Sunday, April 15, 2018

"The Role of Age in Plea Bargain Decision Making"

The title of this post is the title of this intriguing paper recently posted to SSRN authored by Anton Gollwitzer.  Here is its abstract:

Research has elucidated that defendants in criminal cases behave differently depending on their age.  How age specifically affects plea bargain behavior, however, has only been sparsely investigated.  In four studies, we observed that age influences whether lay individuals’ plea bargain decision making is concordant (i.e., accept plea bargains if guilty and opt for trial if innocent) or discordant (i.e., accept a plea bargain if innocent and opt for a trial if guilty) in ‘mock’ criminal scenarios.

In line with emerging adults’ (18-28 years old) increased just-world beliefs and illusions of transparency, Study 1 provided indirect evidence that emerging adults’ plea bargain decision making is more concordant than mature adults (29-40).  Study 2, however, found that this effect is dependent on the defendant’s likelihood of conviction.  Studies 3 and 4 emulated Studies 1 and 2, however, they examined how parents of differently aged children advise their children regarding plea bargains decision making.  Parents of younger children (8-11 years old) advised their child similarly to how they themselves would act.  Parents of adolescents (12-18), on the other hand, adopted an entirely concordant approach, advising their adolescent child to behave according to their child’s culpability.  Overall, we find that individuals’ approach to plea bargain decision making depends on their age group (or the age group of their children), culpability, and probability of conviction.

April 15, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Another federal court reaction to federal sentencing realities of modern drug war

In this post a few weeks ago, I noted an interesting Seventh Circuit ruling which not only explored ineffective assistance of counsel in plea negotiations, but also highlighted how our federal drug laws can functionally operate to turn a seemingly minor crime into an offense carrying a 20-year mandatory minimum.  That post generated a lot of thoughtful comments, leading me to think it worthwhile to spotlight another drug war sentencing tale with a different variation in the work of counsel and court.

Specifically, a couple of helpful readers sent me a notable sentencing memorandum and a recently unsealed sentencing opinion in US v. Smith, No. 6:17-cr-147-Orl-31KRS (M.D. Fla. Feb. 27, 2018). In this case, as explained by the sentencing judge, Judge Gregory Presnell, Tyrone Smith faced a huge increase in his sentence range under the career-offender guideline for two prior low-level cocaine sales:

Smith was arrested and charged in Count 2 of the Indictment with distribution of a mixture containing a detectable amount of carfentanil.  He pled guilty and appeared before me for sentencing.  The PSR (Doc. 80) scored defendant with a base of 24.  Subtracting two levels for his minor role in the offense and three levels for his acceptance of responsibility, his guideline score would be 19.  With a criminal history score of III, his suggested guideline sentence would be 37-46 months. But the prior state court offenses described above make defendant a career offender as defined by USSG 4B1.1.  Application of this enhancement increases defendant’s score from 19-III to 29-VI, resulting in a guideline range of 151-188 months, a 400% increase for selling $120 worth of cocaine ten years ago!

Running through the 3553(a) factors and noting the "growing chorus of federal judges who reject application of the career offender guideline in certain cases," Judge Presnell concluded "that a reasonable sentence in this case is 30 months, which constitutes a modest downward variance from the low end of defendant’s unenhanced guideline score."

I have provided here for downloading counsel's sentencing memorandum for Tyrone Smith as well as Judge Presnell's "Bench Sentencing Opinion":

Download Sentencing memorandum Final

Download Bench Sentencing Opinion

April 15, 2018 in Booker in district courts, Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (3)

Interesting intricate ruling from Wyoming Supreme Court about limits on extreme aggregate sentences for juve murderers

For whatever reason, the last few months have brought a number of big notable opinions from an array of courts concerning the reach and application of the Supreme Court's Eighth Amendment jurisprudence limiting severe sentences for juvenile offenders. See examples here and here and here and here from the Third Circuit, the District of Connecticut, and the Iowa Supreme Court and the Georgia Supreme Court. 

The latest (and perhaps longest) such opinion was handed down on Friday by the Wyoming Supreme Court in Davis v. Wyoming, 2018 WY 40 (April 13, 2018) (available here).  The majority opinion in Davis covers an array of substantive and procedural issues, and it start and ending provide a flavor of its work:

In 1982, when Donald Clyde Davis was seventeen years old, he and a friend picked up a hitchhiker, robbed, and then murdered him.  Mr. Davis pled guilty to first degree murder, felony murder, and aggravated robbery. He was sentenced to life imprisonment with a consecutive twenty-to-fifty-year sentence for aggravated robbery.  Following the decisions of Miller v. Alabama, 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), Montgomery v. Louisiana, U.S. , 136 S.Ct. 718, 193 L.Ed.2d 599 (2016), Bear Cloud v. State, 2013 WY 18, 294 P.3d 36 (Wyo. 2013) (Bear Cloud II), and the Wyoming Legislature’s amendment to Wyo. Stat. Ann. § 6-10-301(c), after serving over thirty-three years, Mr. Davis was granted parole from his life sentence, began serving his consecutive twenty-to-fifty-year sentence, and received a new individualized sentencing hearing.  After the hearing, the district court declined to modify his original sentence.  Mr. Davis appeals and raises a number of issues regarding his sentence. We will reverse and remand with instructions to conduct a new individualized sentencing hearing....

We find that the district court abused its discretion by weighing Mr. Davis’ youth as an aggravating instead of mitigating factor; considering the nature of the crime to only a limited extent and failing to consider the participation and potential peer pressure of Mr. Davis’ codefendant; placing undue significance on dated psychological evaluations; concluding that he was not capable of rehabilitation without the benefit of expert testimony concerning Mr. Davis’s potential for rehabilitation, and by considering Mr. Davis’ disciplinary record in prison without taking into account the fact that for the majority of his incarceration he had no hope of release, and without weighing his accomplishments and personal growth while in the penitentiary.  The district court’s failure to consider Mr. Davis’ family and home environment and whether he might have been convicted of a lesser offense but for incompetencies associated with youth, without providing an explanation for omitting analysis of those factors, also constituted an abuse of discretion. Finally, the district court abused its discretion by failing to make a finding of permanent incorrigibility based upon its analysis of all the Miller factors.  When the Miller factors are not properly considered and weighed and when there is no finding of permanent incorrigibility, or when a finding of permanent incorrigibility is not supported by the Miller factors, the resulting sentence violates the Eighth Amendment.

Accordingly, we reverse.  At the time of the hearing and the district court’s decision, the parties and the district court did not have the advantage of our rulings concerning the procedure, burdens, and potentially relevant evidence for a Miller determination, contained here.  Consequently, remand for an additional sentencing hearing and resentencing is appropriate.  On remand, the sentencing court should approach the case with the understanding that, more likely than not, life without parole is a disproportionate sentence for Mr. Davis, and it should consider the Miller factors and decide whether he is the truly rare individual mentioned in Miller who is incapable of reform.

The dissent opinion in Davis likewise covers lots of group, but its start spotlights an issue that I suspect will be setting US Supreme Court attention relatively soon:

As I observed in Sam v. State, 2017 WY 98, ¶ 88, 401 P.3d 834, 862 (Wyo. 2017), reh’g denied, and Sen v. State, 2017 WY 30, ¶¶ 36-37, 390 P.3d, 769, 779 (Wyo. 2017) (Sen III), the United States Supreme Court has not prohibited consecutive sentences for juveniles who commit multiple crimes including murder.  The U.S. Supreme Court never found such sentences to be “the functional equivalent of life without parole.”  I continue to disagree with the concept of “de facto life without parole” arising from consecutive sentences for separate crimes.  In my opinion, the U.S. Supreme Court established a process to assure that a juvenile offender’s age, immaturity and potential for improvement are considered in sentencing.  Unfortunately, some courts, including this one, have focused on the result of the sentencing, rather than on the process.

I recognize some states have concluded that Miller, Graham and Montgomery point to a conclusion that lengthy consecutive sentences for juveniles, when aggregated, are the same as a single sentence of life without parole.  Other states have not done so.  I find the better logic supports those states who have not expanded the holdings in Miller, Graham and Montgomery.  Within the past year, Missouri, Colorado and Pennsylvania have all determined that Miller and Montgomery do not apply to the aggregation of consecutive term of years sentences for multiple crimes committed by a defendant under the age of 18.

April 15, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (9)

Monday, April 09, 2018

Big Third Circuit panel ruling asserts age of retirement should be central to applying Eighth Amendment limits on long juvenile sentences

The Third Circuit today handed down a huge ruling today in US v. Grant, No. 16-3820 (3d CIr. April 9, 2018) (available here), to address the application of Eighth Amendment limits on juvenile sentences.  The panel opinion runs nearly 50 pages (followed by a 10+ page partial dissent), but these paragraph sets up the context and part of the heart of the opinion (with emphasis in original):

This case presents several difficult challenges for this Court. It calls upon us to decide a novel issue of constitutional law: whether the Eighth Amendment prohibits a term-of-years sentence for the duration of a juvenile homicide offender’s life expectancy (i.e., “de facto LWOP”) when the defendant’s “crimes reflect transient immaturity [and not] . . . irreparable corruption.” Montgomery v. Louisiana, 136 S. Ct. 718, 734 (2016). Next, if we find that it does, then we must decide what framework will properly effectuate the Supreme Court’s determination that the Eighth Amendment affords nonincorrigible juvenile offenders a right to a meaningful opportunity for release. Furthermore, we must take great pains throughout our discussion to account for the substantive distinction that the Supreme Court has made between incorrigible and non-incorrigible juvenile offenders in order to ensure that the latter is not subjected to “a punishment that the law cannot impose upon [them].” Id. (quoting Schriro v. Summerlin, 542 U.S. 348, 352 (2004)).

Our decision today therefore represents an incremental step in the constitutional discourse over the unique protections that the Eighth Amendment affords to juvenile homicide offenders....

[W]hat is clear is that society accepts the age of retirement as a transitional life stage where an individual permanently leaves the work force after having contributed to society over the course of his or her working life.  See, e.g., Retirement, BLACK’S LAW DICTIONARY (10th ed. 2014) (“Termination of one’s own employment or career, esp. upon reaching a certain age . . . .”). It is indisputable that retirement is widely acknowledged as an earned inflection point in one’s life, marking the simultaneous end of a career that contributed to society in some capacity and the birth of an opportunity for the retiree to attend to other endeavors in life.

As we stated above, a non-incorrigible juvenile offender is not guaranteed an opportunity to live a meaningful life, and certainly not to a meaningful retirement.  Nevertheless, in order to effectuate the Eighth Amendment’s requirement of meaningful opportunity for release, a juvenile offender that is found to be capable of reform should presumptively be afforded an opportunity for release at some point before the age of retirement.  Cf. Graham, 560 U.S. at 58 (“To determine whether a punishment is cruel and unusual, courts must look beyond historical conceptions to the evolving standards of decency that mark the progress of a maturing society.” (internal quotation marks omitted) (quoting Estelle, 429 U.S. at 102)).  A sentence that preserves the juvenile offender’s opportunity to contribute productively to society inherently provides him or her with “hope” to “reconcil[e] with society” and achieve “fulfillment outside prison walls.” Id. at 79.  It also accounts for the Court’s trepidation that LWOP sentences deprive non-incorrigible juvenile offenders of vocational training opportunities, which presumably otherwise prepare them to become productive members of society’s working class.  See id. at 74.

Accordingly, lower courts must consider the age of retirement as a sentencing factor, in addition to life expectancy and the § 3553(a) factors, when sentencing juvenile offenders that are found to be capable of reform.  Critically, under all circumstances, lower courts must only consider the uniform national age of retirement.  Otherwise, estimates of retirement ages that account for locality, state, gender, race, wealth or other differentiating characteristics raise similar constitutional concerns to those plagued by reliance on life-expectancy tables alone. Without fixing the age of retirement to a uniform standard, classes of juvenile defendants that retire on average later in life would unreasonably be subjected to longer sentences.  Cf. Mathurin, 868 F.3d at 932 (sentencing juveniles based solely on mortality tables “would unquestionably lead to challenges from defendants from longer-living ethnic groups who would be subject to longer sentences based on that ethnicity”).

Because I am on the road today, I may not be able to review and further comment on this big opinion for some time. But I surmise there is a whole to worth discussing in this opinion, and I hope commentors might share a range of thoughts about it.

April 9, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (1)

Monday, April 02, 2018

SCOTUS grants cert on yet another ACCA case(!) while Justice Sotomayor is in fine dissenting form on other criminal justice matters

Before taking another two week break from oral arguments, the US Supreme Court this morning issued this order list which included a cert grant on yet another case interpreting the application of the Armed Career Criminal Act. As it does so well, SCOTUSblog already has this case page for the new ACCA case providing this basic accounting:

Stokeling v. United States

Docket No. 17-5554 (opinion below from 11th Circuit)

Issue: Whether a state robbery offense that includes “as an element” the common law requirement of overcoming “victim resistance” is categorically a “violent felony” under the Armed Career Criminal Act, 18 U.S.C. § 924(e)(2)(B)(i), when the offense has been specifically interpreted by state appellate courts to require only slight force to overcome resistance.

Today's order list is also noteworthy for two lengthy dissents authored by Justice Sotomayor that together take up more than half of the entire order list.  The long one, which has Justice Ginsburg also on board, complains about the Court summarily reversing a Ninth Circuit ruling concerning a police officer's liability for shooting a suspect.  The shorter dissent has her complaining solo about the Court's denial of cert in a Florida capital case.  The closing substantive paragraph and footnote of this dissent struck me as blogworthy:

Therefore, the Florida Supreme Court has (again)[FN4] failed to address an important and substantial Eighth Amendment challenge to capital defendants’ sentences post-Hurst. Nothing in its pre-Hurst precedent, nor in its opinions in Truehill and Oliver, addresses or resolves these substantial Caldwell-based challenges.  This Court can and should intervene in the face of this troubling situation.

[FN4] “Toutes choses sont dites déjà; mais comme personne n’écoute, il faut toujours recommencer.” Gide, Le Traité du Narcisse 8 (1892), in Le Traité du Narcisse 104 (R. Robidoux ed. 1978) (“Everything has been said already; but as no one listens, we must always begin again”).

April 2, 2018 in Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Sunday, April 01, 2018

"The Intersection between Young Adult Sentencing and Mass Incarceration"

The title of this post is the title of this notable new article authored by Josh Gupta-Kagan available on SSRN. Here is its abstract:

This Article connects two growing categories of academic literature and policy reform: arguments for treating young adults in the criminal justice system more leniently than older adults because of evidence showing brain development and maturation continue until the mid-twenties; and arguments calling for reducing mass incarceration and identifying various mechanisms to do so. These categories overlap, but research has not previously built in depth connections between the two.

Connecting the two bodies of literature helps identify and strengthen arguments for reform. First, changing charging, detention, and sentencing practices for young adults is one important tool to reduce mass incarceration. Young adults commit a disproportionate number of crimes. Because so many offenders are young adults, treating young adults less severely could have significant impacts on the number of individuals incarcerated.

Second, focusing on young adults responds to retributive arguments in defense of existing sentencing policies, especially for violent offenses. The mass incarceration literature shows that sentences for violent offenses explain much, if not most, of recent decades’ prison growth. Young adult violent offenders deserve punishment, but their youth mitigates their culpability and thus offers a response to retributive calls for long sentences.

Third, considering mass incarceration can add both urgency and new ideas to the growing debate about reforming sentencing of young adults. Such reforms have thus far been tentative, following well-grounded desires to test different alternative interventions for young adults. The mass incarceration literature adds an important consideration – the status quo demands prompt and far-reaching reform – and new ideas, such as prosecutorial charging guidelines that encompass defendants’ age.

April 1, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Friday, March 30, 2018

Examining gender realities and disparities in modern federal sentencing

Dagan-women-prisoners-11David Dagan has this interesting new piece at FiveThirtyEight under the headline "Women Aren’t Always Sentenced By The Book. Maybe Men Shouldn’t Be, Either." As this title suggests, the piece is about gender disparities in sentencing, and here are excerpts:

Official federal sentencing guidelines don’t distinguish between female and male offenders.  They often downplay or outright disregard circumstances that are common among women, such as the role of an offender as the sole caretaker for children or an offender having been coerced into committing a crime.  But judges commonly compensate ad hoc, which has led to women on the whole receiving much shorter sentences than men when facing the same punishments.

Critics say the sentencing benchmarks should provide more flexibility from the start — a change that would benefit women ... but also men in similar circumstances, whose extenuating factors may be even more likely to be overlooked.  “The notion that you simply deal with a complicated situation by saying, ‘Let’s ignore the complexity,’ is idiotic,” said former federal judge Nancy Gertner, now a lecturer at Harvard Law School.

Congress established the U.S. Sentencing Commission in 1984 with the Sentencing Reform Act, partly in response to concerns that sentencing was marred by racial and geographic disparities.  The commission was charged with writing the federal guidelines to remedy those problems, and it updates them occasionally.

