Saturday, October 20, 2018
Paul Manafort seemingly poised to get "senior discount" at upcoming sentencing
This new NBC News piece, headlined "Paul Manafort's health and age could help shorten his sentence," reports on the notable recent court appearance of a former presidential campaign manager and highlights how it could impact his upcoming sentencing. The piece is authored by Danny Cevallos, an MSNBC legal analyst, and here are excerpts:
Former Trump campaign manager Paul Manafort appeared in a Virginia federal court Friday in a wheelchair, missing his right shoe, and appearing visibly grayer. His legal team advised Judge T.S. Ellis that Manafort was dealing with “significant” health issues related to his confinement, and asked the court to expedite his sentencing so that he could be transferred to a facility better equipped to take care of him.
There’s no question that incarceration has negative health effects. It’s also likely part of a wise strategy for Manafort’s defense team to make these health issues known to the judge well in advance of the sentencing hearing. Manafort’s age and infirmity can bolster a defense argument to the judge for a significant reduction in his sentence.
Federal judges are permitted to consider a defendant’s advanced age and health issues in order to impose fair punishment and provide essential medical care. Following an amendment to the Federal Sentencing Guidelines in 2010, the defendant’s age and physical condition, including his physique, may be relevant in reducing a sentence. However, this is only if the condition is unusual and distinguishable from other cases. An extraordinary physical impairment or a seriously infirm defendant can justify granting home detention as a less costly option than imprisonment. The guidelines permit the court to consider alternative forms of incarceration for such an offender if those alternatives are “equally efficient” as prison.
It’s not clear what health condition confined Manafort to a wheelchair with only one shoe on Friday. The court may consider a defendant’s need for medical care when fashioning a sentence. Courts have considered a variety of conditions during sentencing that can affect the feet, including diabetes, and gout. Still, Manafort’s defense team should be prepared to show that these ailments are extraordinary, and they cannot be treated adequately by the Bureau of Prisons.
The Department of Justice has recognized that the aging process accelerates for prisoners. Elderly prisoners such as Manafort are more vulnerable to predators. They require special physical accommodations in a place that is not designed for special accommodation. According to the DOJ, the annual cost of incarcerating elderly prisoners has risen to an average of $60,000 to $70,000 for each elderly inmate compared with about $27,000 for others in the general population....
Elderly defendants are substantially less likely than younger offenders to commit new crimes after they are released. The U.S. Sentencing Commission reported that over an eight-year period, only 13.4 percent of offenders age 65 or older were rearrested compared to 67.6 percent of offenders younger than age 21 when they were released. Of course, expect the prosecutors to point out that after he was originally charged and out on release, Manafort committed new obstruction crimes by trying to influence witnesses. The government will surely counter that Manafort is one of those rare older offenders who is likely to commit new crimes — because he already did.
I am pleased this piece highlights the (too-often-ignored) 2010 revisions to the USSG policy statements concerning age and physical impairments as a possible relevant basis for a departure from the applicable guidelines. But, as federal practitioners know, the guideline policy statements about departures are often ignored because judges have broad general authority to vary based on statutory 3553(a) factors regardless of what the guidelines say. And, not to be forgotten, as reported in this prior post, Manafort's plea agreement caps his sentencing exposure at 10 years, but includes a calculation of his estimated "Sentencing Guidelines range [at] 210 months to 262 months' imprisonment."
Some prior related posts:
- Appreciating ugly sentencing realities facing Paul Manafort and Rick Gates after federal indictment
- Paul Manafort has bail revoked ... and has not (yet) gotten rescued from jail by Prez Trump's clemency pen
- Paul Manafort found guilty of 8 of 18 counts ... and now faces real possibility of spending many years in federal prison
- Reported sentencing details in Paul Manafort's plea deal to wrap up his various federal prosecutions
- Paul Manafort's DC plea agreement has a calculated guideline range of 17.5 to 22 years (though he can only get 10)
Friday, October 19, 2018
Rastafarian musician gets eight-year sentence after being found with 2.89 pounds of marijuana in car
I sometimes see reporters and others suggest that personal marijuana possession and use has already become essentially de facto legal throughout the country. This story of a sentencing in Mississippi this week, headlined "Jamaican-born musician sentenced to 8 years in prison for marijuana he legally obtained," puts the lie to this suggestion. Here are the details:
A Jamaican-born musician convicted of drug trafficking in Madison County for marijuana he said he obtained legally in Oregon for his personal use received an eight-year prison sentence without parole Monday. Madison County Circuit Judge William Chapman said Patrick Beadle, 46, of Oregon, faced a maximum 40 years in prison after a jury convicted him in July under the state's drug trafficking law.
Beadle, who performs under the name BlackFire, was charged with drug trafficking, although he said the marijuana he had with him was for his personal use and was obtained legally in Oregon where medical marijuana was legalized in 1998. Oregon voters approved recreational use of marijuana in 2014. Prosecutors admitted there was no evidence to prove Beadle was trafficking in drugs other than the amount of marijuana, 2.89 pounds, and that it was concealed in his vehicle.
Chapman departed from giving Beadle the 10 to 40 years under the drug trafficking law, but he wouldn't reduce it to simple possession because he said the jury convicted Beadle under the drug trafficking law. Chapman said Beadle would have to serve the eight year sentence day-for-day since the law doesn't allow for parole or probation....
Patrick Beadle said he has a medical marijuana card from Oregon to treat chronic pain in both knees where cartilage has worn down from his years of playing college basketball. Marijuana use is also common among Rastafarians.
Beadle said he was traveling March 8, 2017, southbound on I-55 after entering Madison County and at about 10 a.m., he was pulled over on I-55 near Canton by a Madison County deputy for the alleged traffic violation of crossing over the fog line, the painted line on the side of a roadway. He disputes the deputy's assertion that he crossed over the fog line. He said his dreadlocks and out-of-state auto tag made him a target for racial profiling....
In the Beadle case, then-Deputy Joseph Mangino found no large sums of money, drug paraphernalia or weight measuring scale to substantiate the trafficking charge. "This is not the typical defendant you see. "He is not a drug dealer," said Randy Harris, who was Beadle's trial attorney.
This lengthy (pre-sentencing) article from another local paper provides a few more details and some context about this disconcerting case:
Beadle was southbound on I-55 and had crossed from Yazoo into Madison County. A few seconds later, a Madison County sheriff’s deputy pulled him over. A search of Beadle’s car revealed 2.8 pounds of marijuana.
Following a trial in July, a jury took 25 minutes to find him guilty of charges that could land him in prison for up to 40 years without parole. Beadle, who is African American, and his allies say the fact that he was pulled over is a clear case of racial profiling while law enforcement officials maintain that a traffic violation led to the stop....
In Madison County, drug dispositions between 2013 and 2017 -- that is, drug charges settled in those years -- neared 1,000, based on data provided by the Administrative Office of Courts. Of those total charges, only two people were found guilty by a jury as Beadle was, Mississippi Today found. Out of all the drug dispositions, about three in five were faced by African Americans.
That discrepancy goes up when looking only at guilty pleas. The majority of defendants pled guilty to over 600 charges in Madison County during that timeframe. About 66 percent of those individuals were black -- though black people make up only 38 percent of the county’s population -- while 32 percent were white.
October 19, 2018 in Drug Offense Sentencing, Examples of "over-punishment", Offender Characteristics, Offense Characteristics, Pot Prohibition Issues, Race, Class, and Gender | Permalink | Comments (4)
Thursday, October 18, 2018
Washington Supreme Court declares all juve LWOP cruel punishment and unconstitutional under state constitution
Last week, as noted here, the Washington Supreme Court struck down the state's death penalty based on its arbitrary administration in Washington v. Gregory. Today the same court brings us another big state constitutional opinion in Washington v. Bassett, No. 94556-0 (Wash. Oct. 18, 2018) (available here). The death penalty abolition, interestingly, was unanimous, while this latest opinion divided 5-4. Here is how the majority opinion starts:
At issue here is the constitutionality of sentencing juvenile offenders to life in prison without the possibility of parole or early release. The State appeals a Court of Appeals, Division Two decision holding that the provision of our state's Miller-fix statute that allows 16- and 17-year-olds to be sentenced to life without parole violates the Washington Constitution's ban on cruel punishment. Brian Bassett, recently resentenced to life without parole under the Miller-fix statute, argued at the Court of Appeals that juvenile life without parole is categorically unconstitutional. The court adopted the categorical approach, rather than our traditional Fain proportionality test, and found that sentencing juvenile offenders to life without parole or early release constituted cruel punishment. State v. Bassett, 198 Wn. App. 714, 744, 394 P.3d 430 (2017) (puhlished in part); State v. Fain, 94 Wn.2d 387, 617 P.2d 720 (1980). We affirm the Court of Appeals' decision and hold that sentencing juvenile offenders to life without parole or early release constitutes cruel punishment and therefore is unconstitutional under article I, section 14 of the Washington Constitution.
Here is how the dissent gets started:
The majority's decision to invalidate a provision of our Miller-fix statute, RCW 10.95.030(3)(a)(ii), and to categorically bar the imposition of a juvenile life without parole (LWOP) sentence purports to rest on article I, section 14 of the Washington State Constitution. However, it offers no basis in state law but is simply a reinterpretation of Miller v. Alabama, 567 U.S. 460, 132 S. Ct. 2455, 183 L. Ed. 2d 407 (2012). More precisely, the majority takes Miller's federal constitutional requirement — that a sentencing court consider youth and its attendant characteristics as mitigating factors in exercising sentencing discretion to impose LWOP — and uses it to categorically bar the exercise of such discretion under the state constitution. Not only is this contrary to the holding in Miller itself, which does not categorically bar LWOP sentences for juvenile homicide offenders, it also departs from state precedent rejecting similar constitutional challenges and upholding judicial sentencing discretion.
Remarkable sentencing where district judge decided crooked cops needed more punishment than federal prosecutors sought
This local article from Florida reports on a sentencing in a remarkable federal case under the headline "Ex-Biscayne Park officers get year in prison for roles in framing black teen in crimes." Here are the details from the start of the article:
By helping the feds make a case against a corrupt ex-Biscayne Park police chief, two convicted former officers were hoping to avoid prison time for their roles in framing a black teenager with a string of burglaries. Instead, Charlie Dayoub and Raul Fernandez were handcuffed and led by U.S. Marshals into custody on Tuesday after U.S. District Judge K. Michael Moore sentenced them to the maximum: one year in prison for the false arrests.
As family members cried in disbelief, Moore chastised federal prosecutors for agreeing to recommend eight months of home confinement for Dayoub and one year of probation for Fernandez based on their grand jury testimony and other assistance in helping target former Chief Raimundo Atesiano, who had pressured officers in the mostly white suburban town to pin property crimes on people of color. He pleaded guilty last month. “It would have been a slap on the wrist, and it would have sent entirely the wrong message — particularly to the minority community,” Moore told Assistant U.S. Attorney Harry Wallace. “To think that they can come into court and get a slap on the wrist is insulting to the men and women in law enforcement.”
Moore challenged the prosecutor about his recommendation of leniency for the two defendants, who pleaded guilty in August to depriving a 16-year-old of his civil rights after framing him for four unsolved burglaries in 2013 at the direction of the ex-chief, Atesiano. The misdemeanor conviction carried up to one year in prison, while under the plea agreement prosecutors dropped a more serious civil rights conspiracy charge with a maximum 10-year sentence.
Wallace said his decision allowed the U.S. Attorney’s Office to use testimony by Dayoub and Fernandez to compel Atesiano to plead guilty to the felony civil rights conspiracy. “We were faced with a Hobson’s choice,” Wallace told the judge. But Moore, who accused the prosecutors of “sentencing manipulation,” rejected Wallace’s argument. The judge said had the prosecutors gone to trial against the ex-chief and the two officers, it would have been a “slam dunk.”
The sentencing outcome was a shock to everyone in the courtroom, especially the defendants, who were expecting leniency because the prosecutors joined their defense attorneys in support of no prison time. The reason: The two former Biscayne Park police officers testified before a federal grand jury about how the department’s ex-chief pressured them to arrest people of color and others for crimes they did not commit in the leafy bedroom community north of Miami.
Dayoub, 38, and Fernandez, 62, testified that Atesiano’s goal was to achieve a 100 percent burglary clearance rate, even if it meant pinning unsolved break-ins on people who were innocent victims, according to newly filed court records. Atesiano, 52, and another former Biscayne Park officer, Guillermo Ravelo, 37, already pleaded guilty to conspiring to violate the civil rights of innocent victims by falsely arresting them. Ravelo faces up to 10 years at his sentencing on Thursday, while Atesiano faces similar punishment in November.
UPDATE: This new Justice Department press release discusses the underlying crimes in detail while announcing that today "former Biscayne Park Police Officer Guillermo Ravelo was sentenced to 27 months incarceration for conspiracy to deprive a person of his civil rights and deprivation of civil rights under color of law."
Monday, October 15, 2018
Federal judge decides Missouri parole practices fail to comply with requirements of Miller and Graham
As reported in this local article, headlined "Missouri violated rights of inmates convicted as juveniles who are serving life without parole, judge says," a federal judge late last week ruled in favor of inmates convicted of murder as juveniles who claimed that Missouri’s parole policies and practices violated their rights in the wake of the Supreme Court's rulings in Miller and Graham. Here are the basics:
A federal judge on Friday said that recent Missouri parole hearings violated the constitutional rights of inmates serving life without parole for offenses they committed when they were juveniles. State officials have 60 days to develop a plan for providing the inmates “a meaningful and realistic opportunity” for parole, U.S. District Judge Nanette K. Laughrey ruled.
The lawsuit was filed by four inmates who are seeking to represent all inmates who were convicted and sentenced to life without parole for an offense that occurred when they were younger than 18. Each of the four inmates was recently denied parole after a hearing, and Laughrey said nearly 85 percent of the class of affected inmates did not receive a parole date after a hearing. The majority were not granted another hearing for the maximum of five years, without an explanation “for the lengthy setback,” she wrote.
In a news release about the ruling Sunday, the Roderick & Solange MacArthur Justice Center of St. Louis, which represents the inmates along with lawyers from Husch Blackwell, said more than 90 inmates are affected.
The parole board’s decision is communicated to inmates on a two-page “barebones, boilerplate form,” with only two available reasons for denying parole: the seriousness of the original offense or that the inmate’s “inability to... remain at liberty without again violating the law,” Laughrey wrote. Even state officials admitted Missouri failed to provide adequate explanation for the decisions, the judge said, and fails to tell inmates what “steps they should to take to become better suited for parole.”
Laughrey wrote that while an adult’s “interest in parole is not constitutionally protected,” a series of U.S. Supreme Court decisions “has held that those who were children at the time of the crimes for which they were convicted may be subject to certain additional protections.”...
Laughrey ruled that the state needs to come up with “revised policies, procedures, and customs” that will “ensure that all Class members are provided a meaningful and realistic opportunity for release based on demonstrated maturity and rehabilitation,” including those who already had unsuccessful hearings.
The full 27-page ruling in Brown v. Percythe, No. 2:17-cv-04082-NKL (W.D. Mo. Oct. 12, 2018), is available at this link.
October 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 (0)
New investigation finds "women in prison are disciplined at higher rates than men"
This lengthy new NPR piece, headlined "In Prison, Discipline Comes Down Hardest On Women," reports on new media research showing women are treated particularly harshly in prisons. Here are excerpts from the piece which should be read in full:
Across the country, women in prison are disciplined at higher rates than men — often two to three times more often, and sometimes more — for smaller infractions of prison rules.
That is the finding of an investigation by NPR and the Medill School of Journalism at Northwestern University. We collected data from women's and men's prisons, visited five women's prisons around the country, and interviewed current and former prisoners along with past and present wardens and prison officials. We also spoke with academics and other experts.
In 13 of the 15 states we analyzed, women get in trouble at higher rates than men. The discrepancies are highest for more minor infractions of prison rules....
In California, according to our data analysis, women get more than twice the disciplinary tickets for what's called "disrespect." In Vermont, women are more than three times as likely as men to get in trouble for "derogatory comments" about a corrections officer or another inmate. In Rhode Island, women get more than three times the tickets for "disobedience." And in Iowa, female prisoners were nearly three times as likely as men to get in trouble for the violation of being "disruptive."
While the infractions might seem minor, punishment for them can have significant consequences, we found. In Idaho and Rhode Island, for instance, women are more likely than men to end up in solitary confinement for violations like disobedience.
Women can lose "good conduct credits" that would shorten an inmate's sentence, causing them to spend more time behind bars. In California, between January 2016 and February 2018, women had the equivalent of 1,483 years added to their sentences through good-credit revocations, and at a higher rate than for male prisoners, according to the data we collected.
Discipline for small infractions can also result in the loss of privileges like being able to buy food or supplies — including women's hygiene products — at the prison commissary. Or inmates lose their visitation and phone privileges. That can have a particular effect on women, because more than half of women in prison are the mothers of children 18 or younger.
We found a disproportionate pattern in punishment as well, with women often receiving more serious sanctions than men. In Massachusetts, according to our analysis, 60 percent of punishments for women restricted where they could go in prison, including confinement to their cells. Men received those punishments half as often....
We asked experts why women get disciplined more for minor infractions. They noted that prison rules were set up to control men, especially violent ones. But that strict system of control doesn't always work for female prisoners.
One reason, researchers have increasingly come to understand, is that women typically come to prison for different reasons than do men and respond differently to prison life. Most prison staffers, meanwhile, are not trained to understand these differences.
Women are more likely than men to come for drug and property crimes and less likely to be convicted of violent crimes. They're also less likely to be violent once they're in prison. They're also more likely than men to have significant problems with substance abuse, to have mental health problems and to be the caregiving parent of a minor child.
Thursday, October 11, 2018
Set your DVR for HBO's showing of documentary "The Sentence"
The folks at FAMM have been hosting advanced screenings of a new documentary about the impact of mandatory minimum sentencing, and in a few days HBO will make it possible for everyone to see "The Sentence." Here is how HBO describes the film:
First-time filmmaker Rudy Valdez’s The Sentence tells the story of his sister Cindy Shank, a mother of three who received a 15-year mandatory sentence for conspiracy charges related to her deceased ex-boyfriend’s crimes. The documentary offers a searing look at the consequences of mandatory minimum sentencing and received critical acclaim when it premiered at the 2018 Sundance Film Festival.
The Sentence draws on hundreds of hours of footage shot by Valdez, who initially copes with his sister’s incarceration by filming the family moments Shank misses in prison. In the midst of Shank’s sentence, Valdez discovers his voice as a filmmaker and activist.
During the last months of the Obama administration’s clemency initiative, the family starts to fight for Shank’s release. The aching question at the core of this deeply personal portrait is whether their attempts to free Shank will succeed.
This lengthy Newsweek piece provides more details and context about the movie and the issues it raises. Here is an excerpt:
The Sentence, which won the Audience Award at Sundance and airs October 15 on HBO, tells Shank’s story. Filmmaker Rudy Valdez, her younger brother — at the time a pre-K assistant teacher — began making home videos of his nieces on a spare camera, as a way to record Shank’s children growing up. Before long, he began to see it as an opportunity to tell the story of mandatory minimum sentencing through “the people left behind,” says Valdez. His sister was eager to cooperate: “Tell everyone,” she told him. “Please, somebody see us.”...
Through Shank, Valdez exposes a broken justice system, one that began with the Reagan administration’s war on drugs. Mandatory minimum sentences for nonviolent cocaine and marijuana crimes were introduced as part of the Anti-Drug Abuse Act of 1986 — an attempt by Democrats to respond to the crack cocaine epidemic following the highly politicized, fatal overdose of college basketball player Len Bias. Mandatory sentences are lengthy for drug offenses; in 2016, the average carried 7.8 years — more than double the average sentence for a drug offense without a minimum. As a result, defendants are encouraged to consider accepting a plea bargain — the option Shank rejected — to receive a lesser sentence than the minimum.
In theory, plea bargains — ruled constitutional by the Supreme Court in 1970 — offer leniency to criminals who accept responsibility for their actions, allowing the accused and the state to avoid a time-consuming and expensive trial. In reality, defendants, even if they proclaim their innocence, are often pressured to plead guilty; go to trial, they are told, and you will likely get a much longer sentence. Such bargains have now become the norm: A 2017 New York Times investigation found that 98 percent of felony convictions occurred after a plea deal. And according to annual reports published by the Administrative Office on the U.S. Courts, total jury trials for U.S. criminal cases had dropped by roughly half between 1997, when there were 3,932 cases, and 2017, when there were 1,742.
The system “allows prosecutors to hold all of the cards,” says litigator Marjorie Peerce, co-chair of the National Association of Criminal Defense Lawyers Sentencing Committee. "Even if the government doesn’t have sufficient evidence, people will still plead guilty, for fear that they’ll be convicted and then sentenced with a mandatory minimum. People should not be penalized for exercising their constitutional right to trial.”
And of those penalized, the majority are black or Latino. A 2014 study found that black offenders were 75 percent more likely to face a charge carrying a mandatory minimum sentence than a white offender who committed the same crime. In 2016, Latinos represented the largest racial group in federal prison convicted of an offense that came with such a sentence. (Shank is Latina.)
Wednesday, October 10, 2018
"Reconceptualizing Criminal Justice Reform For Offenders With Serious Mental Illness"
The title of this post is the title of this notable new paper authored by E. Lea Johnston and available via SSRN. Here is its abstract:
Roughly 14% of male inmates and 31% of female inmates suffer from one or more serious mental illnesses, such as schizophrenia, bipolar disorder, and major depressive disorder. Policymakers and the public widely ascribe the overrepresentation of offenders with serious mental illness in the justice system to the “criminalization” of the symptoms of this afflicted population. The criminalization theory posits that the criminal justice system has served as the primary agent of social control over symptomatic individuals since the closure of state psychiatric hospitals in the 1950s and the tightening of civil commitment laws. The theory identifies untreated mental illness as the origin of individuals’ criminal justice involvement and mental health treatment as the clear solution to breaking their cycle of recidivism. This article evaluates the three main bodies of evidence offered in support of the criminalization theory: individuals’ movement from psychiatric hospitals to jails and prisons (“transinstitutionalization”), the heightened policing of individuals with serious mental illness, and the science linking mental illness and crime. This evaluation reveals that the criminalization theory — the understanding that animates most current policies aimed at offenders with serious mental illness—largely rests on intuitive assumptions that are often unverified and sometimes false.
A growing body of behavioral sciences literature constructs an alternative account of the relationship between mental illness and crime. Coined the “normalization theory,” it relies upon decades of research that demonstrate that clinical factors, such as diagnosis and treatment history, are not predictive of criminal activity. Instead, the same risks and needs that motivate individuals without mental illness also drive those with mental disorders to commit crimes. These “criminogenic risks” include, among others, substance abuse, employment instability, family problems, and poorly structured leisure time. Behavioral science researchers reject the premise that individuals with serious mental illness are overrepresented in the justice system because these individuals’ illnesses directly lead to criminal behavior. Instead, they theorize that serious mental illnesses fuel the greater accumulation and concentration of typical criminogenic risk factors. This recognition holds dramatic potential for the redesign of criminal justice programs. Programs that target the criminal behavior of offenders with mental illness should principally focus on addressing criminogenic risk factors that can be mitigated. Officials should also address mental health needs, but only to the extent necessary to facilitate a better criminogenic risk profile and fulfill constitutional obligations. Moreover, correctional experience suggests that institutions should allocate scarce programmatic resources according to offenders’ risk of reoffending and potential to achieve programmatic goals. These insights, which federal agencies are beginning to recognize, hold radical implications for the redesign — and possibly the existence — of jail diversion, mental health courts, specialized probation and parole, and reentry programs for offenders with serious mental illness.
Tuesday, October 09, 2018
Justice Kavanaugh joins the ACCA fray in his first set of SCOTUS arguments
As noted in this prior post, a new Supreme Court, due to the addition of new Justice Brett Kavanaugh, got started working this morning by hearing two cases concerning the application of the Armed Career Criminal Act. Via SCOTUSblog, I see the oral argument transcript in Stokeling v. United States is available on at this link and the transcript in United States v. Stitt is at this link. Helpfully, this additional post from SCOTUSblog provides these highlights:
In Stokeling v. United States, about 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 ACCA.
This argument has some moments that even young spectators seem to enjoy, such as when Roberts describes having his law clerks try to pull a dollar bill out of his hand while he held tight. (This was in response to an argument in the petitioner’s merits brief that “robbery can … occur where the offender does no more than grab cash from someone’s closed fist, tearing the bill without touching the person.”)
“It tears easily if you go like this,” Roberts says to Brenda Bryn, the lawyer for petitioner Denard Stokeling, motioning as if to tear a bill in half. “But if you’re really tugging on it … it requires a lot of force, more than you might think.”
Justice Sonia Sotomayor asks about whether a “ordinary pinch” can involve sufficient force to break the law. And to demonstrate, she pinches her neighbor on her right, Justice Neil Gorsuch. At that moment, he is lifting his coffee mug for a sip, and his wide-eyed reaction to being pinched suggests a mix of bemusement and mild alarm.
Whenever a justice asks a question, Kavanaugh looks down the bench at his colleague. He sometimes dons his reading glasses, and he jots notes. We cannot see whether he has his trademark Sharpie marker.
At 10:25 a.m., Kavanaugh has his first question, asking Bryn about her arguments relating to a 2010 Supreme Court ACCA decision, Curtis Johnson v. United States. “In Curtis Johnson, you rely heavily on the general statements of the court, but the application of those general statements was to something very specific: Battery and a mere tap on the shoulder,” Kavanaugh says to Bryn. “And all Curtis Johnson seemed to hold was that that was excluded. So why don’t we follow what Curtis Johnson seemed to do in applying those general statements to the specific statute at issue here and why wouldn’t that then encompass the Florida statute, which requires more than, say, a tap on the shoulder?”
In the second argument, for the consolidated cases of United States v. Stitt and United States v. Sims, the question is whether burglary of “a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as ‘burglary’” under the ACCA. Kennedy apparently decides that one hour of argument about the ACCA is enough, and he slips out at the break between the two arguments.
The Stitt and Sims argument will lead to questions about cars with mattresses, homeless people living in their cars in New York and Washington, and unoccupied recreational vehicles and campers.
Alito tells Erica Ross, an assistant to the solicitor general arguing that burglary of an unoccupied mobile structure should count as a strike under the ACCA, that the court has “made one royal mess” of its interpretations of the federal statute. Ross says that is something the court may need to think about in “some case,” but “I apologize … for continuing to bring us back to this case.” This simple point really tickles Justice Clarence Thomas for some reason, and he laughs heartily for several seconds.
Kavanaugh asks more questions in this second argument, though he also loses a couple of what I call “faceoffs” — when two justices battle for the floor, continuing to speak until one relents. He defers to Justice Ruth Bader Ginsburg at one point, and to Kagan at another. (Although the rule of thumb is that a junior justice ought to defer to a senior colleague in such situations, that rule is not always observed.)
Kavanaugh will have several extended colloquies, appearing more at ease with each one. Several times, Jeffrey Fisher of Stanford Law School, the court-appointed lawyer for the respondents in the second case, begins his answer by saying, “Well, Justice Kavanaugh, …” It is in those tiny moments that the reality sinks in that Brett Kavanaugh of Maryland is now an associate justice of the Supreme Court of the United States.
Monday, October 08, 2018
First cases for a new SCOTUS: two more efforts to sort out ACCA uncertainty with old criminal history
A new Supreme Court, due to the addition of new Justice Brett Kavanaugh, will get to work on old convictions by considering Tuesday morning the latest possible twists in an ever-twisting jurisprudence concerning the application of the Armed Career Criminal Act. The latest ACCA fun comes in the form of oral arguments in Stokeling v. United States and United States v. Stitt. Here are the basics on these cases via SCOTUSblog coverage:
Stokeling 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.
Stitt Issue: Whether burglary of a nonpermanent or mobile structure that is adapted or used for overnight accommodation can qualify as “burglary” under the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B)(ii).
Highlighting the importance of policies that support families values for the incarcerated
The group R Street has this notable new policy paper titled "The importance of supporting family connections to ensure successful re-entry" authored by Emily Mooney and Nila Bala. Here is the paper's introduction and conclusion:
As of the latest estimates, approximately two million individuals are currently incarcerated in the United States. Each of these has a family, which broadens the impact of incarceration to millions of family members across the nation. This brings negative repercussions: incarcerated parents are separated from children, interpersonal relationships become strained and financial support disappears. Furthermore, federal, state and local policies often present barriers to meaningful and continued family connections while incarcerated. Yet, paradoxically, it is during this time that positive family connections are so key. Indeed, they are critical to successful re-entry after a person’s time is served, as they help encourage individual transformation, mitigate the negative impact of incarceration on children and other loved ones, and support stronger families in general. This, in turn, makes communities safer. For these reasons, society can benefit by understanding the importance of these connections and creating policies that help to bolster them for the good of incarcerated individuals, their families and their communities at large....
Behind most incarcerated individuals is a family that is critical to encouraging positive change on the inside and supporting them as they prepare for life on the outside. Despite this, government policies and family circumstances often impede the ability of families to stay connected during incarceration. However, changes to government policies, community-based partnerships and the expansion of family-oriented programming can help families overcome these obstacles, with great benefit both to individuals and to society as a whole.
Sunday, October 07, 2018
I just noticed this recent paper on SSRN that had a title too good not to blog. The paper is authored by Ying Hu, and here is its abstract:
When a robot harms humans, are there any grounds for holding it criminally liable for its misconduct? Yes, provided that the robot is capable of making, acting on, and communicating the reasons behind its moral decisions. If such a robot fails to observe the minimum moral standards that society requires of it, labeling it as a criminal can effectively fulfill criminal law’s function of censuring wrongful conduct and alleviating the emotional harm that may be inflicted on human victims.
Imposing criminal liability on robots does not absolve robot manufacturers, trainers, or owners of their individual criminal liability. The former is not rendered redundant by the latter. It is possible that no human is sufficiently at fault in causing a robot to commit a particular morally wrongful action. Additionally, imposing criminal liability on robots might sometimes have significant instrumental value, such as helping to identify culpable individuals and serving as a self-policing device for individuals who interact with robots. Finally, treating robots that satisfy the above-mentioned conditions as moral agents appears much more plausible if we adopt a less human-centric account of moral agency.
The article does not discuss sentencing until its very end, but this paragraph covers robot punishment possibilities:
Assuming we can punish robots, a new question naturally follows: how should a robot be punished? In this regard, a range of measures might be taken to secure that the robot commit fewer offenses in the future. These include:
a. physically destroying the robot (the robot equivalent of a “death sentence”);
b. destroying or re-write the moral algorithms of the robot (the robot equivalent of a “hospital order”);
c. preventing the robot from being put to use (the robot equivalent of a “prison sentence”); and/or
d. ordering fines to be paid out of the insurance fund (the robot equivalent of a “fine”).
In addition, the unlawful incident can be used to design a training module to teach other smart robots the correct course of action in that scenario.
You be the Illinois judge: what sentence for Jason Van Dyke after second-degree murder conviction in slaying of Laquan McDonald?
Though somewhat eclipsed by Supreme Court confirmation controversies, a high-profile criminal case culminated with a murder conviction on Friday when a jury found Chicago police Officer Jason Van Dyke guilty Friday of second-degree murder in the 2014 shooting of 17-year-old Laquan McDonald. This CNN article about the verdict details that Van Dyke was also "found guilty of 16 counts of aggravated battery with a firearm [but] found not guilty of official misconduct." And this AP piece, headlined "With conviction, Van Dyke likely avoided decades behind bars," highlights some of the sentencing realities that attend this verdict:
Jurors convicted Chicago police Officer Jason Van Dyke for murder and aggravated battery in the slaying Laquan McDonald, the black teenager who was shot 16 times as he walked away carrying a knife on Oct. 20, 2014. But a legal expert explained that the 40-year-old Van Dyke is likely looking at less than 10 years in prison for killing the teen rather than many decades because jurors opted to convict him of second- and not first-degree murder.
After less than two full days deliberating on three weeks of testimony, jurors returned Friday with 17 guilty verdicts and one acquittal. By far the most serious charge Van Dyke faced originally was first-degree murder. But Judge Vincent Gaughan told jurors before they started deliberations that they had the option of replacing first-degree murder with second-degree murder.
First-degree required a finding that Van Dyke's use of deadly force wasn't justified — that it was both unnecessary and unreasonable. But Gaughan said jurors could find that Van Dyke truly believed his life was in jeopardy but that that belief wasn't reasonable. That's the criteria for second-degree murder.
The jury also found Van Dyke guilty of all 16 counts of aggravated battery with a firearm. Each count corresponded to every bullet Van Dyke shot into McDonald. They acquitted him on the least serious charge, official misconduct....
First-degree murder carries a maximum sentence of life imprisonment. And with enhancements for having used a gun, Van Dyke would have faced a mandatory minimum of 45 years, according to Chicago defense attorney Steve Greenberg, who has defended clients at more than 100 murder trials. Such a sentence, at Van Dyke's age, could have amounted to life. The punishment for second-degree murder is no less than four years but no more than 20 years behind bars.
Jurors weren't told anything about the range of punishments for each charge. The judge did tell them that whether one charge might carry a greater or lesser sentence shouldn't factor at all into their decisions.
Each count of aggravated battery carries a mandatory minimum six years and a maximum of 30 years in prison. If Van Dyke had to serve six for each of the 16 counts — and do so one sentence after another - that would add up to 96 years. But Greenberg said judges almost always order defendants to serve such sentences simultaneously. So, if Van Dyke gets the minimum for each count, he'd serve six years for all the battery convictions.
Another possibility is that the defense will ask, under complicated legal rules, for the judge to merge the crimes for which Van Dyke is convicted for sentencing purposes since they were all tied to a single event, Greenberg said. That could mean Van Dyke is effectively sentenced only for second-degree murder, with its lower four-year mandatory minimum.
For a man convicted with no previous criminal record, Greenberg said the mandatory minimum is his best guess for a sentence handed down on Van Dyke. "I would be shocked if he got a day over the four or six years," Greenberg said.
Greenberg said prison conditions for an officer, like Van Dyke, could be rougher than for average convicts. As a white officer convicted of killing a young African-American, prison authorities are likely to conclude he has to be kept away from other prisoners for his own safety. "He will probably be in a cell by himself," Greenberg said. "It will be very hard time." That may have already started. At prosecutors' request, Van Dyke's bond was revoked minutes after the verdicts were announced and Judge Gaughan ordered he be held in jail pending sentencing. He stood up from the defense table, then put his arms behind his back as two deputies led him away.
I am not an expert on Illinois sentencing law, but presuming this article has the law corrected, I am struck that the mandatory minimum prison term for second-degree murder in the state is 50% less than mandatory minimum for aggravated battery with a firearm. It is also notable and telling that if the sentencing judge here were permitted and inclined to run the various sentences consecutively rather than concurrently, the defendant here would be facing 100 years in prison as the applicable mandatory minimum. But if the crimes are found to be "merged" under Illinois law, four years could become the minimum and 20 years the max.
Thursday, October 04, 2018
En banc Eleventh Circuit finds way to uphold key clause of § 924(c) mandatory-minimum statute against vagueness challenge
If you cannot get enough of debates over federal statutory interpretation and modern "crime-of-violence" vagueness jurisprudence, the Eleventh Circuit today has delivered for you over 150 pages of excitement in the form of an en banc ruling in Ovalles v. US, No. 17-10172 (11th Cir. Oct. 4, 2018) (available here). Here is part of the start of the majority opinion:
The question before us is whether one of the key provisions of an important federal criminal statute, 18 U.S.C. § 924(c), is unconstitutionally vague. As relevant to our purposes, § 924(c) makes it a federal offense — punishable by a term of imprisonment ranging from five years to life — for any person to use, carry, or possess a firearm in connection with a “crime of violence.” 18 U.S.C. § 924(c)(1)(A). The provision challenged here — § 924(c)(3)’s “residual clause” — defines the term “crime of violence” to mean a felony “that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.” Id. § 924(c)(3)(B).
This case is in some respects a successor to Johnson v. United States, 135 S. Ct. 2551 (2015), and Sessions v. Dimaya, 138 S. Ct. 1204 (2018), in which the Supreme Court invalidated similarly-worded residual clauses on vagueness grounds. In the wake of those decisions, all here seem to agree that if § 924(c)(3)’s residual clause is interpreted to require determination of the crime-of-violence issue using what (in court-speak) has come be called the “categorical approach,” the clause is doomed.... In both Johnson and Dimaya, the Court concluded that application of a standard that requires a reviewing court “to ‘imagine’ an ‘idealized ordinary case of the crime’” rendered the challenged clauses impermissibly vague. Dimaya, 138 S. Ct. at 1214 (quoting Johnson, 135 S. Ct. at 2557–58).
On the flip side, Johnson and Dimaya also make clear — and it is common ground here — that if § 924(c)(3)’s residual clause is instead interpreted to incorporate what we’ll call a “conduct-based approach” to the crime-of-violence determination, then the provision is not unconstitutionally vague. As its name suggests, the conduct-based approach, in stark contrast to the categorical, focuses not on formal legal definitions and hypothetical “ordinary case[s],” but rather on the real-world facts of the defendant’s offense — i.e., how the defendant actually went about committing the crime in question....
The obvious (and decisive) question, then: Which is it here — categorical or conduct-based? Because we find ourselves at this fork in the interpretive road — the categorical approach imperiling § 924(c)(3)’s residual clause, a conduct-based reading saving it—we invoke the canon of “constitutional doubt.” Pursuant to that “elementary rule,” the Supreme Court has long held, “every reasonable construction must be resorted to in order to save a statute from unconstitutionality.” Hooper v. California, 155 U.S. 648, 657 (1895)....
Joining the Second Circuit, which recently came to the same conclusion, see United States v. Barrett, __ F.3d ___, 2018 WL 4288566 (2d Cir. Sept. 10, 2018), we find that § 924(c)(3)(B) can be read to embody the conduct-based approach — and therefore, under the constitutional-doubt canon, that it must be. Accordingly, we hold that § 924(c)(3)(B) prescribes a conduct-based approach, pursuant to which the crime-of-violence determination should be made by reference to the actual facts and circumstances underlying a defendant’s offense.
The rest of the majority opinion runs less than 50 pages, followed by more than 100 pages of concurrences and dissents that cannot be readily summarized. But Judge William Pryor's concurrence, which garners a number of addition votes, gets off to this start which I really appreciate and applaud:
How did we ever reach the point where this Court, sitting en banc, must debate whether a carjacking in which an assailant struck a 13-year-old girl in the mouth with a baseball bat and a cohort fired an AK-47 at her family is a crime of violence? It’s nuts. And Congress needs to act to end this ongoing judicial charade.
I join the majority opinion in full, but I write separately to explain why our resolution of this appeal forecasts how Congress should address the vexing issue of how to punish violent recidivists under laws like the Armed Career Criminal Act: by restoring the traditional role of the jury. The caselaw about how to punish recidivists has confounded the federal courts for decades and has made the resolution of this appeal tricky, but our decision also suggests a way out of the mess. Although our decision involves a contemporaneous crime and not a prior conviction, our conclusion that a jury may make findings about a defendant’s violent conduct applies with equal force to recidivist statutes. Indeed, the modern abandonment of the jury’s traditional role of making findings about prior convictions has created more problems than it has solved.
October 4, 2018 in Gun policy and sentencing, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (5)
Third Circuit going en banc to reconsider reach and application of Eighth Amendment to lengthy juvenile term-of-years sentence
In this post back in April, I noted the remarkable Third Circuit panel opinion in US v. Grant, No. 16-3820 (3d CIr. April 9, 2018) (available here), addressing the application of Eighth Amendment limits on juvenile sentences. The panel opinion in Grant is technically no longer law as of today thanks to this order by the Third Circuit:
A majority of the active judges having voted for rehearing en banc in the above captioned cases, it is ordered that the government’s petition for rehearing is GRANTED. The Clerk of this Court shall list the case for rehearing en banc on February 20, 2019. The opinion and judgment entered April 9, 2018 are hereby vacated.
In short form, defendant Corey Grant in the early 1990 was initially sentenced to LWOP for crimes committed when he was 16-years old. After Graham and Miller, he was resentenced to a 65-year federal prison term. The panel opinion found this term unconstitutional and suggested that "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." The full Third Circuit is apparently no so keen on this approach, and it will thus address this matter anew in the coming year.
October 4, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)
Tuesday, October 02, 2018
Challenging issues for SCOTUS in criminal cases that may impact only a few persons ever and the entire structure of government always
On the second oral argument day of the new Supreme Court Term, criminal law issues are front and center. Here is SCOTUSblog's overview via this round-up post:
Today the eight-justice court will tackle two more cases. The first is Gundy v. United States, in which the justices will consider whether a provision of the federal sex-offender act violates the nondelegation doctrine. Mila Sohoni previewed the case for this blog. Kathryn Adamson and Sarah Evans provide a preview at Cornell Law School’s Legal Information Institute, while Matthew Cavedon and Jonathan Skrmetti look at the case for the Federalist Society Review. Today’s second case is Madison v. Alabama, an Eighth Amendment challenge to the execution of a death-row inmate who has dementia and cannot remember his crime. This blog’s preview, which first appeared at Howe on the Court, came from Amy Howe. Lauren Devendorf and Luis Lozada preview the case for Cornell. Subscript Law’s graphic explainer is here. Tucker Higgins reports on the case for CNBC.
As the title of this post suggests, I think the Madison capital case is likely to impact only a few persons ever: only a few dozen of murderers are these days subject to real execution dates each year and only a very few of those persons are likely to able to make a credible claim of incompetence to seek to prevent the carrying out of a death sentence. The jurisprudential and philosophical issues in Madison still are, of course, very important and lots of SCOTUS cases may end up impacting only a few persons. But I cannot help but note what seems to me to be relatively small stakes in Madison.
I stress the limits of Madison in part because, as my post title suggests, I think the Gundy case could be the sleeper case of the Term because a major ruling on the nondelegation doctrine could radically reshape the entire modern administrative state. In this post last month, the original commentary of Wayne Logan concerning Gundy highlighted that SCOTUS has "not invalidated a congressional delegation in over eighty years ..., [and] the issue [taken up in Gundy could be] clearing the way for a potential major assault on the modern administrative state, which is shaped by countless congressional delegations of authority to agencies."
Prior related preview posts:
- SCOTUS preview guest post: "Strange Bedfellows at the Supreme Court"
- Another effective preview of coming SCOTUS review of SORNA delegation in Gundy
- Previewing the two capital punishment administration cases before SCOTUS this fall
- Previewing SCOTUS consideration of capital competency (and making a case for abolition)
UPDATE via SCOTUSblog: The transcript of oral argument in Gundy v. United States is available on the Supreme Court website; the transcript in Madison v. Alabama is also available; and authored by Amy Howe here, "Argument analysis: A narrow victory possible for death-row inmate with dementia?"
October 2, 2018 in Collateral consequences, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (10)
Monday, October 01, 2018
Previewing SCOTUS consideration of capital competency (and making a case for abolition)
The Supreme Court is scheduled to hear oral argument in Madison v. Alabama on Tuesday morning, and Amy Howe has this argument preview at SCOTUSblog titled "Justices to consider competency in capital cases." Her post starts this way:
It has been over 33 years since Vernon Madison shot and killed Julius Schulte, a police officer in Mobile, Alabama. Schulte had come to Madison’s house to protect Madison’s former girlfriend and her daughter while they moved out; Schulte was sitting in his car when Madison shot him twice in the back of the head. Madison was convicted of capital murder and sentenced to death, but next week the Supreme Court will hear oral argument on whether it would violate the Constitution to execute Madison when he has no memory of his crime.
Madison, now in his late 60s, has been on death row for over 30 years. During that time, he has had several strokes, which have left him with significant brain damage. Madison suffers from dementia and long-term memory loss; he is also legally blind and can no longer walk without assistance. Since Madison’s stroke, his lawyers tell the Supreme Court, Madison “has repeatedly asked for his mother to come and visit him even though she has been dead for years.”
Madison also cannot remember any of the details of the crime that put him on death row, including Schulte’s name, the events surrounding the crime, or his trial. After his execution was scheduled for January of this year, Madison went to state court to challenge his competency to be executed, armed with evidence that a court-appointed expert who had evaluated him, and whose findings had played a key role in earlier rulings that Madison was competent to be executed, was abusing narcotics and was eventually suspended from practicing psychology. The state court would have allowed Madison’s execution to go forward, but the Supreme Court stepped in and — over the objection of Justices Clarence Thomas, Samuel Alito and Neil Gorsuch — put the execution on hold while it considered Madison’s request for review.
Interestingly, the National Review has published this notable commentary authored by George Will discussing this case under the headline "America Should Strike Down the Death Penalty." Here are excerpts:
The mills of justice grind especially slowly regarding capital punishment, which courts have enveloped in labyrinthine legal protocols. As the mills have ground on, life has ground Madison, 68, down to wreckage. After multiple serious strokes, he has vascular dementia, an irreversible and progressive degenerative disease. He also is legally blind, his speech is slurred, he has Type 2 diabetes and chronic hypertension, he cannot walk unassisted, he has dead brain tissue, and urinary incontinence. A nd he no longer remembers the crime that put him on death row for most of his adult life. This is why on Tuesday, the Supreme Court will hear oral arguments about the constitutionality of executing him....
The court has said that “we may seriously question the retributive value of executing a person who has no comprehension of why he has been singled out and stripped of his fundamental right to life.” For many people, the death penalty for especially heinous crimes satisfies a sense of moral symmetry. Retribution — society’s cathartic expression of a proportional response to attacks on its norms — is not, however, the only justification offered for capital punishment. Deterrence is another. But by now this power is vanishingly small because imposition of the death penalty is so sporadic and glacial. Because the process of getting from sentencing to execution is so protracted, currently averaging 15 years, senescent persons on the nation’s death rows are going to be problems as long as there is capital punishment....
Sixty years ago, Chief Justice Earl Warren wrote that the Eighth Amendment — particularly the idea of what counts as “cruel” punishments — “must draw its meaning from the evolving standards of decency that mark the progress of a maturing society.” Concerning which, two caveats are apposite: “evolving” is not a synonym for “improving,” and a society can become, as America arguably is becoming, infantilized as it “matures.” That said, it certainly is true that standards of decency do evolve and that America’s have improved astonishingly since 1958: Think about segregated lunch counters and much else.
Conservatives have their own standards, including this one: The state — government — already is altogether too full of itself, and investing it with the power to inflict death on anyone exacerbates its sense of majesty and delusions of adequacy.
UPDATE: I just saw this interesting new OZY piece discussing Madison and related issues under the headline "Why the Battle over Dementia Patients on Death Row? Better Lawyers."
Friday, September 28, 2018
"Incapacitating Criminal Corporations"
The title of this post is the title of this new paper authored by William Robert Thomas now available via SSRN. Here is its abstract:
If there is any consensus in the fractious debates over corporate punishment, it is this: a corporation cannot be imprisoned, incarcerated, jailed, or otherwise locked up. Whatever fiction the criminal law entertains about corporate personhood, having an actual “body to kick” — and, by extension, a body to throw into prison — is not one of them. The ambition of this project is not to reject this obvious point, but rather to challenge the less-obvious claim it has come to represent: incapacitation, despite long being a textbook justification for punishing individuals, does not bear on the criminal law of corporations.
In this Article, I argue that incapacitation both can and should serve as a justification for punishing criminal corporations. Descriptively, I interrogate how rote appeals to the impossibility of corporate imprisonment obscure more pressing, challenging questions about whether and to what extent the criminal law can vindicate an account of incapacitation that extends to corporate persons. Excavating a richer conceptual framework for incapacitation from our practices of individual punishment, I demonstrate that sanctions we already impose in or just outside the criminal law can be better understood as efforts to incapacitate, rather than to deter or rehabilitate, a criminal corporation. Indeed, reevaluating our understanding of penal incapacitation provides reason to think that we have similar and perhaps stronger reasons for incapacitating corporate persons than we do individuals.
Prescriptively, I leverage this comparative framework to argue that incapacitation should be recognized as a core justification for corporate punishment. Although rehabilitation has gained traction in past decades as a basis for punishing corporations, incapacitation stands as a more realistic, more administrable, alternative. This is because a principle of rehabilitation has led to a practice of imposing on corporations intricately designed, but dubiously effective, compliance and internal governance reforms. Incapacitation, by contrast, lends itself to clear, discrete prohibitions for which the criminal law is better situated to justify, impose, and monitor.
Thursday, September 27, 2018
"'You Miss So Much When You’re Gone': The Lasting Harm of Jailing Mothers Before Trial in Oklahoma"
The title of this post is the title of this big new report produced by Human Rights Watch and the ACLU. Here is part of the report's starting summary:
Every day in Oklahoma, women are arrested and incarcerated in local jails waiting — sometimes for weeks, months, a year, or more — for the disposition of their cases. Most of these women are mothers with minor children.
Drawing from more than 160 interviews with jailed and formerly jailed mothers, substitute caregivers, children, attorneys, service providers, advocates, jail officials, and child welfare employees, this report shows how pretrial detention can snowball into never-ending family separation as mothers navigate court systems and insurmountable financial burdens assessed by courts, jails, and child welfare services....
While most women admitted to jails are accused of minor crimes, the consequences of pretrial incarceration can be devastating. This report finds that jailed mothers often feel an added, and unique, pressure to plead guilty so that they can return home to parent their children and resume their lives. These mothers face difficulties keeping in touch with their children due to restrictive jail visitation policies and costly telephone and video calls. Some risk losing custody of their children because they are not informed of, or transported to, key custody proceedings. Once released from jail, they are met with extensive fines, fees, and costs that can impede getting back on their feet and regaining custody of their children.
Women are the fastest growing correctional population nationwide and since the 1990s, Oklahoma has incarcerated more women per capita than any other US state. Local jails (which typically house people prior to conviction, sentenced to short periods of incarceration, or awaiting transfer to prisons for longer sentences) are a major driver of that growth. On a single day, the number of women in jails across the US has increased from approximately 8,000 in 1970 to nearly 110,000 in 2014, a 1,275 percent increase, with rural counties accounting for the largest growth rate. Many times more are admitted to jail over the course of a year.
The growth in women’s incarceration also means growth in the number of jailed mothers, which has doubled since 1991. Nationwide, more than 60 percent of women in prisons and nearly 80 percent of women in jails are mothers with minor children. A study conducted by the US Bureau of Justice Statistics reported that a majority of incarcerated mothers lived with and were the sole or primary caretaker of minor children prior to their incarceration.
This means that when mothers go to jail or prison, their children are more likely not to have a parent left at home, and can either end up with other relatives or in foster care. One in 14 children in the US, or nearly six million children, have had a parent behind bars, which researchers identify as an adverse childhood experience associated with negative health and development outcomes. Children of color are disproportionately impacted by parental incarceration, with one in 9 Black children having had an incarcerated parent compared to one in 17 white children.
Jailed mothers are often dealing with a myriad of issues prior to their incarceration, which is why comprehensive support is essential to keep families together, disrupt cycles of incarceration, and to preserve human rights to liberty, due process, equal protection, and family unity. Losing contact with and custody of their minor children should not be a consequence of arrest and criminal prosecution.
While nationally and in Oklahoma the rate of women’s incarceration is garnering increasing attention, many barriers to achieving necessary reforms remain.
Human Rights Watch and the ACLU urge Oklahoma and other states to require the consideration of a defendant’s caretaker status in bail and sentencing proceedings, expand alternatives to incarceration, facilitate the involvement of incarcerated parents in their children’s lives and proceedings related to child custody, and substantially curb the imposition of fees and costs, which can impede reentry and parent-child reunification.
September 27, 2018 in Collateral consequences, