right to be reasonably heard" at Boucher's sentencing and it will be interesting to see if Senator Paul exercises this right and whether he might be inclined to urge any particular sentence.  I surmise that the plea agreement filed today provides that federal prosecutors will seek a sentence of 21 months (likely pursuant to the aggravated assault guideline) while the defense will seek a sentence of probation.  It will be interesting to see what the probation office may end up recommending, and in the meantime I am eager to hear in the comments from various readers:

What sentence would you give to Rene Boucher for his assault on Senator Rand Paul?

January 22, 2018 in Celebrity sentencings, Federal Sentencing Guidelines, Offense Characteristics | Permalink | Comments (15)

Spotlighting the impact and import of rural realities in modern mass incarceration

This recent USA Today commentary, headlined "Ignoring rural areas won't solve America's mass incarceration problem," provides a useful reminder that all parts of the United States are part of the story of modern mass incarceration.  The piece is authored by Christian Henrichson of the Vera institute of Justice, and here are excerpts:

A little known fact imperils our nation’s collective efforts to end mass incarceration: Major cities such as New York, Chicago and Los Angeles are no longer bearing the heaviest burden.  Instead, thousands of smaller cities and towns are now grappling with the nation’s highest incarceration rates.

But the reform movement has not reacted to changing incarceration trends.  In most small cities and towns, public officials are not running on reform platforms, and investment by foundations and national advocates is thin or absent.  If attention and resources are not urgently shifted to overlooked places, progress to reduce unnecessary incarceration in big cities will be totally eroded by deepening problems in the rest of the country.  This means it will be mathematically impossible to end mass incarceration — and too many Americans will be left behind.

There is no better indicator of the geography of mass incarceration than America’s 3,283 local jails.  Unlike prisons, jails exist in nearly every county in America and are under local control.  Designed to only hold people for a short time and when absolutely necessary, jails have become massive warehouses — particularly for those too poor or sick to disentangle themselves from the justice system.

Historically, jail incarceration rates have comported with our understanding of mass incarceration as an urban challenge: They were once highest in the nation’s largest cities and the lowest in the country’s rural and suburban counties. But over the past two decades, the geography of jail incarceration quietly shifted....

Since 2008, large urban jail populations have shrunk dramatically.  But even as reformers celebrated progress, jail growth went into overdrive — particularly in smaller places with limited tax bases.  In small town America, many courts do not convene regularly, resources for public defenders are scarce, and diversion options and pretrial services that might otherwise keep people out of jail beds are few and far between....

It’s also important to note that the geographic shift wasn’t limited to jails.  Recent research indicates that small and rural counties now also funnel a disproportionate share of people into state prisons, a reality that should come as no surprise given that jails function as the “front door” of the criminal justice system.

Rural counties, in particular, have been out of sight and out of mind in much of America.  But the 2016 election refocused attention onto the particular challenges of voters whose voices are often missing from the national conversation. Their burgeoning jails are a window into the pain in smaller places: shrinking economies, deteriorating public health, negligible services and pervasive addiction....

Ending mass incarceration demands a shift in resources and attention.  We need to confront what is happening in all of our backyards and understanding each community’s local incarceration story.  Policymakers and the public have to take stock of how many of their neighbors are behind bars and why — and ask difficult questions about whether wasting so much human potential and taxpayer money makes us any safer.

January 22, 2018 in Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Documentary film about capital punishment, "The Penalty," starts screening in Ohio

Ohio+Tour+The+PenaltyI had heard some time ago that a documentary film was being made that included former student of mine, Allen Bohnert, who has spent the last decade defending persons on Ohio's death row as they approach execution dates. That film, called The Penalty, is complete and is now about to start a week-long Ohio series of showings.

An extended preview of the film is available at this link, and here are parts of the film's official description from its website:

Three extraordinary people embark on journeys of recovery, discovery and rebellion and find themselves centre stage in the biggest capital punishment crisis in modern memory.

The Penalty is a feature documentary film following three people with extraordinary experiences of America's modern death penalty and goes behind the scenes of capital punishment's most recent headlines....

America’s most divisive issue — capital punishment — is running into some trouble. With drug supplies for lethal injections drying up and public support at an all-time-low, the struggle to keep executing is taking its toll.

The Penalty follows three people caught in the crosshairs of capital punishment and the political landscape that could decide their fate.  Going behind the scenes of some of the biggest headlines in the history of America's death penalty, the film follows the lethal injection protocol crisis that resulted in a botched execution; the rehabilitation of a man who spent 15 years on death row for a crime he didn't commit, and the family of a young woman — brutally murdered — split by the state's pursuit of the ultimate punishment.

And here are details about this week's Ohio screenings (with links from the original):

We're very excited to announce that in 2018 we'll be taking The Penalty on tour around the US, starting with a week long tour of Ohio from the 22nd-28th of January. 

Ohio currently has over 25 executions scheduled up to 2022 with the next one scheduled for just a few weeks time on February 13th. After the last attempted execution ended in disarray, there couldn't be a better time to take this film around the state. 

We've teamed up with Ohioans to Stop Executions and The Inter-community Justice and Peace Centre to put on 9 FREE SCREENINGS around the state. Each screening will be followed by a talkback session with the film's co-director Will Francome and special guests, plus the opportunity to take action. 

For those of you in Ohio, or who have friends or family in the state, go to this link to reserve your free tickets. 

If you're not in Ohio - don't fear - there will be more screenings this year, with multiple state tours and one-off screenings. 

January 22, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms | Permalink | Comments (1)

January 21, 2018

"Sentencing in Time"

The title of this post is the title of this recent publication authored by Linda Ross Meyer via the Amherst College Press. Here is how the work is described:

Exactly how is it we think the ends of justice are accomplished by sentencing someone to a term in prison?  How do we relate a quantitative measure of time — months and years — to the objectives of deterring crime, punishing wrongdoers, and accomplishing justice for those touched by a criminal act?  Linda Ross Meyer investigates these questions, examining the disconnect between our two basic modes of thinking about time — chronologically (seconds, minutes, hours), or phenomenologically (observing, taking note of, or being aware of the passing of time).

In Sentencing in Time, Meyer asks whether — in overlooking the irreconcilability of these two modes of thinking about time — we are failing to accomplish the ends we believe the criminal justice system is designed to serve.  Drawing on work in philosophy, legal theory, jurisprudence, and the history of penology, Meyer explores how, rather than condemning prisoners to an experience of time bereft of meaning, we might instead make the experience of incarceration constructively meaningful — and thus better aligned with social objectives of deterring crime, reforming offenders, and restoring justice.

January 21, 2018 in Purposes of Punishment and Sentencing, Recommended reading | Permalink | Comments (8)

"Undocumented Immigrants, U.S. Citizens, and Convicted Criminals in Arizona"

The title of this post is the title of this new paper authored by John Lott available via SSRN that a helpful reader made sure I did not miss.  For a host of reasons, John Lott is a controversial empiricist, and this latest paper could surely stir up some new controversies.  Here is its abstract:

Using newly released detailed data on all prisoners who entered the Arizona state prison from January 1985 through June 2017, we are able to separate non-U.S. citizens by whether they are illegal or legal residents. Unlike other studies, these data do not rely on self-reporting of criminal backgrounds. Undocumented immigrants are at least 142% more likely to be convicted of a crime than other Arizonans. They also tend to commit more serious crimes and serve 10.5% longer sentences, more likely to be classified as dangerous, and 45% more likely to be gang members than U.S. citizens. Yet, there are several reasons that these numbers are likely to underestimate the share of crime committed by undocumented immigrants. There are dramatic differences between in the criminal histories of convicts who are U.S. citizens and undocumented immigrants.

Young convicts are especially likely to be undocumented immigrants. While undocumented immigrants from 15 to 35 years of age make up slightly over two percent of the Arizona population, they make up about eight percent of the prison population. Even after adjusting for the fact that young people commit crime at higher rates, young undocumented immigrants commit crime at twice the rate of young U.S. citizens. These undocumented immigrants also tend to commit more serious crimes.

If undocumented immigrants committed crime nationally as they do in Arizona, in 2016 they would have been responsible for over 1,000 more murders, 5,200 rapes, 8,900 robberies, 25,300 aggravated assaults, and 26,900 burglaries.

January 21, 2018 in Data on sentencing, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (6)