But people of different races and genders still fare differently under the guidelines. Race looms large, according to a November 2017 report from the sentencing commission.  It found that black men in federal court are sentenced to 19.1 percent more time, on average, than white men who, at least on paper, committed the same crimes and have similar criminal histories.  Women receive much shorter sentences than even white men — though the difference also varies by race.

That disparity grows even larger when the full scope of discretionary decision-making is considered. Prosecutors exercise at least as much power as judges in sentencing because they decide what charges to bring after an arrest.  A 2015 study from the University of Michigan Law School found that when such decisions are taken into account, sentences for men are on average 63 percent longer than sentences for women.

But women’s criminal involvement often looks different than men’s: They may be minor players in drug rings, are sometimes pushed into crime by a violent partner and often carry trauma from physical and sexual abuse....  More than 56 percent of the women in federal prison are there for drug offenses, compared with about 47 percent of men.  In drug cases involving multiple people, each defendant can be held responsible for the full weight of the drugs involved, even if he or she were far down on the organizational chart.  That approach is hard on women, who are often low-level players in such operations, experts said.

The guidelines do compensate by offering “role adjustments” for people who were merely drug mules, for example. But for many women, Gertner said, “those adjustments don’t begin to capture their insubstantial role.”  So judges, who must consider the guidelines but since 2005 have not been compelled to follow them, may be responding with lower-than-recommended sentences.

Also largely excluded from the guidelines is any consideration of how a defendant got into crime in the first place.  Yet research on incarcerated women shows that abusive relationships can put them on the wrong side of the law. Most women who assault their intimate partners have also been victimized by those partners, and they often cite self-defense as a motive.  Researchers have also turned up many cases of incarcerated women who reported being forced into committing a crime by threats of violence.

A broader history of victimization is also common among female offenders. When researchers interviewed 125 women awaiting release from North Carolina prisons, they found that almost two-thirds had experienced childhood physical or sexual abuse and more than a quarter had been sexually victimized in the year before they went to prison.  (Most studies do not draw explicit comparisons with men, but a survey of about 7,500 state prisoners conducted in 2005 found that while men and women had similar rates of childhood physical abuse, women had far higher rates of childhood sexual abuse.)

The sentencing guidelines set a high bar for considering such life experiences, and then only in cases involving nonviolent crimes.  Judges are also discouraged from factoring in the role of drug addiction except in extraordinary circumstances.

The upshot is that the guidelines “disproportionately disadvantage anyone who has a significant trauma,” said Christine Freeman, who runs an Alabama organization that provides lawyers to poor clients charged with federal crimes. The exclusion of life experience may have been motivated by an effort to ensure that people of higher socioeconomic status could not work the system to their advantage, Freeman said.  “But what it did was tell the courts that it was OK to ignore all these factors that obviously have motivated this situation and led a person to this point.”...

And the federal guidelines specifically discourage taking family considerations into account, declaring them “not ordinarily relevant” to sentencing. But they are certainly relevant to defendants like James who face separation from their children — and women appear to be particularly affected. Among federal prisoners in 2004, a higher share of men than women reported being the parents of minor children, but almost 80 percent of the mothers reported that they lived with their children just before incarceration, compared with half of the fathers.  Gertner said that judges might be particularly sensitive to the consideration that sending parents away is bad for public safety: “We know as a public-safety measure that (in) families that have been fractured by imprisonment, there’s actually a risk to the next generation.”...

Whatever contributes to the sentencing difference, there are few voices arguing that the solution is longer sentences for women. Instead, as the University of Michigan study said, “Policymakers could equally sensibly ask: Why not treat men like women are treated?”

March 30, 2018 in Data on sentencing, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (8)

US District Judge concludes Miller applies to 18-year-old murderer to find his mandatory LWOP sentence violates the Eighth Amendment

I just saw this fascinating federal ruling handed down yesterday by US District Judge Janet C. Hall, the Chief Judge of the US District Court for the District of Connecticut, in Cruz v. US, No. 11-CV-787 (D. Conn. March 29, 2018) (available here). The ruling runs 50+ pages, so I will need to read it carefully before opining about it at length. But these excerpts from the start art end of the opinion should reveal why it is worth attention:

Cruz turned 18 on December 25, 1993. On May 14, 1994, when Cruz was 18 years and 20 weeks old, Cruz and another member of the Latin Kings, Alexis Antuna, were given a mission by gang leader Richard Morales. See United States v. Diaz, 176 F.3d 52, 84 (2d Cir. 1999). The mission was to kill Arosmo “Rara” Diaz. See id. Carrying out that mission, Cruz and Antuna shot and killed Diaz and his friend, Tyler White, who happened to be with Diaz at the time. See id. Cruz testified at the hearing before this court that he now admits to committing both murders. See Cruz Tr. at 27. He further testified that Antuna informed him at the time that the leaders of the Latin Kings were debating what would happen to him as a result of his attempt to leave the gang. See id. at 19. According to his testimony, Cruz believed that, if he did not carry out the mission, he himself would be killed. See id....

[W]hen the Roper Court drew the line at age 18 in 2005, the Court did not have before it the record of scientific evidence about late adolescence that is now before this court.

Thus, relying on both the scientific evidence and the societal evidence of national consensus, the court concludes that the hallmark characteristics of juveniles that make them less culpable also apply to 18-year-olds.  As such, the penological rationales for imposing mandatory life imprisonment without the possibility of parole cannot be used as justification when applied to an 18-year-old.

The court therefore holds that Miller applies to 18-year-olds and thus that “the Eighth Amendment forbids a sentencing scheme that mandates life in prison without possibility of parole” for offenders who were 18 years old at the time of their crimes.  See Miller, 567 U.S. at 479.  As applied to 18-year-olds as well as to juveniles, “[b]y making youth (and all that accompanies it) irrelevant to imposition of that harshest prison sentence, such a scheme poses too great a risk of disproportionate punishment.” See id.  As with Miller, this Ruling does not foreclose a court’s ability to sentence an 18-year-old to life imprisonment without parole, but requires the sentencer to take into account how adolescents, including late adolescents, “are different, and how those differences counsel against irrevocably sentencing them to a lifetime in prison.” See id. at 480.

I think it a near certainty that the feds will appeal this consequential ruling to the Second Circuit and it will be interesting to watch how that court approaches this issue. And, in all likelihood, whatever the outcome in the Second Circuit, a cert petition would follow. So, stay tuned.

March 30, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Texas woman sentenced to five years in prison (!?!?!) for voting illegally

When I first saw the basics of this state sentencing story out of Texas, reported under the headline "Tarrant County woman sentenced to five years in prison for illegally voting in 2016," I did not really believe it. Even after reading the details excerpted below, I am still not quite sure I believe that a judge decided it was just and effective to send someone to prison for half a decade for casting a vote illegally:

A judge sentenced a Rendon woman to five years in prison Wednesday for voting illegally in the 2016 presidential election while she was on supervised release from a 2011 fraud conviction. Crystal Mason, 43, waived her right to a jury trial and chose to have state District Judge Ruben Gonzalez assess her sentence.

J. Warren St. John, her defense attorney, said after the verdict was rendered that an appeal had already been filed and he is hopeful his client will soon be released on bond. "I find it amazing that the government feels she made this up," St. John told the court. "She was never told that she couldn't vote, and she voted in good faith. Why would she risk going back to prison for something that is not going to change her life?"...

During her testimony, Mason — who served just shy of three years in federal prison — told the court that she was assigned a provisional ballot after she arrived at her usual polling place and discovered that her name was not on the voter roll.

Gonzalez, who questioned Mason during her testimony, asked why she did not thoroughly read the documents she was given at the time. The form you are required to sign to get the provisional ballot is called an affidavit, Gonzales told Mason. "There's a legal connotation to that, right?" Gonzales asked.

Mason responded that she was never told by the federal court, her supervision officer, the election workers or U.S. District Judge John McBryde, the sentencing judge in her fraud case, that she would not be able to vote in elections until she finished serving her sentence, supervised release included. She also said she did not carefully read the form because an election official was helping her.

During cross-examination by Tarrant County prosecutor Matt Smid, Mason was reminded that she had jeopardized her freedom in the past by violating federal tax laws. Sacrificing her freedom to vote was not something she would knowingly do, Mason told Gonzales. "I inflated returns," Mason said. "I was trying to get more money back for my clients. I admitted that. I owned up to that. I took accountability for that. I would never do that again. I was happy enough to come home and see my daughter graduate. My son is about to graduate. Why would I jeopardize that? Not to vote. ... I didn't even want to go vote."

Mason was taken to jail after the conclusion of her trial on Wednesday as a chorus of small children leaving the courtroom waved and said, "Bye-bye, Big Mama."

Mason, who was known as Crystal Mason-Hobbs at the time, pleaded guilty to fraud in 2011. As part of her plea agreement, she was ordered to pay $4.2 million in restitution, according to court documents. The fraud charge stemmed from a tax preparation business Mason and her ex-husband, Sanford Taylor Hobbs III, owned and operated in Everman in which they submitted inflated tax refunds to the Internal Revenue Service on behalf of clients.

Mason later divorced her husband, who received a similar sentence after he also pleaded guilty. Mason testified Wednesday that she has remade herself since her release from prison, including getting a degree in a new field and getting a new job.

She had gone to vote at her mother's insistence and brought her driver's license as identification, according to her testimony. When poll workers could not find her name on the list of registered voters, Mason said, she obtained a provisional ballot and was coached through the process by a worker. Mason testified that she did not remember the form saying anything about people on supervised release being prohibited from voting.

To register to vote in Texas, a person must be 18 and a U.S. citizen and cannot be a convicted felon or have been declared mentally incapacitated by a court. In Texas, convicted felons can have their voting privileges restored after fully completing their sentences.

I really cannot fully wrap my mind around the notion that the crime of voting once illegally, even if done with great malice, is the sort of offense that should or even could lead to multiple years in prison. Of course, one might think this is a story about how tough Texas is with all criminals.  But a quick Google new search produces these recent stories of seemingly much worse crimes resulting in probation sentences in Texas:

"Hallsville man sentenced to probation in online solicitation of minor case"

"Woman who made up story about being raped by black men is sentenced to probation"

"Jury gives Waco man probation in deadly drunken driving crash"

March 30, 2018 in Examples of "over-punishment", Offender Characteristics, Offense Characteristics | Permalink | Comments (10)

Monday, March 26, 2018

"Deviancy, Disability, and Dependency: The Forgotten History of Eugenics and Mass Incarceration"

The title of this post is the title of this new paper authored by Laura Appleman now available via SSRN. Here is the abstract:

Racism, harsh drug laws, and prosecutorial overreach have formed three widely-discussed explanations of the punitive carceral state.  These three narratives, however, only partially explain where we are.  Neglected in our discussion of mass incarceration is our largely-forgotten history of the long-term, wholesale institutionalization of the disabled.  This form of mass detention, motivated by a continuing application of eugenics and persistent class-based discrimination, provides an important part of our history of imprisonment, shaping key contours of our current supersized correctional system.  Only by fully exploring this forgotten narrative of long-term detention and isolation will policy makers be able to understand, diagnose, and solve the crisis of mass incarceration.

March 26, 2018 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (0)

High-profile New Jersey case highlights many challenges of sentencing drunk drivers who kill (and appellate review of sentences)

1360879220_amy-locane-bovenizer-lgThis local article, headlined "Former 'Melrose Place' actress to be re-sentenced -- again -- in fatal drunken crash," reports on yet another notable sentencing opinion from a high-profile state sentencing case. Here are the basics from the article, with the full opinion and follow-up thereafter:

Former "Melrose Place" actress Amy Locane who was convicted of killing a 60-year-old woman in a drunken 2010 crash will be re-sentenced -- for the second time. An appellate court ruling issued Friday lambasts the judge's lenient three-year sentence for Locane, calling it "striking."

"We expect our colleagues will agree that the sentence in this case, a hair's breath away from illegal, shocks the conscience," the appellate ruling states.

In August 2016, the state's Appellate Division ruled that the leniency granted by state Superior Court Judge Robert B. Reed in sentencing Locane in the Montgomery Township crash that killed Helene Seeman lacked enough explanation. Locane returned to court for resentencing on Jan. 17, 2017. Reed did not give her any additional jail time, angering the victim's family and leaving prosecutors bewildered.

It appears a three-judge appellate court panel is just as confused. "(Locane) went unpunished for the injuries inflicted upon Seeman, despite the fact she could have easily made alternative arrangements the night of the accident and could have easily avoided driving, was extremely intoxicated, and was engaging in risky maneuvers before the crash," the appellate ruling states. "That is an error we cannot correct."

Locane, who was driving with a blood-alcohol level three times the legal limit during the June 27, 2010, crash, was cleared of the manslaughter charge but found guilty of vehicular homicide and assault by auto.

Locane faced up to 15 years in prison. Reed imposed a sentence that was about a fifth of what she faced under the maximum penalty. He cited the former actress' two small children, including one with Crohn's disease, as a reason for the lenient sentence. Locane was out of prison in two-and-a-half years.

In a sit-down interview with NJ Advance Media in November, Locane said she hadn't touched alcohol since the crash. "I know Judge Reed went out on the limb for me and I'm not going to let him down," she said. "When someone sees the good in you like that and gives you a second chance, you don't want to disappoint them."

But Locane's fate this time around won't be up to Reed. "We are thus compelled to remand this matter for re-sentencing before a different judge," the appellate ruling says.

Locane's attorney, James Wronko, said the comments made by the appellate division about Reed "were simply unwarranted."

"Judge Reed is an excellent judge," he said. "We intend to file with the New Jersey Supreme Court to have them review the matter and then we'll proceed from there." Ironically, Wronko said, Locane was in Steinert High School in Hamilton speaking to students about the dangers of drinking and driving as the appellate court issued its ruling Friday morning.

Hard-core sentencing fans should take some time to check out the full opinion of the New Jersey Superior Court Appellate Division in NJ v. Locane, which runs 43 pages and is available at this link. Though a bit dense with Jersey-specific cites, this Locane opinion remarkably covers in various ways so many intricate issues of modern sentencing policy and practice.

Most fundamentally, this case highlights the challenging balance between offense and offender factors in sentencing, as the appellate court is concluding the trial court wrongfully downgraded the severity of the offense by being unduly moved my the defendant's remorse and rehabilitation. But is also, obviously, raises issue about the discretion of sentencing courts and review of that discretion on appeal. In addition, Sixth Amendment and double jeopardy issues arise in the Locane opinion. So too does the role of concurrent and consecutive sentencing, as well as punishment theory as it relates to sentencing drunk drivers (with a little hint to concerns about race, gender and class).  And the opinion's final paragraph highlights still other matters the opinion engages:

In the beginning of this opinion, we referred to the statements made by the victims during the State's presentation, pursuant to the Crime Victim's Bill of Rights, N.J.S.A. 52:4B36[n]. Their comments dovetailed the sentencing goals embodied in the Code, which in this case were not met. In Liepe, the defendant was sentenced to, in real time, life. In this case, defendant was sentenced to a NERA term of three years. The lack of uniformity is striking and in derogation of the Code.

Put slightly differently, anyone teaching a sentencing class might readily build a number of real interesting exam questions around this case and opinion.

March 26, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Tuesday, March 20, 2018

Highlighting the Big Apple as a source for In Justice Today

My headline is a not-so-clever attempt to set up the fact that the latest two postings at the always great In Justice Today are focused on not-so-great criminal justice realities in New York.  Here are links to the two recent pieces with excerpts (and links from original): 

"NY Gov. Cuomo’s Terrible, Horrible, No Good, Very Bad Plan to Protect Your Kids" by Guy Hamilton-Smith:

New York Governor Andrew Cuomo recently unveiled a legislative proposal packaged as part of a budget amendment to expand already onerous residency and presence restrictions for some sex offenders in New York.

The proposal expands blanket presence and residency restrictions for sex offenders who are on parole or post-release supervision by vastly increasing the number of places they cannot be near. It would outlaw the presence of some sex offenders within 1,000 feet of school grounds, “any facility or institution that offers kindergarten or pre-kindergarten instruction,” or any other place that is “used for the care or treatment” of minors. The proposal also prohibits level 2 and 3 sex offenders — those whom the state deems most at risk to re-offend — from staying at homeless shelters that serve families, even if they are no longer under supervision.

In dense urban environments like New York City, such restrictions — which make it illegal for sex offenders to merely exist in many places — are tantamount to banishment. While sex offender registries (and many of the restrictions that go along with them) have proven to be ineffective and inhumane, public defenders, experts, and advocates say that few restrictions are as ineffective and punitive as those proposed by Cuomo.

"Despite Leaders’ Progressive Promises, NYC Remains ’Marijuana Arrest Capital of the World’" by Shaun King:

In spite of committing to simply ticketing people for possession of small amounts of marijuana, last year the NYPD arrested an astounding 16,925 people for it. These were not drug lords and kingpins. These were the very low-level offenses they said they’d stop arresting people for.

Do the math. That’s 46 people a day. It’s an enormous waste of time and resources. And it’s horribly disingenuous to publicly make the claim that the arrests are coming to an end when clearly they aren’t.

This literally makes New York City “the marijuana arrest capital of the world,” according to a recent report from the Drug Policy Alliance. And a staggering 86 percent of those arrests are of men and women of color.

And let’s be clear — whites and people of color use drugs at roughly the same rate. Some studies even show that whites actually sell drugs at a higher rate, but people of color make up 86 percent of the arrests here in New York nonetheless.

This is a scandal. And Mayor Bill de Blasio and the NYPD continue to contort themselves to blame anything they can possibly think of other than institutional racism for this racial gulf in arrests and prosecutions.

De Blasio criticized the Drug Policy Alliance report, pointing out that marijuana possession arrests dropped by 37 percent between 2013 and 2016. But that doesn’t explain away the nearly 17,000 arrests last year.

NYPD Chief James P. O’Neill recently said they were making the arrests because people don’t like the smell. Really, man? How about we start arresting people for farts too? Arresting people because someone doesn’t like the smell? That’s not even a good lie.

March 20, 2018 in Collateral consequences, Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (4)

Monday, March 12, 2018

"A Touchy Subject: The Eleventh Circuit's Tug-of-War Over What Constitutes Violent 'Physical Force'"

The title of this post is the title of this notable new article authored by Conrad Kahn and Danli Song now available via SSRN. Here is the abstract:

In a prosecution for possession of a firearm by a convicted felon, a pivotal question is whether an individual is subject to a sentencing enhancement under the Armed Career Criminal Act (ACCA).  If an individual has three or more prior convictions that qualify as “violent felonies” or “serious drug offenses,” the ACCA increases his statutory range of imprisonment from zero-to-ten years to fifteen years to life.

Historically, a prior conviction could qualify as a “violent felony” if it satisfied at least one of the three “violent felony” clauses—the elements clause, the enumerated-offenses clause, or the catch-all residual clause.  But on June 26, 2015, the Supreme Court invalidated the residual clause in Johnson v. United States, 135 S. Ct. 2551 (2015) (Johnson II).

Since Johnson II, substantial disagreements have emerged both within the Eleventh Circuit and among the other circuits regarding Johnson II’s reach and the proper application of the ACCA's elements clause.  This Article examines those disagreements, including three ways the Eleventh Circuit got it wrong — specifically, the court’s unusual conduct in ruling on requests to file second or successive post-conviction motions based on Johnson II and recent rulings on whether the Florida offenses of robbery and felony battery qualify as “violent felonies” under the elements clause.  This Article argues the ACCA’s elements-clause analysis should focus on the degree of force used in an act, and the Supreme Court should resolve these disagreements and provide guidance to the lower courts by reviewing whether one of these offenses satisfies the elements clause.

March 12, 2018 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Vagueness in Johnson and thereafter | Permalink | Comments (6)

Saturday, March 10, 2018

Iowa Supreme Court issues latest major ruling on juve sentencing limits and process after Miller

As reported in this local article, the "Iowa Supreme Court on Friday offered guidance to judges for interpreting a 2015 law that lays out sentencing guidelines for juveniles convicted of murder."  Here is more from the press report about the latest in a series of rulings following up on the US Supreme Court's juve sentencing jurisprudence:

Some justices also signaled in concurring opinions that they believe rigid sentences for other crimes committed by juveniles should eventually be rolled back.

The court ruled Friday in a murder case in which Rene Zarate stabbed Jorge Ramos to death in 1999, when Zarate was 15.  Zarate, now 34, originally received a mandatory sentence of life without parole, but requested a resentencing hearing after a 2012 U.S. Supreme Court ruling prohibited such sentences for juveniles.  His new sentence makes him eligible for parole after 25 years, with credit for time served.

Zarate challenged his sentence as well as the constitutionality of a 2015 Iowa law that revised how juveniles who commit first-degree murder are sentenced. Under the law, the sentencing judge could choose from a variety of options including life without the possibility of parole, life with parole after a certain amount of the sentence is served, and life with the immediate possibility of parole.  The law further outlined 25 factors for the court to take into consideration when sentencing juveniles for murder.

In 2016, after that law was passed, the Iowa Supreme Court found that life sentences without parole are unconstitutional for juveniles.  But Friday's ruling was the first time the Iowa Supreme Court addressed the new law. A majority of justices said Friday that the guidelines laid out in the law are constitutional — except for the subsection that allowed for life sentences without parole....

They said judges must give juvenile offenders an individualized hearing taking the circumstances of the case into account, and must consider as mitigating factors things such as the offender's age at the time of the crime, family and home environment and the possibility for rehabilitation and change. But the district court judge who re-sentenced Zarate did so based on his belief that anyone that anyone who takes the life of another individual should spend a certain amount of time in prison, according to the opinion joined by four of the seven justices. "The sentencing judge allowed the nature of Zarate’s offense to taint his analysis by imposing a mandatory minimum sentence of imprisonment due to his belief that there should be a minimum term of imprisonment for anyone who commits murder, regardless of their age at the time of the offense," Justice Bruce Zager wrote in the majority opinion....

The court's remaining three justices issued separate concurrences urging the court to go further in striking down mandatory minimums for juveniles as unconstitutional. Justice Brent Appel, who authored the court's earlier opinion against life sentences without parole for juveniles, said it's time to re-examine the constitutionality of all mandatory minimum sentences for minors who commit crimes. "Instead of imposing mandatory minimums through an unreliable judicial guess, the constitutionally sound approach is to abolish mandatory minimum sentences on children and allow the parole board to make periodic judgments as to whether a child offender has demonstrated maturity and rehabilitation based on an observable track record," Appel wrote in his concurrence.

Justice Daryl Hecht, writing a concurrence joined by Justice David Wiggins, wrote that he believes mandatory minimums for juveniles are categorically prohibited by the Iowa Constitution. "Whether imposed by legislative mandate or by a sentencing court, the constitutional infirmity of mandatory minimum sentences for juvenile offenders is the same in my view," Hecht wrote.

The full opinion in Iowa v. Zarate, No. 15-2203 (Iowa Mar. 9, 2018), which rests much of its constitutional analysis on the Iowa Constitution's prohibition against cruel and unusual punishment (rather than the US Constitution's Eighth Amendment), is available at this link.

March 10, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Thursday, March 08, 2018

You be the sentencing juror: what punishment for deadly drunk driving by Texas State college student?

UntitledThe question in the title of this post is prompted by this local article in Texas, headlined "‘I’m guilty’: Former Texas State student testifies in deadly DWI crash," which highlights that in the Lone Star State jurors are sometimes called to serve as primary sentencers in non-capital cases.   Here are some case particulars via the local press piece:

When Shana Elliott took the stand Thursday morning, she admitted: “I’m guilty.” Elliott, 22, says she was intoxicated and should not have been driving the evening of Aug. 2, 2016, after a day of tubing on the San Marcos River. “We decided to go float the river, we weren’t thinking ahead, we didn’t plan who was going to be driving,” Elliott said on the stand. “The float ended around 5 and that’s when nobody else was going to drive and I decided that I would.”

On that day, Elliott, who was 21 years old at the time, allegedly drove drunk and ran head-on into a car on State Highway 21 killing 23-year-old Fabian Guerrero Moreno and injuring his pregnant wife, Kristian Nicole Guerrero. Guerrero was five months pregnant. The unborn child did not survive.

Elliott says before the crash she dropped her friends off at their homes then decided to drive home herself. “It’s really blurry, I just remember as soon as the accident happened, I know that I made the worst decision ever.”

She says she got out of her car at the scene of the crash and ran to the other vehicle. “I just remember fighting, I wanted to go to make sure they were okay,” she said. “I’m sorry. I accept responsibility and I know what I did was wrong.”

At Elliott’s home, investigators found meth, heroin and a large bag of marijuana.  On the stand Elliott admitted to being addicted to heroin at one time, she said she smoked marijuana, but never did meth. She says after a previous arrest for drugs she had plans to sober up.

While Elliott was on the stand, prosecutors presented a large bottle of alcohol that was found at the crash site.  Elliott told the jury it was hers, adding it was full before she and her friends began floating the river.

Prosecutors also played recordings of phone calls Elliott made from jail. In one of the recordings, Elliott is talking with her boyfriend, speculating the other victims of the crash were part of the cartel. In another recording, Elliott can be heard joking and laughing with her friends about getting her eyebrows threaded in jail just four days after the crash.

Elliott’s grandmother Eleanor Brumley also took the stand Thursday morning. “She was determined to make something of herself,” said Brumley. “I’ve always been proud of her.” Brumley describes Elliot’s childhood as difficult. She says her father died of a heart attack and her stepdad was an alcoholic and was abusive mentally and emotionally. “Shana would deal with that and walk out the door with a smile on her face. She didn’t complain. She’s always thinking of everybody else,” said Brumley.

Elliott says she tried to deal with the abuse herself, but when she arrived at college she sought psychiatric help through a doctor at Texas State University.  She claims the doctor diagnosed her with depression, anxiety and slight PTSD stemming from her difficult childhood.

At the time of the crash, Elliott was a senior at Texas State University. Records show her blood alcohol content was .199 at the hospital.  On Monday, Elliott entered a plea of guilty for two counts of intoxication manslaughter and intoxication assault. The jury is expected to decide her punishment this week.

UPDATE: This local article reports on the jury's sentencing decision:

Shana Elliott, a former Texas State University student, was sentenced to seven years in prison Friday afternoon on each count in the deaths of a man and his unborn child.... Elliott, who pleaded guilty Monday, received seven years in prison each for two counts of intoxication manslaughter with a vehicle in the deaths of Fabian Guerrero-Moreno and his unborn child, who were killed in a drunk driving crash in August 2016.

March 8, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (22)

Tuesday, March 06, 2018

Federal prosecutors seeking (way-below-guideline) sentence of 15 years for "Pharma Bro" Martin Shkreli

As reported in this new Reuters piece, "U.S. prosecutors on Tuesday said former drug company executive Martin Shkreli should spend at least 15 years in prison after being convicted of fraud, saying his lack of remorse and respect for the law justified a long time behind bars." Here is more, with a final point stressed for commentary:

The request by the Department of Justice came three days before Shkreli’s scheduled sentencing by U.S. District Judge Kiyo Matsumoto in Brooklyn federal court. Prosecutors called Shkreli “a man who stands before this court without any showing of genuine remorse, a man who has consistently chosen to put profit and the cultivation of a public image before all else, and a man who believes the ends always justify the means.”

Shkreli, 34, had requested a 12-to-18-month term following his conviction last August for lying to investors about the performance of his hedge funds MSMB Capital and MSMB Healthcare, and conspiring to manipulate the stock price of the drug company Retrophin Inc. Known as “Pharma Bro,” in part for his ability to attract attention, Shkreli is perhaps best known for raising the price of the anti-parasitic drug Daraprim by more than 5,000 percent in 2015, while serving as chief executive of Turing Pharmaceuticals, now called Vyera Pharmaceuticals....

Shkreli has been in jail since September, when Matsumoto revoked his bail after he offered social media followers $5,000 for a hair from former U.S. presidential candidate Hillary Clinton. On Monday, Matsumoto ordered Shkreli to forfeit $7.36 million of ill-gotten gains. She said he may be forced to give up assets such as a Picasso painting and a one-of-a-kind Wu-Tang Clan album if he cannot find the money....

In a letter to the judge last week, Shkreli said he accepted that he had made “serious mistakes,” but still considered himself “a good person with much potential.”

But prosecutors said that while in jail, Shkreli has privately expressed disdain for his conviction and the judicial process, providing further evidence he does not deserve mercy. It cited a January email conversation where Shkreli allegedly wrote “fuck the feds” and expressed hope for a big tax refund because only his “liquid money” was affected by the forfeiture. “Shkreli’s email communications confirm that any remorse he may express publicly is a carefully constructed facade,” prosecutors said.

A 15-year term is shorter than the minimum 27 years recommended under federal guidelines. Brafman has called that length “draconian and offensive.”

There is much in this story and in this high-profile sentencing that merits commentary, but I am especially struck by the decision by federal prosecutors to request a sentence here that is more than a decade below the advisory guideline range.  Recall that the May 2017 Sessions Memo said federal prosecutors "should in all cases seek a reasonable sentence under the factors in 18 U.S.C. § 3553. In most cases, recommending a sentence within the advisory guideline range will be appropriate."  This high-profile case is still more proof that federal prosecutors recognize that the applicable federal sentencing guidelines for at least some fraud offenses are not reasonable and can be unreasonable extreme by more than a decade.

Prior related posts:

March 6, 2018 in Federal Sentencing Guidelines, Fines, Restitution and Other Economic Sanctions, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (1)

Monday, March 05, 2018

Spotlighting the modern realities and challenges of geriatric executions

Adam Liptak has this new Sidebar piece in the New York Times headlined "Too Old to Be Executed?  Supreme Court Considers an Aging Death Row." Here is how the piece gets started:

The nation’s death rows are starting to look like geriatric wards. Condemned inmates in many states are more likely to die of natural causes than to be executed.  The rare ones who are put to death often first spend decades behind bars, waiting.

It turns out that executing old men is not easy.  In November, Ohio called off an attempt to execute Alva Campbell, 69, after the execution team could not find a suitable vein into which to pump lethal chemicals.  The state announced that it would try again in June 2019, by which time he would have been 71.

But Mr. Campbell suffered from what one judge called an “extraordinary list of ailments.”  He used a walker, could barely breathe and relied on a colostomy bag.  He was found lifeless in his cell on Saturday, having died in the usual way, without government assistance.

In Alabama last month, state officials called off the execution of Doyle Lee Hamm, 61, also because they could not find a suitable vein. Mr. Hamm has at least two kinds of cancer, cranial and lymphatic, and he may not have long to live with or without the state’s efforts.

Last week, the Supreme Court agreed to hear the case of another Alabama inmate, Vernon Madison, 67, who suffers from dementia and cannot remember the crime that sent him to death row.  The court, which has barred the execution of juvenile offenders and the intellectually disabled, is now turning its attention to old people.

Prior related posts:

March 5, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Thursday, March 01, 2018

"The Politics of Prosecution: Examining the Policymaking Role of Prosecutors"

The title of this post is the title of this new paper available via SSRN authored by Abhinav Sekhri. Here is the abstract:

This short paper focuses on prosecutors in the federal setting and contributes to this growing field of scholarship.  Through the lens of Prosecutorial Agreements in the sphere of corporate criminal liability, I demonstrate that prosecutors engage in important policy making exercises.  I argue that this analysis helps better understand the constrains in which prosecutorial discretion is exercises, and here I suggest how such an analysis offers a more nuanced reading of the prosecutorial charging practices in corporate crime over the last two decades.  I conclude by suggesting that examining the policymaking potential of prosecutors merits great attention today, as the importance of these actors within the criminal justice system is being appreciated beyond legal spheres.

March 1, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (0)

Monday, February 26, 2018

At just what level of Dante's Inferno does modern ACCA jurisprudence reside?

Dante_s_inferno_by_somnium_maris-d68js14The silly question in the title of this post is my silly reaction to a not-so-silly ruling from a Fourth Circuit panel today flagged for me by a helpful reader.  I will get to that ruling in a minute, but first I must spotlight this website's helpful explanation of the circles of hell set forth in Dante's Inferno:

The Levels of Hell

In Dante's Inferno, Hell is described as having 9 different levels, or circles, each lower than the last.  As one descends into the depths of hell, he comes closer to the 9th circle where Satan himself resides.  Each level of hell is reserved for different types of sinners, and different punishments are inflicted on the damned depending on the nature and severity of their sin.  The greater their sin, the lower the level to which they are condemned to spend eternity.

Notably, the "seventh level of hell is reserved for those who are guilty of violence, whether it be against themselves, property, nature, or other people."  I suppose that would be the fitting level for locating the modern federal court jurisprudence over application of the Armed Career Criminal Act because what is typically debated within this jurisprudence is whether a defendant's prior conviction qualities as a "violent felony." 

But, in referencing Dante's Inferno, I am really thinking about federal criminal practitioners and federal judges who must feel like they are dropping through various levels of hell as they sort through various intricate precedents to try to figure out what is and what is not a "violent felony" for ACCA purposes.  Last week I noted here a big split Fifth Circuit en banc ruling holding that Texas burglary convictions do not serve as predicates for the Armed Career Criminal Act.  Today, it is a Fourth Circuit panel ruling that has my ACCA head hurting; US v. Middleton, No. 16-7556 (4th Cir. Feb. 26, 2018) (available here), gets started this way:

Jarnaro Carlos Middleton was sentenced as an armed career criminal pursuant to the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e).  Middleton challenges the district court’s determination that his prior conviction for South Carolina involuntary manslaughter qualifies as a violent felony under the ACCA.  Due to the idiosyncrasies of the Supreme Court’s “categorical approach,” the ultimate issue in this case is whether selling alcohol to a minor involves the requisite use of violent force.  We conclude that it does not and reverse.

Critically, there is no suggestion in this opinion that Jarnaro Carlos Middleton's conviction for involuntary manslaughter had anything to do with selling alcohol to a minor.  But a 1992 opinion of the Court of Appeals of South Carolina upholds an involuntary manslaughter conviction involving selling alcohol to a minor, and that fact ends up shaping whether Jarnaro Carlos Middleton faces a 15-year statutory mandatory minimum or a 10-year statutory mandatory maximum for the federal crime of being a felon in possession of firearms and ammunition in violation of 18 U.S.C. § 922(g)(1).  Somewhere Franz Kafka (as well as Dante Alighieri) is blushing.  And if the realities of the majority opinion does not whet your ACCA appetite, Middleton comes with a partial concurrence that starts this way:

The majority concludes that a conviction for South Carolina involuntary manslaughter does not categorically qualify as a “violent felony” under the Armed Career Criminal Act (ACCA), 18 U.S.C. § 924(e)(2)(B)(i).  While I agree with that conclusion, I hesitate to join the majority’s analysis.  In my view, our recent decisions in In re Irby, 858 F.3d 231 (4th Cir. 2017), and United States v. Reid, 861 F.3d 523 (4th Cir. 2017), undermine the majority’s reasoning that South Carolina involuntary manslaughter can be committed with de minimis force and by simply causing injury without using force.  Nevertheless, I would hold that South Carolina involuntary manslaughter cannot be an ACCA predicate because, although the ACCA force clause requires a higher degree of mens rea than recklessness, an individual can be convicted of involuntary manslaughter in South Carolina based on reckless conduct.  Therefore, while I write separately as to Part II.B, I concur in part and concur in the judgment reversing the denial of habeas relief.

Natch.

February 26, 2018 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (4)

SCOTUS takes up Alabama case concerning competency to be executed while again turning away post-Hurst capital challenges

The US Supreme Court issued this order list this morning, and capital punishment followers will find a few SCOTUS cert decisions of note.  First, the Court granted certiorari in Madison v. Alabama, No. 17-7505, and the docket number here is quite important because Vernon Madison had two notable cert petitions pending: Madison v. Alabama, 17-7505, which was granted raises asked whether Alabama may "execute a prisoner whose mental disability leaves him without memory of his commission of the capital offense?";  Madison v. Alabama, 17-7535, which was denied raised the issue of whether Alabama could move forward with the execution of a defendant whose death sentence result from the state's now-abolished practice of judicial override.

The death sentencing procedural issue that the Supreme Court decided not to take up in Vernon Madison's case is, of course, yet another off-shoot of what I have long called the "post-Hurst hydra."  After the Supreme Court in Hurst v. Florida declared Florida's death penalty procedures violative of the Sixth Amendment, I coined the term term "post-Hurst hydra" to describe the multi-headed, snake-like litigation destined to develop in various ways in various courts as state and federal judges tried to make sense of just what Hurst must mean for past, present and future capital cases.  I am further reminded of that hydra because today's SCOTUS order list concluded with two short dissents from the denial of certiorari authored by Justices Breyer and Sotomayor in two Florida capital cases.  Justice Sotomayor's dissent is a bit longer and joined by Justice Ginsburg and includes these passages:

Dale Middleton and Randy Tundidor were sentenced to death under a Florida capital sentencing scheme that this Court has since declared unconstitutional.  See Hurst v. Florida, 577 U. S. ___ (2016).  Relying on the unanimity of the juries’ recommendations of death, the Florida Supreme Court post-Hurst declined to disturb the petitioners’ death sentences, reasoning that the unanimity ensured that jurors had made the necessary findings of fact under Hurst.  By doing so, the Florida Supreme Court effectively transformed the pre-Hurst jury recommendations into binding findings of fact with respect to the petitioners’ death sentences.

Having so concluded, the Florida Supreme Court continually refuses to grapple with the Eighth Amendment implications of that holding.  If those then-advisory jury findings are now binding and sufficient to satisfy Hurst, petitioners contend that their sentences violate the Eighth Amendment because the jury instructions in their cases repeatedly emphasized the nonbinding, advisory nature of the jurors’ role and that the judge was the final decisionmaker.  This Court has unequivocally held “that it is constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant’s death rests elsewhere.” Caldwell v. Mississippi, 472 U. S. 320, 328–329 (1985).

February 26, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Sunday, February 25, 2018

What a difference a DA can make: new Philly District Attorney taking new approach to juve lifer resentencings

This recent local article, headlined "Why Philly DA Krasner could let 180+ juvenile lifers out of prison early," reports on the impact the recently elected Philadelphia prosecutor is having local cases demanding resentencing in the wake of the Supreme Court's Eighth Amendment ruling in Miller. Here are the details:

Philadelphia has sentenced more teens to life in prison with no chance of parole than any other jurisdiction in the world — and that meant it had the largest number to resentence after the U.S. Supreme Court two years ago ruled that its 2012 ban on mandatory life-without-parole sentences for minors must be applied retroactively.

As of this week, 127 out of approximately 315 juvenile lifers from Philadelphia have been resentenced. For those whose cases are still in process, the election of District Attorney Larry Krasner appears to have immediately and dramatically changed the outlook.

It means new deals are already on the table for 17 who had rejected offers made under the previous District Attorney’s Office, which mostly stuck close to current state sentencing guidelines that set minimums at 35 years to life for first-degree murder and 30 to life for second-degree murder. The latest offers make all but two of the lifers eligible for parole right away; it would also keep them all on parole for life. Some set minimums as low as 21 years for first-degree murder.

As for the remaining resentencings, Krasner said he intends to consider each case individually. Rather than relying on the sentencing guidelines, he said he would look to the historical, national and international context that has made Pennsylvania second in the nation in imposing life-without-parole sentences. “We are being consistent as we do our duty, which is to consider all these unique factors in resentencing,” he said. “It’s worth bearing in mind that Pennsylvania is an extreme outlier in excessive sentencing, and the United States is an extreme outlier in excessive sentencing.”

What’s unclear, however, is whether a Philadelphia judge will sign off on those agreements. At a recent status hearing, Common Pleas Judge Kathryn Streeter-Lewis, who is in charge of approving agreements in juvenile-lifer cases, asked the district attorney to submit briefs defending the deals’ legality in light of precedent-setting rulings by Pennsylvania’s appellate courts in the case of Qu’eed Batts, an Easton man who was 14 when he participated in a gang-related execution. In his case, the court acknowledged each judge has discretion to craft individualized minimum sentences, but said “sentencing courts should be guided” by current state law. “I understand that there is a different administration,” she said, but added, “Some of these [offers] are very much below the guidelines the decision required. … I’m going to need some reasons.”

One such case involved Avery Talmadge, who’s been locked up 22 years and was offered a time-served deal that — in a departure from past practice for the District Attorney’s Office — contemplates whether the original conviction was even appropriate. “The case was a street fight that turned into a shooting,” Assistant District Attorney Chesley Lightsey told Streeter-Lewis. “The [DAO’s internal resentencing] committee believes this is closer to a third-degree, though it was a first-degree conviction.” She said he also had an excellent prison record, reflecting the Supreme Court’s underlying rationale that kids, while impulsive and immature, also have a great capacity for rehabilitation.

Bradley Bridge of the Defender Association, which represents many of the lifers, believes the new offers will withstand judicial scrutiny — and that of the public. Krasner, he said, “sees the dangers of overincarceration and has come up with a meaningful solution.  He has reevaluated offers and, consistent with the protection of the public, has recognized that new offers can take into account to a more significant degree the juvenile’s growth while in prison.”...

Krasner said offers he’s approved so far have included minimums ranging between 40 years and just under 20 years.  He declined to specify a floor for minimum sentences. “I see no arbitrary number. We are approaching this the way the Anglo-American court system has approached these for centuries: on a case-by-case basis.”

February 25, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

Thursday, February 22, 2018

Florida Supreme Court finds that state's Miller fix statute to death with Eighth Amendment problems has Alleyne Sixth Amendment problem

The Florida Supreme Court issues an interesting ruling today dealing with juvenile sentencing in Williams v. Florida, No. SC17-506 (Fla. Feb 22, 2018) (available here). Here are the basics from the start of the ruling: 

This case is before the Court for review of the decision of the Fifth District Court of Appeal in Williams v. State (Williams II), 211 So. 3d 1070 (Fla. 5th DCA 2017).  In its decision, the Fifth District ruled upon the following question certified to be of great public importance:

DOES ALLEYNE V. UNITED STATES, 570 U.S. 99, 133 S. Ct. 2151, 186 L. Ed. 2d 314 (2013), REQUIRE THE JURY AND NOT THE TRIAL COURT TO MAKE THE FACTUAL FINDING UNDER SECTION 775.082(1)(b), FLORIDA STATUTES (2016), AS TO WHETHER A JUVENILE OFFENDER ACTUALLY KILLED, INTENDED TO KILL, OR ATTEMPTED TO KILL THE VICTIM?

Id. at 1073. We have jurisdiction. See art. V, § 3(b)(4), Fla. Const. For the reasons explained below, we hold that Alleyne requires a jury to make the factual finding, but conclude that Alleyne violations are subject to harmless error review. Where the error cannot be deemed harmless, the proper remedy is to resentence the juvenile offender pursuant to section 775.082(1)(b)2., Florida Statutes (2016).

As the opinion goes on to explain, the statute here was passed when Florida had to comply with the Supreme Court's Eighth Amendment Miller ruling precluding mandatory LWOP sentences for juvenile murderers.  The statute provides that a finding that "a juvenile offender actually killed, intended to kill, or attempted to kill the victim leads to a minimum forty-year sentence with a sentence review after twenty-five years — whereas a finding that the offender did not actually kill, intend to kill, or attempt to kill the victim results in there being no minimum sentence and a sentence review after fifteen years."

The Florida Supreme Court was unanimous here in concluding that this statute has to comply with Alleyne's Sixth Amendment ruling that jury trial rights extend to any fact that raises a binding minimum sentence.  Hard-core sentencing proceduralists might still want to check out the Court's discussion, especially because there is an interesting partial dissent that starts this way:

I agree with the majority that under Alleyne v. United States, 570 U.S. 99 (2013), the factual findings provided for in section 775.082(1)(b), Florida Statutes (2016), must be made by the jury and that the absence of such jury findings in this case requires reversal of the sentence imposed under section 775.082(1)(b)1. and resentencing in the trial court.  But I dissent from the majority’s direction regarding the remand, which requires imposition of the less severe sanction available under the statute.  Because the issue of the remedy on remand has not been briefed in this case, I would simply direct remand for resentencing rather than preclude jury proceedings that might result in imposition of the more severe sentence under the statute.

February 22, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (0)

Tuesday, February 20, 2018

Split en banc Fifth Circuit holds that Texas burglary convictions do not serve as predicates for federal Armed Career Criminal Act

I long ago gave up trying to keep up with all the intricate litigation and jurisprudence in circuit courts dealing with predicate offenses that can trigger the severe mandatory minimum sentences of the Armed Career Criminal Act.  But every so often, a big ACCA ruling comes down the pike, and today is one of those days as an en banc Fifth Circuit, splitting 8-7, has decided Texas burglary convictions cannot serve as an ACCA predicate.  The majority ruling by Judge Higginbotham in US v. Herrold, No. 14-11317 (5th Cir. Feb. 20, 2018)  (available for download below), gets off to this interesting start and then summarizes its holding 30+ pages later:

Three decades ago, Congress set the courts upon a new course for the sentencing of federal defendants, moving away from a long-in-place system that gave wide discretion to federal judges to impose sentences from nigh no prison time to effective life sentences.

But this discretion was not so wide in practice as in appearance — the judge’s sentence gave way when the prisoner left the court for prison.  The total time served by the prisoner was on his arrival determined in the main by a parole commission.  The commission determined release dates, and in a rough and crude way — relative to the work of the Sentencing Commission — anticipated the system now in place by using a scoring system that looked in part to a defendant’s criminal history.  In response to charges from the Left of disparate and from the Right of anemic sentencing, and thus with the support of both ends of the political spectrum, Congress shifted the focus to a defendant’s individual circumstances on the one hand and mandatory minimum sentences tailored to particular crimes on the other.  With much work from its newly erected Sentencing Commission, nourished by reflection, essential empirical study, and judges tasked with applying its regulations, this reform effort appears to now be understood by bench and bar, enjoying a measure of well-earned credibility.  Yet its relatively calibrated system of adjustments struggles with rifle-shot statutory efforts deploying an indeterminate calculus for identification of repetitive, sentence-enhancing conduct that add on to the sentence produced by the guidelines, such as the Armed Career Criminal Act. In setting a federal criminal sentence the district judge looks, in part, to both the number and type of a defendant’s prior convictions, a task complicated by the statute’s effort to draw on criminal conduct bearing differing labels and boundaries set by the various states.  Today, we continue to refine our efforts....

To summarize, the burglary provisions encoded in Texas Penal Code §§ 30.02(a)(1) and (3) are indivisible. Texas Penal Code § 30.02(a)(3) is nongeneric because it criminalizes entry and subsequent intent formation rather than entry with intent to commit a crime.  For these reasons, Herrold’s ACCA sentence enhancement cannot stand. We VACATE and REMAND to the district court to resentence him in accordance with our decision today. 

A lengthy dissent authored by Judge Haynes provides a succinct account of why this ruling is a big deal (and could be SCOTUS bound):

The majority opinion upends years of well-settled law. Just over a year ago, this court confirmed that Texas Penal Code § 30.02(a) is a divisible statute, and the Supreme Court denied certiorari.  United States v. Uribe, 838 F.3d 667 (5th Cir. 2016), cert. denied, 137 S. Ct. 1359 (2017). The effect of the majority opinion, in addition to unsettling established precedent, is to render all burglary convictions in the second-most populous state in the country nullities as far as the ACCA is concerned.  That is no small thing. In just a single year, Texans reported 152,444 burglaries, all of which now escape the ACCA’s reach. See TEX. DEP’T PUB. SAFETY, CRIME IN TEXAS 2015 6 (2015), http://www.dps.texas.gov/crimereports/15/citCh2.pdf.  From this misguided determination, I respectfully dissent.

Download Herrold slip op

February 20, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Friday, February 16, 2018

New GAO report explores "Federal Prisons: Information on Inmates with Serious Mental Illness and Strategies to Reduce Recidivism"

The United States Government Accountability Office yesterday released this lengthy report with the title that is the quoted portion of the title of this post.  This "Highlights" page summarizes "What GAO Found":

About two-thirds of inmates with a serious mental illness in the Department of Justice's (DOJ) Federal Bureau of Prisons (BOP) were incarcerated for four types of offenses — drug (23 percent), sex offenses (18 percent), weapons and explosives (17 percent), and robbery (8 percent) — as of May 27, 2017.  GAO's analysis found that BOP inmates with serious mental illness were incarcerated for sex offenses, robbery, and homicide/aggravated assault at about twice the rate of inmates without serious mental illness, and were incarcerated for drug and immigration offenses at about half or less the rate of inmates without serious mental illness.  GAO also analyzed available data on three selected states' inmate populations and the most common crimes committed by inmates with serious mental illness varied from state to state due to different law enforcement priorities, definitions of serious mental illness and methods of tracking categories of crime in their respective data systems.

BOP does not track costs related to incarcerating or providing mental health care services to inmates with serious mental illness, but BOP and selected states generally track these costs for all inmates.  BOP does not track costs for inmates with serious mental illness in part because it does not track costs for individual inmates due to resource restrictions and the administrative burden such tracking would require.  BOP does track costs associated with mental health care services system-wide and by institution.  System-wide, for fiscal year 2016, BOP spent about $72 million on psychology services, $5.6 million on psychotropic drugs and $4.1 million on mental health care in residential reentry centers.  The six state departments of corrections each used different methods and provided GAO with estimates for different types of mental health care costs.  For example, two states provided average per-inmate costs of incarceration for mental health treatment units where some inmates with serious mental illness are treated; however, these included costs for inmates without serious mental illness housed in those units.

DOJ, Department of Health and Human Service's Substance Abuse and Mental Health Services Administration (SAMHSA), and criminal justice and mental health experts have developed a framework to reduce recidivism among adults with mental illness.  The framework calls for correctional agencies to assess individuals' recidivism risk and substance abuse and mental health needs and target treatment to those with the highest risk of reoffending.  To help implement this framework, SAMHSA, in collaboration with DOJ and other experts, developed guidance for mental health, correctional, and community stakeholders on (1) assessing risk and clinical needs, (2) planning treatment in custody and upon reentry based on risks and needs, (3) identifying post-release services, and (4) coordinating with community-based providers to avoid gaps in care.  BOP and the six states also identified strategies for reducing recidivism consistent with this guidance, such as memoranda of understanding between correctional and mental health agencies to coordinate care.  Further, GAO's literature review found that programs that reduced recidivism among offenders with mental illness generally offered multiple support services, such as mental health and substance abuse treatment, case management, and housing assistance.

February 16, 2018 in Offender Characteristics, Reentry and community supervision | Permalink | Comments (1)

Thursday, February 15, 2018

Will Florida school shooting mass murderer thwart efforts to raise age for limit on application of the death penalty?

As noted in this post last week, the ABA House of Delegates earlier this month asked for all death penalty jurisdictions to ban capital punishment for any offender who committed their crime at the age of 21 or younger.  But, as the title of this post wonders, the push for raising the age on limits on the death penalty could be impacted by the horrible crimes committed yesterday in Florida.  This article, "Suspect in Florida shooting could face death penalty for 17 counts of premeditated murder," provide these basics:

Nikolas Cruz, the suspect in the shooting at a Florida high school on Wednesday, could face the death penalty after being charged with 17 counts of premeditated murder.

Sheriffs in Broward County posted custody records online Thursday, the morning after they arrested Cruz. They listed 17 separate counts of premeditated murder, matching the latest casualty figures from officials.

Cruz, 19, will stand trial as an adult. In Florida, a judge can impose the death penalty if a sentencing jury unanimously recommends it.

I am not at all surprised that Cruz may soon be facing the death penalty, and I will not be at all surprised if supports of the death penalty will make Cruz a poster-child example of why the age for death penalty eligibility ought not be raised.

A few prior related posts:

February 15, 2018 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (37)

"Aching bad: 'Kingpin Granny' nicked in huge prescription drugs bust"

As a fan of Breaking Bad, I could not resist using the title of this news report of a notable drug dealer as the title of this post.  Here is the story:

Silver surfers are known to rattle from the numerous pills foisted on them by doctors as their health fails, but one Tennessee veteran stands accused of possessing drugs with an altogether different purpose.

Dubbed "Kingpin Granny" by Decatur County cops, The Smoking Gun reported that 75 year-old wheelchair-bound Betty Jean Jordan was arrested at her home in Parsons, 160km (100 miles) southwest of Nashville, on Friday following an undercover investigation in which agents bought tabs from her.

The subsequent raid on the gangster granny's property uncovered over a thousand pills including the opioid painkiller Oxycodone, smack addict weaner Methadone and anti-anxiety tranq Xanax. Cops also said they seized more than $12,000 in "cash and assets".

Jordan was slapped with six felony narcotic charges – one count of drug manufacturing/delivery/sale, two counts of possession of a prescription drug with intent, one count of possession of a prescription drug – plus one count of evading arrest.

The little old lady was taken to the county slammer but was released after posting the $50,000 bond. Meanwhile, authorities are further investigating the alleged distribution ring and hope to make more arrests.

February 15, 2018 in Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (0)

Wednesday, February 14, 2018

"Reentry Court Research: An Overview of Findings from the National Institute of Justice’s Evaluation of Second Chance Act Adult Reentry Courts"

The title of this post is the title of this new report on findings about eight programs that received funding and technical assistance from the Bureau of Justice Assistance under the Second Chance Act of 2007.  Here is part of the report's abstract:

Background: There are myriad challenges associated with the reentry of formerly incarcerated individuals, coupled with a dearth of rigorous research examining reentry courts. It is well known that formerly incarcerated individuals face overwhelming obstacles, such as limited occupational or educational experiences to prepare them for employment, drug and alcohol addictions, mental and physical health challenges, strained family relations, and limited opportunities due to the stigma of a criminal record.  Reentry courts seek to address these challenges by assessing the individuals for risks and needs; linking them to appropriate community-based services; and overseeing the treatment process through ongoing court oversight, probation or parole supervision, and case management.  Under the Second Chance Act (SCA) of 2007 (Pub. L. 110-199), the Bureau of Justice Assistance funded reentry programs including the eight sites participating in this National Institute of Justice Evaluation of SCA Adult Reentry Courts.  This document provides a summary overview of the evaluation and complements three annual reports that provide more detailed information on the program processes and populations, research methods, and findings....

Results: Results were mixed across sites.  One site consistently demonstrated positive outcomes across the interview, recidivism, and cost analyses with the reentry court successfully delivering more substance abuse treatment and other services than what was received by the comparison group.  In addition, reentry court participants out-performed the comparison group in reduced recidivism (re-arrests and re-conviction) and reincarceration (revocation and time in jail or prison).  Two sites had neutral, trending toward positive, results with reduced participant re-arrests but with other outcomes (such as convictions and re-incarceration) not significantly different between the participants and the comparison group.  Two other sites had mixed results (e.g., participants had significantly fewer re-arrests but significantly increased re-incarceration) and two had negative results (e.g., participants had significantly more re-arrests and incarceration while other outcomes were no different between groups).  Cost findings were similarly mixed with two sites experiencing cost savings due mainly to lower recidivism costs and fewer victimization costs for reentry court participants ($2,512 and $6,710 saved per participant) and the remainder experiencing loss (ranging from just over -$1,000 to almost -$17,000 loss per participant). The research protocol and process evaluation findings are documented in three annual project reports; research caveats include a lack of detailed treatment service data. Also, reentry court program investment costs are described, but the comparison of cost estimates is limited to outcomes and does not include net benefits based on investment in non-reentry court case processing in the comparison group.

Conclusions: Key processes that set the one site with positive outcomes apart from the other sites was the high level of consistency and intensity of substance abuse treatment, wraparound services for multiple criminogenic needs, high intensity supervision, as well as an increased use of praise from the judge along with other incentives and sanctions.  In addition, the eligibility criteria for this site required that participants have a substance use disorder with risk levels ranging from moderate to high (based on their local risk assessment with a three point scale that ranged from low to high).  In contrast, other site eligibility criteria did not require a substance use disorder and participant risk levels were mostly high to very high (depending on the assessment tool used and their specific scoring and risk category criteria).  It is possible that the sites with less positive results did not have the appropriate level and type of services consistently available to best serve the varying risk levels of their participants.

This detailed report reinforces yet again the conclusion I often, somewhat depressingly, reach when looking at careful research on an important topic: many of our most pressing criminal justice problems are really complicated and lack simple solutions.

February 14, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (0)

Tuesday, February 13, 2018

Retired Missouri judge now expressing regret about giving 16-year-old offender 241 years in prison for role in two armed robberies

Evelyn Baker, a retired Missouri circuit court judge, has this notable new opinion piece in the Washington Post under the headline "I sentenced a teen to die in prison. I regret it." Here are excerpts:

“You will die in the Department of Corrections.” Those are the words I spoke as a trial judge in 1997 when I sentenced Bobby Bostic to a total of 241 years in prison for his role in two armed robberies he committed when he was just 16 years old.

Bostic and an 18-year-old friend robbed a group of six people who were delivering Christmas presents to a needy family in St. Louis.  Two shots were fired.  A bullet grazed one person, but no one was seriously injured.  The two then abducted and robbed another woman — who said she was groped by Bostic’s accomplice before the two released her. They used the money they stole from her to buy marijuana.  Despite overwhelming evidence against him, Bostic chose to go to trial.  He was found guilty.

Bostic had written me a letter trying to explain his actions, but despite this, he had not, in my view, demonstrated sufficient remorse.

I told him: “You are the biggest fool who has ever stood in front of this court. . . . You made your choice. You’re gonna have to live with your choice, and you’re gonna die with your choice. . . . Your mandatory date to go in front of the parole board will be the year 2201.  Nobody in this room is going to be alive in the year 2201.”

I thought I was faulting Bostic for his crimes.  Looking back, I see that I was punishing him both for what he did and for his immaturity.  I am now retired, and I deeply regret what I did.  Scientists have discovered so much about brain development in the more than 20 years since I sentenced Bostic.  What I learned too late is that young people’s brains are not static; they are in the process of maturing.  Kids his age are unable to assess risks and consequences like an adult would.  Overwhelming scientific research shows that children lack maturity and a sense of responsibility compared with adults because they are still growing.  But for the same reason, they also have greater capacity for reform.

That’s perhaps not surprising.  As a society, we recognize that children and teens cannot and do not function as adults.  That’s why below a certain age you cannot vote, join the military, serve on a jury or buy cigarettes or alcohol....

Most courts have understood the Supreme Court’s 2010 decision to mean that the Constitution prohibits sentences like the one I gave to Bostic.  While I did not technically give him “life without parole,” I placed on his shoulders a prison term of so many years combined that there is no way he will ever be considered for release.  He won’t become eligible for parole until he is 112 years old — which means he will die in prison, regardless of whether he rehabilitates himself or changes as he grows older.

I see now that this kind of sentence is as benighted as it is unjust.  But Missouri and a handful of other states still allow such sentences, and the Missouri courts have affirmed the sentence I handed down.

This week, the Supreme Court will consider whether to take Bostic’s case and, if the justices do, they will decide whether his sentence is an outcome the Constitution can countenance.  The court should take the case and give Bostic the chance I did not: to show that he has changed and does not deserve to die in prison for something he did when he was just 16.

Imposing a life sentence without parole on a child who has not committed murder — whether imposed in a single sentence or multiple sentences, for one crime or many — is wrong.  Bostic was immature, and I punished him for that.  But to put him, and children like him, in prison for life without any chance of release, no matter how they develop over time, is unfair, unjust and, under the Supreme Court’s 2010 decision, unconstitutional.

I am pleased to see a judge who imposed a functional LWOP sentence now recognizing and advocating that functional LWOP sentences create the same constitutional concerns as formal LWOP sentences that the Supreme Court found to violate the Eighth Amendment in Graham.  That said, I find it a little rich this judge now asserting that she "learned too late" that juvenile brains are different than adult brains.  Also, as the judge's commentary hints and as this local article from a few years ago about the case confirms, it seems Bostic's decision to go to trial rather than his crimes largely accounts for his need now to seek constitutional relief from the Supreme Court:

Bostic is serving a vastly greater sentence than Hutson, his accomplice, who received 30 years and will be eligible for parole six years from now.

Both men were accused of firing guns that night. The only difference: Bostic went to trial and Hutson pleaded guilty.

February 13, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (10)

"Brain Development, Social Context and Justice Policy"

The title of this post is the title of this new paper available via SSRN authored by Elizabeth Scott, Natasha Duell and Laurence Steinberg. Here is its abstract:

Justice policy reform in the past decade has been driven by research evidence indicating that brain development is ongoing through adolescence, and that neurological and psychological immaturity likely contributes in important ways to teenagers’ involvement in crime.  But despite the power of this trend, skeptics point out that many (perhaps most) adolescents do not engage in serious criminal activity; on this basis, critics argue that normative biological and psychological factors associated with adolescence are unlikely to play the important role in juvenile offending that is posited by supporters of the reform trend.  This Article explains that features associated with biological and psychological immaturity alone do not lead teenagers to engage in illegal conduct.  Instead the decision to offend, like much behavior in adolescence, is the product of dynamic interaction between the still-maturing individual and her social context.  The Article probes the mechanisms through which particular tendencies and traits linked to adolescent brain development interact with environmental influences to encourage antisocial or prosocial behavior.

Brain development in adolescence is associated with reward-seeking behavior and limited future orientation.  Further, as compared to adults, adolescents are particularly sensitive to external stimuli (particularly peers), easily aroused emotionally, and less able to regulate strong emotions.  The Article shows how these tendencies may be manifested in different teenagers in different ways, depending on many factors in the social context.  By analyzing this intricate relationship, the Article clarifies how social environment influences adolescent choices in ways that incline or deter involvement in crime and in other risky behavior.  Thus a teenager who lives in a high-crime neighborhood with many antisocial peers is more likely to get involved in criminal activity than one in a neighborhood with few such peers, even though the two may not differ in their tendencies and propensities for risk-taking.

The Article’s interactive model offers powerful support for laws and policies that subject adolescent offenders to more lenient sanctions than adults receive and that tailor dispositions to juveniles’ developmental needs.  Our examination confirms and illuminates the Supreme Court’s conclusion that juvenile offenders differ in important ways from adult counterparts; juveniles deserve less punishment because their offenses are driven by biological and psychological immaturity, and also because, as legal minors, they cannot extricate themselves from social contexts (neighborhoods, schools and families) that contribute- to involvement in crime.  The model also confirms that correctional facilities and programs, which constitute young offenders’ social settings, can support healthy development to adulthood in individual offenders, or affect their lives in harmful ways.

February 13, 2018 in Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (1)

Saturday, February 10, 2018

Should there be (and will there be) an appeal of federal judge's imposition of "shorter sentence because ... of [defendant's] decision to be sterilized"?

Mf-law-day-bbf-3-5-4-15-300x160In this post a couple of days ago, I noted the remarkable federal sentencing story out of Oklahoma in which a defendant was seemingly seeking a reduced sentence in a fraud case because she followed a judge's suggestion in this order that she consider taking steps to be "rendered incapable of procreation."  This follow up article, headlined "Oklahoma woman gets shorter prison sentence because she got sterilized," the defendant's decision to follow the judge's suggestion seemingly reduced her sentence a few months. Here are the details:

A judge Thursday showed leniency to a drug-using mother of seven because she had surgery to prevent further pregnancies.  Summer Thyme Creel, 34, was sentenced to a year in federal prison and three years on supervised release for passing counterfeit checks.  She was ordered to pay $15,246 in restitution.

Creel voluntarily underwent the medical procedure in November after the Oklahoma City federal judge suggested it in a scheduling order. "She will receive a shorter sentence because she made that decision," U.S. District Judge Stephen Friot said before announcing the punishment.  Friot on Thursday also defended his sterilization suggestion, saying the U.S. Supreme Court "has yet to recognize a constitutional right to bring crack- or methamphetamine-addicted babies into this world."

In his order last June, the judge called Creel a habitual user of crack cocaine and methamphetamine. He wrote in that order she had given up her parental rights to six of her seven children and likely had used illegal drugs while pregnant.  He then wrote he would consider at sentencing medical evidence Creel had undergone a sterilization procedure "if (and only if) she chooses to do so."

Creel had faced up to 16 months in federal prison under sentencing guidelines intended to keep punishments uniform across the country.  Judges do not have to follow the guidelines, though, and the maximum possible punishment for Creel's offense was 10 years in prison.  The unusual order — first reported by The Oklahoman — attracted national and international attention.  The judge has been both praised and condemned.

"When I read the order, I was horrified,” Lynn Paltrow, founder of the National Advocates for Pregnant Women, told The Washington Post. "We find it highly unlikely that this judge has asked any man how many children he fathered and used that in his sentencing determination."  The judge Thursday did not directly comment on the public criticism.

He did state his order last year had made clear that "the decision as to whether to be sterilized would be for Ms. Creel and Ms. Creel alone to make." He also explained he would not have counted it against Creel if she had decided against the procedure. "She would have come before the court in the same posture as any other habitual criminal," he said. "Her fertility would have been a non-issue."

The judge chided a prosecutor for telling him in a sentencing memorandum Creel has "a fundamental constitutional right to procreate." The prosecutor in the memo had cited a 1942 U.S. Supreme Court decision that found unconstitutional Oklahoma's Habitual Criminal Sterilization Act. "This is rather curious," the judge said of the prosecutor's position on the issue. The judge then pointed out the 1942 decision had involved involuntary sterilization. He said the prosecutor apparently overlooked that fact.

Creel was punished Thursday for her involvement in a fraudulent check-cashing ring that used information from stolen mail to manufacture counterfeit checks. "Theirs was a systematic and successful identity theft scheme," the judge said.  She pleaded guilty last year to one federal counterfeiting offense.  She admitted she had passed a $202.22 counterfeit check in 2014 at a Walmart in Moore.

She has prior theft and counterfeit check convictions in county courts but always received probation.  She originally had sought probation in her federal case. That possibility ended when she was arrested for passing a $121.71 counterfeit check at a Hobby Lobby in Midwest City a month after pleading guilty.

She also has tested positive for methamphetamine use — twice — since her guilty plea. The second time, the judge had her jailed pending sentencing. Her defense attorney, Brett Behenna, told the judge Creel has had a tough life and became caught in a cycle of poverty. He said she turned to illegal drugs as an escape....

"I'm sorry for the mistakes that I made," Creel told the judge. Another participant in the scheme, Amber L. Perkins, 43, was sentenced last March to five years in prison and ordered to pay $159,753 in restitution.

This five-page order that the Judge Friot issued in conjunction with the sentencing leaves no doubt that the defendant's sterilization decision was a consequential factors in his sentencing decision. Here are the closing paragraphs of the order:

If anything was clear from the court’s June order, it was that the decision as to whether to be sterilized would be for Ms. Creel and Ms. Creel alone to make.  The short of the matter is that Ms. Creel will get the benefit of her decision to be sterilized.  She will receive a shorter sentence because she made that decision.  But a decision not to be sterilized would not have counted against Ms. Creel for sentencing purposes — she would have come before the court in the same posture as any other habitual criminal. Her fertility status would have been a nonissue.  Moreover, if we assume, as the government urges, that the court’s approach to sentencing in this case might raise a constitutional issue, the court will note that the Supreme Court has yet to recognize a constitutional right to bring crack or methamphetamine addicted babies into this world.

Accordingly, in determining the sentence to be imposed upon Ms. Creel, the court will take into account all of the factors spelled out in 18 U.S.C. § 3553, a determination which will give Ms. Creel the benefit of her decision to be sterilized.

As federal sentencing gurus know, any appeal of this sentencing proceeding would be generally subject to a reasonableness standard of review. Though I have not read the full record, I am still inclined to consider Judge Friot's work here unreasonable because he unduly suggested that sterilization was an essential (and perhaps exclusive) way for this defendant to "earn" a below-guideline sentence. 

I generally believe (and often have argued) that a wide range of considerations can and should be brought to bear as a federal sentencing judge considers, under 18 U.S.C § 3553(a), what sentence will be "sufficient, but not greater than necessary, to comply with the purposes set forth" by Congress.  But it strikes me as highly problematic for a judge, prior to sentencing, to tell a defendant that a reduced sentence will be possible if (and perhaps only if) the defendant engages in specific life-altering personal behavior.  The procreation dynamics here are particularly concerning in light of some ugly history on this front; but I would also be troubled if a judge said to a defendant, for example, I will likely cut you a sentencing break only if you divorce that spouse who pressured you into criminal activity or only if you contractually commit to giving 50% of all future salary to charity.

That all said, and as my post title suggests, I suspect that there will not be an appeal of this sentence by the federal government (or the defense) and so we will not likely see a higher court reviewing Judge Friot's work here.  But, of course, that should not prevent the court of public opinion from chiming in, perhaps using the comments here.

Prior related post:

February 10, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)

Thursday, February 08, 2018

Should (encouraged!?!) sterilization be a permissible federal sentencing factor in mitigation?

The question in the title of this post is prompted by a remarkable federal sentencing story out of Oklahoma reported in this local article headlined "Woman underwent sterilization procedure at judge’s suggestion." Here are the details:

At a judge's suggestion, an admitted drug user involved in a counterfeit check ring underwent a medical procedure preventing her from having more children.

Summer Thyme Creel, 34, had the elective procedure in November after the judge wrote he could consider it at her sentencing if she chose to do so. Her sentencing is now set for Thursday in Oklahoma City federal court.

U.S. District Judge Stephen Friot made the unusual suggestion in an order last June. He noted in the order Creel had given up her parental rights to six of her seven children and likely had used illegal drugs while pregnant with some of them. "I spoke with her in detail about it and she voluntarily wanted to do it," her court-appointed defense attorney, Brett Behenna, said.

A prosecutor is urging the judge not to consider the procedure as a factor at sentencing. "Creel not only has a fundamental constitutional right to procreate ... but she admits that she had an interest in an elective sterilization procedure even before the court's order of June 16," Assistant U.S. Attorney Jessica Perry told the judge in a sentencing memo.

"Furthermore, Creel's decision to have (or not have) additional children is sufficiently removed from the type of criminal activity involved in this case that such a factor is irrelevant to determining a sentence," the prosecutor wrote.

Creel has a lengthy criminal record involving theft and counterfeit check crimes. She is listed in court records over the last two years at addresses in Oklahoma City, Checotah and Lawton. She was charged for the first time in federal court in 2016. A federal grand jury alleged she and others participated in a counterfeit ring that relied on mail stolen from mailboxes.

Creel pleaded guilty a year ago to a single count in the indictment for using a $202.22 counterfeit check at a Walmart in Moore in 2014. Her sentencing has been delayed for a number of reasons, the first time because she couldn't show up in court. She was in the Oklahoma County jail for using a counterfeit check at a Hobby Lobby in Midwest City....

In delaying the sentence the first time, the judge made note of both Creel's criminal past and her history as a mother. "By virtue of a series of relationships with various sires over approximately the last 14 years, Ms. Creel has given birth to seven children out of wedlock," the judge wrote in the June order.

"Comparing the dates of Ms. Creel's periods of habitual use of crack cocaine and methamphetamine ... with the dates of birth of her seven children, it appears highly likely that some of Ms. Creel's children were conceived, carried and born while Ms. Creel was a habitual user of these illicit substances," the judge wrote.

"It comes as no surprise, therefore, that, in 2012, Ms. Creel relinquished her parental rights with respect to six of her seven children 'after an Oklahoma Department of Human Services investigation for failure to protect the children from harm.' Her seventh child was born in 2016," the judge wrote.

The judge then pointed out he can consider at sentencing any information concerning the background, character and conduct of an offender. Finally, he told Creel in his order that at her sentencing she "may, if (and only if) she chooses to do so, present medical evidence to the court establishing that she has been rendered incapable of procreation."

The June order referenced in this story, which runs only two pages, can be accessed at this link.  It closes by noting that Congress has provided via 18 U,S.C § 3661 that "No limitation shall be placed on the information concerning the background, character, and conduct of a person convicted of an offense which a court of the United States may receive and consider for the purpose of imposing an appropriate sentence." I am inclined also to note that in 18 U.S.C § 3553(a)(1) Congress ordered federal judges to consider "the history and characteristics of the defendant" at sentencing.  So there is certainly a statutory basis for Judge Friot to defend his approach to Ms. Creel's case.  I am eager to hear readers' thoughts as to whether Judge Friot's approach is sound and wise even if it may be statutorily defensible.

February 8, 2018 in Booker in district courts, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, February 07, 2018

Sentencing Reform and Corrections Act of 2017 on the agenda for the Senate Judiciary Committee coming meeting

A helpful colleague made sure I saw the exciting news appearing at the very bottom of this agenda for an Executive Business Meeting of the United States Senate Committee on the Judiciary.  After a long list on nominees, we see on that agenda this item:


II. Bills
S.1917 Sentencing Reform and Corrections Act of 2017 (Grassley, Durbin, Graham, Feinstein, Lee, Leahy, Flake, Whitehouse, Klobuchar, Booker)   

I think this notice means that there is now some tangible movement (dare I say momentum) on one very significant federal criminal justice proposal.  Clicking though to the text of S.1917 Sentencing Reform and Corrections Act of 2017, one discovers that this bill has a whole lot of stuff stuffed into its three big sections. For example, "TITLE I — SENTENCING REFORM" includes, inter alia:

Sec. 101. Reduce and restrict enhanced sentencing for prior drug felonies."

Sec. 102. Broadening of existing safety valve....

Sec. 106. Mandatory minimum sentences for domestic violence offenses....

Sec. 108. Inventory of Federal criminal offenses.

Sec. 109. Fentanyl.

And "TITLE II — CORRECTIONS ACT" includes, inter alia:

Sec. 202. Recidivism reduction programming and productive activities.

Sec. 203. Post-sentencing risk and needs assessment system....

Sec. 207. Promoting successful reentry.

Sec. 208. Parole for juveniles.

Sec. 209. Compassionate release initiative.  

And "TITLE III — NATIONAL CRIMINAL JUSTICE COMMISSION ACT" would create another notable federal criminal justice entity.

I can state with confidence that Attorney General Jeff Sessions is surely opposed to the provisions in Title I of this bill, but I he may be supportive of Title II and maybe even Title III. And, of course, since he is no longer in the Senate, Jeff Sessions does not get a vote on legislation, and it will be interesting to see (assuming there is a vote tomorrow of sometime soon) whether there are many (or any) strong opponents of this bill even in this huge form.

February 7, 2018 in Aspects and impact of Sentencing Reform and Corrections Act, Federal Sentencing Guidelines, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Reentry and community supervision, Who Sentences? | Permalink | Comments (2)

Tuesday, February 06, 2018

ABA House of Delegates enacts resolution urging prohibition of death penalty's application to those under 21

Images (5)As reported in this ABA Journal posting, the "ABA House of Delegates on Monday asked all death penalty jurisdictions to ban capital punishment for any offender who committed their crime at the age of 21 or younger." Here is more:

In the report accompanying the resolution, the chairs of the Death Penalty Due Process Review Project and the Section of Civil Rights and Social Justice wrote: “In light of this evolution of both the scientific and legal understanding surrounding young criminal defendants and broader changes to the death penalty landscape, it is now time for the ABA to revise its dated position and support the exclusion of individuals who were 21 years old or younger at the time of their crime.”

The language of Resolution 111 makes clear that the ABA is not taking a position “supporting or opposing the death penalty.”

In a motion to amend, Robert L. Weinberg, a past president of the District of Columbia Bar and the Bar Association of the District of Columbia, proposed removing that language. He brought up a CLE session held earlier during this midyear meeting by Cassandra Stubbs of the ACLU Capital Punishment Project. “We stand almost alone among the progressive democracies in adhering to capital punishment,” he said....

Michael Byowitz, the Board of Governors’ liaison to the Death Penalty Due Process Review Project, rose to speak in opposition to Weinberg’s amendment.... Byowitz said marginal efforts chipping away at the use of the death penalty are the most effective ways of addressing the problem. “We will be ignored if we are perceived in many of the councils that matter as against the death penalty,” he said. “Let’s not let the perfect be the enemy of the good.”...

The amendment was defeated in a divided vote. Resolution 111 was passed overwhelmingly.

The full Resolution and Report can be accessed at this link.  The report runs a dozen pages and concludes this way:

In the decades since the ABA adopted its policy opposing capital punishment for individuals under the age of 18, legal, scientific and societial developments strip the continued application of the death penalty against individuals in late adolescence of its moral or constitutional justification.  The rationale supporting the bans on executing either juveniles, as advanced in Roper v. Simmons, or individuals with intellectual disabilities, as set forth in Atkins v. Virginia, also apply to offenders who are 21 years old or younger when they commit their crimes.  Thus, this policy proposes a practical limitation based on age that is supported by science, tracks many other areas of our civil and criminal law, and will succeed in making the administration of the death penalty fairer and more proportional to both the crimes and the offenders.

In adopting this revised position, the ABA still acknowledges the need to impose serious and severe punishment on these individuals when they take the life of another person.  Yet at the same time, this policy makes clear our recognition that individuals in late adolescence, in light of their ongoing neurological development, are not among the worst of the worst offenders, for whom the death penalty must be reserved.

February 6, 2018 in Death Penalty Reforms, Offender Characteristics, Who Sentences? | Permalink | Comments (3)

Advocating for postpartum mental illness to be an express mitigating sentencing factor

The Hill has this notable new sentencing commentary authored by doctors Katherine Wisner and Cara Angelotta headlined "Accounting for postpartum depression in criminal sentencing is the right move." Here are excerpts:

A new Illinois law is set to take effect this summer that will specifically address the legal culpability of women who commit criminal acts during episodes of severe postpartum mental illness.  This is the first law of its kind in the U.S., and as perinatal and forensic psychiatrists, we applaud this legislation and urge other states to follow.

This new law takes the unprecedented step of specifically highlighting postpartum mental illness as a potential mitigating factor for judges to consider in determining an appropriate punishment for a crime.

Once enacted, the state law will allow women who were convicted of a felony, but who did not have evidence of postpartum mental illness presented at their trial or sentencing, to apply for post-conviction sentence reduction.  Practically, this means that women in prison for crimes that were directly related to symptoms of undiagnosed or untreated postpartum mental illness now have a legal mechanism to apply to the courts for a lesser sentence.

The law provides hope for the possibility of treatment, rather than punishment, for women who were convicted without consideration of the devastating effects of postpartum mental illness on behavior.

This legislation is in line with the longstanding Infanticide Act of 1938 in the United Kingdom, which limits the charge for killing an infant to manslaughter, not murder, if the act occurred when the woman’s “balance of her mind was disturbed by reason of her not having fully recovered from the effect of giving birth to the child or by reason of the effect of lactation consequent upon the birth of the child.”...

The Illinois legislation is unique because it creates a legal definition of postpartum mental illness. Postpartum depression was defined in the law’s text as "a mood disorder which strikes many women during and after pregnancy which usually occurs during pregnancy and up to 12 months after delivery. This depression can include anxiety disorders.”...

To be sure, we all have strong emotional reactions to the injury or killing of an infant by a mentally ill mother. The criminal acts in this law apply to forcible felonies, which involve violence or the threat of physical force or violence to any individual, not only the infant but other family members or strangers. But, coupled with the miracle of new life comes the risk for multiple maternal complications, including mental illness, anemia, nausea and vomiting, hypertension, gestational diabetes, excess weight gain, pregnancy loss, cesarean delivery and anesthesia complications.

Perinatal mood and anxiety disorders are associated with increased risks of maternal and infant mortality and morbidity and are recognized as a significant maternal safety issue. The pregnancy-related death rate in the United States has steadily increased across the past three decades — evidence of another risk pregnant women face....

This law specifically identified perinatal (occurring during pregnancy or postpartum) psychiatric disorders as mitigating factors.  We urge support for legislation that incorporates both pregnancy and childbirth and their complications as mitigating factors in crimes committed during postpartum mental disorders in all states.

February 6, 2018 in Offender Characteristics, Race, Class, and Gender | Permalink | Comments (5)

"The Fatal Flaw in John R. Lott Jr.’s Study on Illegal Immigrant Crime in Arizona"

A few weeks ago, I posted here a link to an empirical study authored by John Lott titled "Undocumented Immigrants, U.S. Citizens, and Convicted Criminals in Arizona."  Today I saw this posting at Cato responding to Lott's study authored by Alex Nowrasteh under the title that is the title of this post.  The response claims that Lott misinterpreted the most important variable in his study, and it starts and ends this way (with links from the original):

Economist John R. Lott Jr. of the Crime Prevention Research Center released a working paper in which he purports to find that illegal immigrants in Arizona from 1985 through 2017 have a far higher prison admissions rate than U.S. citizens.  Media from Fox News to the Washington Times and the Arizona Republic have reported on Lott’s claims while Attorney General Jeff Sessions and Representative Paul Gosar (R-AZ) have echoed them from their positions of authority.  However, Lott made a small but fatal error that undermines his finding. 

Lott wrote his paper based on a dataset he obtained from the Arizona Department of Corrections (ADC) that lists all admitted prisoners in the state of Arizona from 1985 to 2017. According to Lott, the data allowed him to identify “whether they [the prisoners] are illegal or legal residents.”  This is where Lott made his small error: The dataset does not allow him or anybody else to identify illegal immigrants.

The variable that Lott focused on is “CITIZEN.”  That variable is broken down into seven categories. Lott erroneously assumed that the third category, called “non-US citizen and deportable,” only counted illegal immigrants.  That is not true, non-US citizen and deportable immigrants are not all illegal immigrants.  A significant proportion of non-U.S. citizens who are deported every year are legal immigrants who violate the terms of their visas in one way or the other, frequently by committing crimes.  According to the American Immigration Council, about 10 percent of people deported annually are Lawful Permanent Residents or green card holders — and that doesn’t include the non-immigrants on other visas who were lawfully present in the United States and then deported. I will write more about this below. 

Lott mistakenly chose a variable that combines an unknown number of legal immigrants with an unknown number of illegal immigrants.  Lott correctly observed that “[l]umping together documented and undocumented immigrants (and often naturalized citizens) may mean combining very different groups of people.”  Unfortunately, the variable he chose also lumped together legal immigrants and illegal immigrants.

The criminologist who sent me the ADC data also sent along a more detailed dataset for the stock of prisoners in Arizona for June 2017.  This newer dataset’s CITIZEN variable is just as unusable as the same variable in the 1985 to 2017 dataset but it has an additional variable that allowed us to somewhat better identify incarcerated illegal immigrants: whether the prisoner has an Immigration and Customs Enforcement (ICE) detainer....

The equivalent of the “non-U.S. citizens and deportable” variable in the June 2017 ADC database is called “criminal aliens,” another category that is not synonymous with illegal immigrants.  In Arizona’s ADC regulations, the government first determines whether a prisoner is a criminal alien and then investigates whether he or she is an illegal immigrant. In June 2017, only 38.3 percent of criminal aliens had ICE detainers on them and, thus, were more likely to be illegal immigrants.  As a back-of-the-envelope estimation, I assumed that 38.3 percent of “non-U.S citizens and deportable” are actually illegal immigrants in the ADC’s larger 1985-2017 dataset.  This back-of-the-envelope calculation turns Lott’s finding on its head.  Whereas he found that 11.1 percent of the admissions to Arizona prisons in 2014 were illegal immigrants, the real percentage is a maximum of 4.3 percent, below the 4.9 percent estimated illegal immigrant share of the state’s population. 

Lott’s controversial empirical findings regarding the high admission rate of illegal immigrants to Arizona prisons, a finding that contradicts virtually the entire body of research on the topic, stems from his simple misreading of a variable in the 1985-2017 ADC dataset.  Lott thought that “non-U.S. citizens and deportable” describes only illegal immigrants but it does not.  There is no way to identify illegal immigrants with precision in the 1985-2017 ADC dataset and their population can only be estimated through the residual statistical methods that Lott derides as “primitive.”  Using another variable in the June 2017 ADC dataset that Lott did not analyze reveals that, at worst, illegal immigrants in Arizona likely have an incarceration rate lower than their percentage of that state’s population. 

Prior related post:

February 6, 2018 in National and State Crime Data, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (3)

Monday, February 05, 2018

Georgia Supreme Court refuses to extend Miller Eighth Amendment limits on juve sentencing to non-LWOP sentences

A helpful colleague made sure I saw the new short ruling on juvenile sentencing limits handed down by the Supreme Court of Georgia today in Veal v. Georgia, No. S17A1758 (Ga. Feb. 5, 2018) (available here). Here is the meat of the opinion in Veal:

Citing OCGA § 42-9-39(c), appellant notes that the aggregate sentence imposed on him mandates 60 years of prison service before the first opportunity for paroled release.  Given his life expectancy, appellant states that even this new sentence is unconstitutional because it amounts to a de facto LWOP sentence, again without any determination of the factors set forth in Veal I which a court is required to find before imposing an LWOP sentence on a convicted defendant who was younger than 18 at the time of the crime. Appellant asserts that reading the Miller and Montgomery Supreme Court opinions as applying only to actual LWOP sentences elevates form over substance and permits the label of the sentence to supersede the actual result of the imposed sentence.

Appellant acknowledges that he is asking this Court to expand the holdings of the Miller and Montgomery Supreme Court opinions.  As noted by this Court in Veal I, those cases read together create a substantive rule that before an LWOP sentence may be imposed on one who was a juvenile at the time the crime was committed, the sentencing court must conduct a hearing to determine if that person is one of the exceptionally rare juveniles for whom such a sentence is appropriate because of “a specific determination that he is irreparably corrupt.”  Veal I, supra, 298 Ga. at 702.  But neither Miller nor Montgomery addressed the imposition of aggregate life-with-parole sentences for multiple convictions or whether sentences other than LWOP require a specific determination that the sentence is appropriate given the offender’s youth and its attendant characteristics, and the nature of the crimes.  See Miller, supra, at 465.  Appellant points to courts in other jurisdictions that have found Miller-like protections are required for a prison sentence imposed upon a juvenile that exceeds the individual’s life expectancy.  See, e.g., State v. Zuber, 152 A3d 197 (N.J. 2017); State v. Null, 836 NW2d 41 (Iowa 2013) (holding under the Iowa constitution that “an offender sentenced to a lengthy term-ofyears sentence should not be worse off than an offender sentenced to life in prison without parole who has the benefit of an individualized hearing under Miller”).  On the other hand, other state and federal courts have determined that Miller and Montgomery do not apply to cases that do not involve LWOP sentences but nevertheless involve sentences that, according to the convicted juvenile, are the functional equivalent to a life sentence without the opportunity for parole.  See, e.g., Starks v. Easterling, 659 Fed. Appx. 277 (6th Cir. 2016); Bell v. Nogan, 2016 WL 4620369 (D.N.J. Sept. 6, 2016); People v. Sanchez, 2013 WL 3209690 (Cal. Ct. App. June 25, 2013).

Because the Supreme Court has not expanded its mandate that the Eighth Amendment’s prohibition of cruel and unusual punishment as it applies to juvenile offenders requires a sentencer to consider a juvenile’s youth and its attendant characteristics before imposing a sentence other than LWOP, this Court will not do so.  Although appellant mentions “the analogous provision of the Georgia Constitution” in his enumerations of error, he offers no argument or citation of authority whatsoever regarding the application of the Georgia Constitution to the case.  We therefore deem any state constitutional claim abandoned.

February 5, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Scope of Imprisonment, Sentences Reconsidered | Permalink | Comments (3)

Examining whether juve life with parole in Maryland really means a real chance at parole

This lengthy new Washington Post article, headlined "The life sentence he got as a teen came with a chance at parole. But is it a real chance?," provides a deep dive into what parole eligibility means these days in one state and highlights why there is sure to be debates and litigation over the Supreme Court's rulings in Graham and Miller for many years to come.  Here are excerpts:

Walter Irving Maddox was on the phone making New Year’s Eve plans when he heard a knock on the door of his secluded cottage steps from the creek where he’d spent decades hauling crabs.  He laid the phone on a bed.  From the other end of the line, his girlfriend heard voices.  Then, sharp banging and doors slamming, followed by groans and gurgling.

The metallic sound, she would soon learn, was neighborhood teenager, James E. Bowie, pummeling 68-year-old Maddox with an aluminum baseball bat.  Bowie was a high school dropout, fueled by drugs and anger.  He never intended to hurt Maddox so severely, just to subdue him while a friend grabbed the waterman’s cash, he said recently.

Maddox, now 90, was never the same. “It just destroyed his memory,” said Maddox’s son, who shares his father’s name. “They took his life away from him, but they didn’t finish the job.”

Bowie was 17. He was sentenced in 1997 to life in prison with the possibility of parole — a possibility his lawyers say exists on paper, but carries no real chance for release.

Maryland is one of three states, with California and Oklahoma, that requires the governor’s signature to parole inmates sentenced to life. In the last two decades, no Maryland governor has signed off on a parole board recommendation to release a lifer like Bowie who committed his crime before he turned 18.  Bowie has spent his 20s and 30s in prison, more time locked up than he was on the outside.

“My life experience stopped at 17,” Bowie, now 40, said in interviews from state prison in Hagerstown, Md., for attempted murder and robbery. “I needed to be punished for what I did and needed to have time to be corrected, but the rest of my life is overkill.  I’m not the same person I was.”

His case is one of four being considered this week by the state’s highest court in Annapolis in a challenge to the legality of the Maryland parole system.  Prison reform advocates say the system is unconstitutional because while the punishment in the cases involving juvenile offenders technically includes parole, the state hasn’t paroled any inmate in that position in more than 20 years.

The office of Attorney General Brian Frosh says Bowie’s sentence is legal and his challenge is premature.  He hasn’t been recommended for parole or formally denied release by any governor. “If they are unhappy with the way parole is implemented, their issue is with the executive branch,” said Frosh’s spokeswoman Raquel Coombs.

The question for the Maryland Court of Appeals is whether a young person can be sentenced to life without what advocates say is any realistic chance of parole. The outcome of the cases could affect an estimated 300 lifers locked up for crimes they committed as juveniles....

“The Supreme Court has been so clear and so forceful about how the landscape has changed,” said Sonia Kumar of the American Civil Liberties Union, an attorney challenging Maryland’s parole system in a separate federal case. “There really isn’t any excuse for why Maryland is still operating the way it is and denying people who were sent to prison as kids any hope of relief no matter how thoroughly they’ve turned their lives around,” she said.

The Maryland attorney general’s office says the fact that parole on life sentences is infrequent and has declined “is not proof of a constitutional violation” but rather “proof, perhaps, of changes in the way that governors and parole commissioners exercise their discretion, but nothing more.”

Inmates with life sentences with the possibility of parole must serve at least 15 years before being considered for release. Parole commissioners, appointed by the governor, review records, notify victims and interview the prisoner before making a recommendation to the governor, who must act within 180 days.  In Bowie’s case, the parole board recommended him for a rehearing after his first review in 2007.  Changes to the system, the attorney general’s office says, must come from the legislature or the governor. But legislation to take the governor — and politics — out of the parole process, proposed again this session, has been stymied for years in part because of opposition from elected state prosecutors.

Between 1969 and 1994, three Maryland governors paroled 181 lifers. As governor, Parris N. Glendening in 1995 said resolutely he would sign no paroles in life-term cases, standing in front of a state prison to announce: “A life sentence means life.” In the following two decades, court records show none were paroled. Governors rejected recommendations on 24 lifers — juveniles and adults — without explanation.

More recently, Gov. Larry Hogan (R) has approved parole for two adult inmates sentenced to life.  Like each governor since Glendening, he also has used separate clemency powers to reduce prison sentences and bring early release for a small number of lifers.  But reform advocates say acts based on prerogative do not fix an unconstitutional life sentence or the parole system.

“Not only is the governor not bound by any standards or forced to consider any particular factors, but the governor is not required in any way to explain his decision,” said James Johnston, director of the Youth Resentencing Project within the Maryland Office of the Public Defender, which has brought dozens of court challenges throughout the state, including Bowie’s.

The three other cases before the appeals court this week involve crimes committed by teenagers who are now serving life and in one case a term of 100 years: a 1989 home invasion in Prince George’s County that resulted in three deaths; a 1999 murder in Baltimore; and a 2004 shooting outside Randallstown High School that paralyzed a student.

February 5, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Saturday, February 03, 2018

"As Patriots, we support juvenile justice reform"

TeamLogoThe title of this post is the headline of this notable new opinion piece in the Boston Globe authored by Devin McCourty, a New England Patriot player, and New England Patriots' owner Robert Kraft and his son Jonathan Kraft. Here are excerpts:

The New England Patriots represent a six-state region and we are grateful for many things, including our region’s national leadership in improving our justice systems, especially for children and youth. The Patriots organization cares about the safety of our communities and we know the best place to start is with our youngest members.  If we get it right with our youth, they will become our future leaders, neighbors, and trusted colleagues.

In some ways, we are ahead of the game.  All six New England states recognize the importance of accountability, but children are not adults and should not be treated as such. Each state has a separate juvenile justice system that aims to provide rehabilitative, developmentally appropriate responses for kids who have made bad choices.

While we have made strides in this area, there is still plenty of room for improvement as we search for the appropriate age range for the juvenile justice system. Unfortunately, we end up sweeping in kids who are too young, and then we exclude older teens who would benefit the most.  Right now, the Massachusetts juvenile system applies to youth ages 7 through 17.  This means 7-year-olds who are in the first grade — children reading “Green Eggs and Ham” — can be arrested, prosecuted, and confined.  Yet, 18-year-olds who are still in high school are automatically charged as adults and excluded from the juvenile system, regardless of the crime.

This age range is an outdated policy that compromises public safety.  It should be obvious that very young children cannot understand the court process and lack the reasoning to participate fully in their own defense.  In fact, mere exposure to the justice system can be particularly harmful — both to them and to society.  Seven-year-olds would be better served by agencies like child welfare or mental health.

As for the upper age of the juvenile system, research shows what any parent knows — that celebrating an 18th birthday does not magically transform everyone into a mature adult.  The physical, emotional, and practical transition from childhood to adulthood is a lengthy process, stretching into the mid-20s. ...

Sadly, it is our most vulnerable youth — children of color — who bear the brunt of our misguided age policies.  Black and Hispanic youth become system-involved at shockingly disproportionate rates that cannot be explained by differences in behavior.  In Massachusetts, children of color constitute approximately one-third of the state’s youth population, but two-thirds of those committed to the state youth correctional agency.  Although there are no Massachusetts data publicly available for 18-year-olds, we know that the national rate of incarceration in 2012 was more than nine times greater for black males ages 18 to 19 than for white males.

This issue of the age of juvenile jurisdiction takes on particular importance as New England struggles with a sweeping drug epidemic.  A recent report by the Columbia University Justice Lab revealed that substance-related offenses in Massachusetts are the leading cause of arrests for 18-year-olds, that two-thirds of people in treatment for opioid addiction started using opioids before age 25, and that opioids accounted for more than a quarter of all fatalities in the 18 to 24 age group.  To avoid such tragedies, we can begin by including late teens in the much smaller, individualized treatment-oriented juvenile justice system. That will give us a better chance of preventing and addressing substance use disorders for the youth who are the most vulnerable to addiction and its consequences.

We strongly support the proposal being considered by the Massachusetts Legislature that would first raise the lower age of juvenile jurisdiction from 7 to 12, and second, raise the upper age from 18 to 19.  Both moves would constitute more appropriate and effective responses to the needs of our youth. We also support Vermont and Connecticut in their ongoing efforts to consider and adopt similar proposals.

February 3, 2018 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (5)

Thursday, February 01, 2018

"Mass Incarceration: New Jim Crow, Class War, or Both?"

The title of this post is the title of this interesting new empirical paper authored by Nathaniel Lewis. Here is the interesting paper's abstract and conclusion:

Using data from the National Longitudinal Study of Adolescent to Adult Health, I analyze racial and class disparities in incarceration.  My analysis shows that class status has a large and statistically significant effect on (1) whether or not men aged 24–32 years have ever been to jail or prison; (2) whether or not men are jailed after being arrested; (3) whether or not men have spent more than a month in jail or prison; and (4) whether or not men have spent more than a year in jail or prison.  After controlling for class, I do not find race to be a statistically significant factor for the first three outcome categories, but I do find that race has a significant impact on whether or not a man has spent more than a year in prison or jail....

This study takes a careful account of class and how it relates to race and incarceration rates.  Previous studies interested in racial disparities across various outcomes all too often fail to control for class at all, or else pick a single variable as a proxy for class, which comes with a set of confounders.  The constructed class variables used here attempt to balance out the confounders lurking in any one proxy variable.  The result, robust across different methods of composite construction, is that class appears to be a larger factor than usually reported when studying racial disparities. It may indeed come as a surprise to many that race is not a statistically significant factor for many incarceration outcomes, once class is adequately controlled for.

To an extent, this study provides weight to the assertion that mass incarceration is primarily about the systematic management of the lower classes, regardless of race.  It would be reasonable to conclude then that if policymakers wished to eliminate the phenomenon of mass incarceration, and the negative effects it has on black Americans, they should look to reducing class disparities in universal ways.  For example, single-payer health care, a federal job guarantee, a universal basic income, a livable minimum wage, universal childcare, universal education.  These are all policies that would likely reduce class disparities and provide the material means to lift a large swath of people out of the scope of the criminal justice system.

On the other hand, this study demonstrates a large racial gap, even controlling for class, when it comes to the most devastating outcome: long appearances in jail and prison. The current popular effort to draw attention to racial disparities as racial disparities certainly seems to still hold validity in light of this study. Nevertheless, while a focus on reducing class disparities in a material fashion clearly will not be enough to completely solve the problem of racial bias, it seems evident that this approach would do a lot of good for poor blacks and poor whites alike with respect to the cruel machinery of mass incarceration.

February 1, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)

Tuesday, January 30, 2018

"Expansion of the Federal Safety Valve for Mandatory Minimum Sentences"

Download (7)The title of this post is the title of this relative short "Issue Brief" from FreedomWorks authored by Jason Pye and Sarah Anderson. The five-page document provides a basic overview of the federal statutory safety valve in 18 U.S.C. § 3553(f) which, as the brief explains, provides "an exception to mandatory minimum sentences for nonviolent drug offenders with little to no criminal history." Here are excerpts:

The Sentencing Reform Act, Sentencing Reform and Corrections Act, and the Smarter Sentencing Act proposed an expansion of eligibility for the safety valve by increasing the number of criminal history points an offender may have on his or her record.  The safety valve does not prevent an eligible offender from serving time in prison.  It does, however, reduce overcrowding and allows the limited number of prison beds to be used for violent criminals.  The safety valve also restores a partial measure of judicial discretion, allowing a judge to sentence below a statutory mandatory minimum, should the judge believe the sentence is too harsh for the offense committed....

Since the creation of the federal safety valve, more than 80,000 federal offenders have received fairer, more just sentences.  These lesser sentences for nonviolent, low-level drug offenders allow limited prison resources to be used on violent, repeat offenders who are true threats to public safety....

The proposed changes to the federal code to expand the safety valve to offenders who have up to three or four criminal history points, with exceptions for some of those points coming from more serious or violent offenses, is a modest, common sense change.  Nothing in the safety valve prevents judges from sentencing prisoners at or above the mandatory minimum even if they are eligible for the safety valve, but simply allows judicial discretion to ensure that prison resources are being used where they can best protect public safety, and not wasted on nonviolent, low-level drug offenders.

In the 115th Congress, Senate Judiciary Committee Chairman Chuck Grassley (R-Iowa) has reintroduced the Sentencing Reform and Correction Act and Sen. Mike Lee (R-Utah) has reintroduced the Smarter Sentencing Act, both of which include an expansion of the federal safety valve.  Although the Sentencing Reform Act has not yet been reintroduced by House Judiciary Committee Chairman Bob Goodlatte (R-Va.), the Prison Reform and Redemption Act, sponsored by Rep. Doug Collins (R-Ga.) would serve as a likely vehicle for sentencing reforms similar to those found in the Sentencing Reform Act.

Should the House Judiciary Committee markup the Prison Reform and Redemption Act, FreedomWorks urges the committee to include an expansion of the federal safety valve that would allow judicial discretion in sentencing qualifying offenders to ensure that lengthy sentences and prison resources are spent on criminals who represent a serious threat to our communities. 

In addition to being a helpful review by a notable organization of one piece of the federal sentencing system, this document strikes me a timely and astute effort to start building the case for incorporating at least a little bit sentencing reform into the prison reform efforts that now are gaining steam in Congress. Because it appears to have the blessing of Prez Trump and maybe even Attorney General Sessions, the Prison Reform and Redemption Act right now looks like the proposed federal legislation with the greatest chance of enactment. This Issue Brief wisely highlights why it would be a wise decision to add a modest sentencing reform provision into that proposal.

January 30, 2018 in Drug Offense Sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Monday, January 29, 2018

Mapping out what Beckles left unresolved: Johnson's uncertain impact on the once-mandatory career-offender guideline

Leah Litman and Samantha Jaffe have this great new entry at the Take Care website under the heading "The Mandatory Guidelines Predicament."  It seeks to explain the still lingering issue of how the Supreme Court's 2015 Johnson vagueness ruling still impacts a certain subset of federal prisoners sentenced more than a decade earlier.  I recommend the piece in full, and here is a taste:

In Johnson v. United States, the Supreme Court held ACCA’s residual clause unconstitutionally void for vagueness.  ACCA imposes a 15-year minimum for defendants with three prior “violent felony” convictions.  ACCA’s residual clause defined “violent felony” as any felony that “involves conduct that presents a serious potential risk of physical injury to another.”  The next term, Welch v. United States announced that Johnson was a substantive rule that applied retroactively....

The Sentencing Guidelines contain a provision known as the career-offender guideline. The career-offender guideline helps calculate a defendant’s criminal history score, which, in combination with a defendant’s offense level, yields the defendant’s sentencing range. The career-offender guideline has a residual clause that is worded the same way as ACCA’s (unconstitutional) residual clause. In Beckles, the Court held that the career-offender guideline’s residual clause was not unconstitutionally vague because the advisory federal Sentencing Guidelines are not subject to vagueness challenges.

The Sentencing Guidelines, however, weren’t always advisory.... The pre-Booker Guidelines thus functioned a lot like statutes that impose mandatory sentences.  Nevertheless, there are still differences between the pre-Booker Guidelines and statutes.  Even when the Guidelines were mandatory, the Guidelines explicitly allowed courts to reduce a defendant’s recommended sentencing range if the court determined the defendant’s criminal history “substantially over-represent[ed] the seriousness of the defendant’s criminal history or the likelihood that the defendant will commit other crimes.”  In other words, even under “mandatory” Guidelines, courts could depart from the sentencing range. In contrast, courts couldn’t depart from a mandatory minimum under ACCA.  The Guidelines also include seven factors that a sentencing court must consider, which builds in flexibility. These factors include the nature of the offense and history of the defendant, the types of sentences available, and how the sentence serves the values of deterrence, incapacitation, retribution, and rehabilitation. That said, in spite of those differences, the pre-Booker mandatory Guidelines functioned a lot like statutory minimums.

Despite the similarities between mandatory Guidelines and statutes fixing sentences, the courts of appeals have not been particularly receptive to challenges to the mandatory Guidelines....  Let’s imagine that the Supreme Court wants to say, at some point, that the mandatory Guidelines’ residual clause is unconstitutionally vague.  It’s not clear how many opportunities the Court will have to do so, assuming it’s even interested.  AEDPA sharply limits the Supreme Court’s ability to review court of appeals’ denials of authorization to file second or successive resentencing motions.  AEDPA does not permit petitioners to file petitions for certiorari from decisions denying authorization to file a second or successive authorization.  The only path to review in the Supreme Court are so-called “original writs,” which are rarely granted and, to date, have remained only a theoretical possibility for reviewing second or successive resentencing motions.

That’s a problem because it is likely that almost all cases involving the mandatory Guidelines will be second or successive resentencing motions.  The Guidelines have been advisory since the Supreme Court’s 2005 decision in Booker, so it’s not likely that many prisoners sentenced *before 2005* have yet to file a single section 2255 motion.

The petitioner in Raybon is one of the rare exceptions, although there is also another, similar case in the Fourth Circuit.  If the Court wants to do something about prisoners sentenced under the mandatory Guidelines, it may want to seriously consider granting certiorari in Raybon even though there’s a vehicle problem.... And acting sooner rather than later is important, given that the essence of these claims is that the prisoners are serving more time in prison than they should be.

January 29, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (1)

Saturday, 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)

Thursday, 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)

Wednesday, January 17, 2018

"Breaking Down Barriers: Experiments into Policies That Might Incentivize Employers to Hire Ex-Offenders"

The title of this post is the title of this notable new Rand Corporation research report. Here is its summary and some of its key findings and recommendations:

The rate of criminal punishment in the United States has had far-reaching economic consequences, in large part because people with criminal records are marginalized within the labor market. Given these negative economic implications, federal, state and local officials have developed a host of policies to encourage employers to hire ex-offenders, with varying degrees of success.  To inform policies and programs aimed at improving employment rates for ex-offenders, we examined employer preferences regarding policy options targeted to incentivize hiring individuals with one nonviolent felony conviction.

In our experiments, we found employers were 69 percent more likely to consider hiring an ex-offender if a hiring agency also provides a guaranteed replacement worker in the event the ex-offender was deemed unsuitable and 53 percent more likely to hire an ex-offender who can provide a certificate of validated positive previous work performance history.  Having consistent transportation provided by a hiring agency increased the likelihood of being considered for hire by 33 percent. 

Employers also were found to be 30 percent more likely to consider an ex-offender for hire if the government increases the tax credit from 25 percent of the worker’s wages (up to $2,500) to 40 percent (up to $5,000) — double the current maximum amount allowed by the Work Opportunity Tax Credit — and 24 percent more likely to hire an ex-offender if the government completed all tax-related paperwork.

Key Findings

Worker Replacement and Fee Discounts Increase Hiring Prospects for Ex-Offenders...

Tax Credits Have a Similarly Positive Effect...

Employer Access to Previous Performance Could Factor into Hiring...

Recommendations

  • Staffing agencies and reentry or reintegration programs could increase the likelihood of employment for people with a criminal record if they guarantee prospective employers a replacement employee.
  • State policymakers should consider expanding post-conviction certification programs. Across both the tax credit and staffing agency discount experiments, employers demonstrate a clear preference for wanting to know whether an ex-offender job candidate has a consistent work history and verifiable positive employment references versus simply knowing whether the person follows company codes of conduct.
  • Tax agencies should consider reducing the paperwork that companies have to fill out for credits. Government agencies could also consider providing help to prepare and submit the forms.
  • Ensuring reliable transportation to and from a job site for candidates with a criminal record increases the likelihood an employer will support hiring such individuals. As with reducing paperwork, the impact of this policy is more limited than many of our other tested policy features.

January 17, 2018 in Collateral consequences, Offender Characteristics, Reentry and community supervision, Who Sentences? | Permalink | Comments (6)

Friday, January 12, 2018

"Mental Health Courts and Sentencing Disparities"

The title of this post is the title of this notable new empirical paper now available via SSRN authored by E. Lea Johnston and Conor Flynn.  Here is the abstract:

Despite the proliferation of mental health courts across the United States, virtually no attention has been paid to the criminal justice effects these courts carry for participants.  This article provides the first empirical analysis of differential sentencing practices in mental health and traditional criminal courts.  Using a case study approach, the article compares how Pennsylvania’s Erie County Mental Health Court and county criminal courts sentenced individuals who committed the same offenses and held the same average criminal history score.  Information on the mental health court — including eligibility criteria, plea bargaining and sentencing procedure, sentencing policies, program length, graduation rates, likelihood of early discharge, and consequences of unsuccessful termination — derive from interviews with key mental health court professionals, five years of collected sentencing and dispositional data, and court materials.  The Pennsylvania Commission on Sentencing provided the county-level data, which were disaggregated by offense and criminal history score. The article analyzes sentencing for twelve offenses spanning four offense grades.

The findings are striking.  First, analysis reveals that anticipated mental health court sentences typically exceed — by years — the supervisory periods that offenders would otherwise receive in a county criminal court.  Second, mental health court participants with multiple convictions were significantly more likely to receive consecutive, as opposed to concurrent, sentences than those sentenced by traditional courts.  Third, the analysis suggests the mental health court usually does not divert individuals from jail or prison sentences — a primary justification for these courts — but instead merely extends state control over individuals with serious mental illnesses.  Fourth, key mental health court actors appear unaware of likely sentencing disparities or the high rate of participant failures.  Thus, offenders choosing between mental health and traditional courts may go uninformed about these fundamental differences.  The article concludes with suggestions for future research.

January 12, 2018 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (2)

Wednesday, January 10, 2018

BJS releases "Prisoners in 2016" reporting another drop in state and federal prison populations in 2016

As reported in this press release, the "number of prisoners in state and federal correctional facilities fell by 1 percent from year-end 2015 to 2016, the Bureau of Justice Statistics announced today. This was the third consecutive year that the U.S. prison population declined." here is more from the release:

State and federal prisons held an estimated 1,505,400 prisoners in 2016, 21,200 fewer than in 2015. The population of the Federal Bureau of Prisons (BOP) accounted for more than a third (34 percent) of the total change in the prison population, dropping by 7,300 prisoners, from 196,500 to 189,200 prisoners. Although the overall prison population decreased, the number of prisoners held in private facilities increased 2 percent in 2016

State and federal prisons admitted 2,300 fewer prisoners in 2016 than in 2015. The BOP accounted for the majority (96 percent) of the decline, down 2,200 admissions.

More than half (54 percent) of state prisoners were serving sentences for violent offenses at year-end 2015, the most recent year for which data were available. Nearly half (47 percent) of federal prisoners had been sentenced for drug offenses as of Sept. 30, 2016, the most recent date for which federal offense data were available. More than 99 percent of those drug sentences were for trafficking.

In 2016, the rate at which people were sentenced to more than one year in state or federal prison (imprisonment rate) was the lowest since 1997. There were 450 prisoners per 100,000 U.S. residents held in state and federal prisons in 2016, compared to 444 prisoners per 100,000 in 1997.

The imprisonment rate decreased for non-Hispanic adult black, non-Hispanic adult white and adult Hispanic prisoners from 2015 to 2016. The rate of imprisonment decreased 4 percent for black adults (from 1,670 to 1,608 per 100,000), 2 percent for white adults (from 281 to 274 per 100,000) and 1 percent for adult Hispanic prisoners (from 862 to 856 per 100,000).

During the decade between 2006 and 2016, the rate of imprisonment decreased 29 percent for black adults, 15 percent for white adults and 20 percent for Hispanic adults.

The full 36-page BJS report, excitingly titled Prisoners in 2016 and full of data of all sorts, is available at this link.

January 10, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Tuesday, January 09, 2018

Taking a close look at the state of women's incarceration in the states

Women_overtime_select_statesThe very fine folks at the Prison Policy Initiative have a very fine new report on incarceration rates and populations for women in the United States.  The report is titled "The Gender Divide: Tracking women’s state prison growth," and the full report is a must read for anyone interested in prison population data and/or the importance of analyzing modern criminal justice systems with gendered sophistication. Here are excerpts from the start and end of the report: 

The story of women’s prison growth has been obscured by overly broad discussions of the “total” prison population for too long. This report sheds more light on women in the era of mass incarceration by tracking prison population trends since 1978 for all 50 states. The analysis identifies places where recent reforms appear to have had a disparate effect on women, and offers states recommendations to reverse mass incarceration for women alongside men.

Across the country, we find a disturbing gender disparity in recent prison population trends. While recent reforms have reduced the total number of people in state prisons since 2009, almost all of the decrease has been among men. Looking deeper into the state-specific data, we can identify the states driving the disparity.

In 35 states, women’s population numbers have fared worse than men’s, and in a few extraordinary states, women’s prison populations have even grown enough to counteract reductions in the men’s population. Too often, states undermine their commitment to criminal justice reform by ignoring women’s incarceration.

Women have become the fastest-growing segment of the incarcerated population, but despite recent interest in the alarming national trend, few people know what’s happening in their own states. Examining these state trends is critical for making the state-level policy choices that will dictate the future of mass incarceration.

Nationally, women’s incarceration trends have generally tracked with the overall growth of the incarcerated population. Just as we see in the total population, the number of women locked up for violations of state and local laws has skyrocketed since the late 1970s, while the federal prison population hasn’t changed nearly as dramatically. These trends clearly demonstrate that state and local policies have driven the mass incarceration of women.

There are a few important differences between men’s and women’s national incarceration patterns over time.  For example, jails play a particularly significant role in women’s incarceration (see sidebar, “The role of local jails”). And although women represent a small fraction of all incarcerated people, women’s prison populations have seen much higher relative growth than men’s since 1978. Nationwide, women’s state prison populations grew 834% over nearly 40 years — more than double the pace of the growth among men.

While the national trend provides helpful context, it also obscures a tremendous amount of state-to-state variation.  The change in women’s state prison incarceration rates has actually been much smaller in some places, like Maine, and far more dramatic in others, like Oklahoma and Arizona. A few states, including California, New York, and New Jersey, reversed course and began decarcerating state prisons years ago. The wide variation in state trends underscores the need to examine state-level data when making criminal justice policy decisions....

The mass incarceration of women is harmful, wasteful, and counterproductive; that much is clear.  But the nation’s understanding of women’s incarceration suffers from the relative scarcity of gender-specific data, analysis, and discourse.  As the number of women in prisons and jails continues to rise in many states — even as the number of men falls — understanding this dramatic growth becomes more urgent.  What policies fuel continued growth today?  What part does jail growth play?  Where is change needed most now, and what kinds of changes will help? This report and the state data it provides lay the groundwork for states to engage these critical questions as they take deliberate and decisive action to reverse prison growth.

January 9, 2018 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (0)

Making the case against juvenile sex offender registration requirements

Rebecca Fix has this new commentary that caught my eye under the headlined "Young Sex Offenders Shouldn’t Have to Register; It’s Ineffective and Hurts Everyone Around Them." The whole piece (and its many links) are worth checking out, and here is how it gets started:

Sex offender registration policies were initially developed for adults with sexual offenses, but have recently been extended to include youth with sexual offenses as well.  At first glance, sex offender registration and notification (hereafter referred to as SORN) may make us feel safer, produce relief knowing that these individuals are being punished.

However, many of us don’t realize that these practices don’t protect our children.  Required registration of and notification about youth with illegal sexual behavior, in particular, has resulted in serious economic and psychological burdens at multiple levels, affecting not only the youth who have to register (e.g., increase in suicidal ideation), but also their families (e.g., judgment from others, loss of job), neighbors (e.g., devaluation of home value) and communities (e.g., stress levels, potential changes in reputation).

Mental health providers and child advocates like myself and colleagues at the Moore Center for the Prevention of Child Sexual Abuse who have examined policies concerning sexual offending among youth know that SORN requirements stem from an ill-fitting classification system that has deleterious consequences.

January 9, 2018 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Reentry and community supervision, Sex Offender Sentencing | Permalink | Comments (3)

Monday, January 08, 2018

Interesting comments on reform and rehabilitation from Deputy AG Rosenstein

Deputy Attorney General Rod Rosenstein today delivered these lengthy remarks at the American Correctional Association's Winter Conference.  Folks interested in prison policies and practices, as well as the messages being delivered by the US Justice Department these days, should make time to  read the entire speech.  And sentencing fans (including students in the Sentencing class I start teaching today) may be especially interested in these interesting comments about reform and rehabilitation from the early part of the speech:

The American Correctional Association has a proud history of supporting the work of prison and jail officials.  More than 147 years ago, in 1870, corrections officials from the United States and abroad met in Cincinnati, Ohio and adopted a “Declaration of Principles” they believed should guide the field of corrections.  One of your principles is that the purpose of incarcerating criminals is “the protection of society.”

One of the most important management principles is that it is essential to articulate the big-picture goal for an organization.  That vision filters down into how other managers understand their mission, and ultimately into everything that our employees do. In law enforcement, our goal is to reduce crime.

Correctional agencies play a critical role in achieving that goal.  By providing inmates with structure, and teaching them discipline and skills during their incarceration, you increase the probability that they will become productive members of society and reduce the likelihood of recidivism.

When I read the original version of your principles, I noticed that the word “reform” appears 27 times.  The word “rehabilitate” does not appear at all.  Rehabilitation came into vogue as a sentencing goal in the 20th century.  Many people ultimately concluded that rehabilitation was not a realistic goal for prisons.

After spending almost three decades in law enforcement, I agree that we need to focus on reform of criminals, not rehabilitation.  The reason is that “re-habilitation,” by definition, is about restoring a person’s good reputation and ability to work.

There are some criminals for whom rehabilitation is a reasonable goal.  They are people who lived law-abiding lives and were productive members of society, before something went wrong and caused them to go astray.

But many of the career criminals housed in our prisons unfortunately were not properly habilitated before they offended.  The criminals who were not productive members of society need reform, not rehabilitation.

Admitting that most of our inmates need reform is not a way of disparaging the criminals.  It is instead a frank way to acknowledge that our task is more than just helping them overcome a few mistakes.  Many inmates do not just lack self-restraint.  They lack job skills.  They lack education.  They lack family structure.  They lack discipline.

While they are under governmental supervision, you have the chance to help them reform by imposing discipline and offering opportunities for improvement.  The most important thing for many inmates to learn is the discipline of following a schedule: wake up at a particular time, report to work when required, eat meals at the designated hours, and go to bed early enough to start fresh the next morning.

Some of the programs you offer also may be useful to reform inmates and set them on the right path. Programs such as institutional work assignments, prison industries, substance abuse treatment, and educational or vocational training.  Your work makes our communities safer.

The principles from 1870 also codify the professionalism that defines corrections officials.  They explain that “[s]pecial training, as well as high qualities of head and heart, [are] required to make a good prison or reformatory officer.”

January 8, 2018 in Criminal justice in the Trump Administration, Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Reentry and community supervision, Who Sentences? | Permalink | Comments (1)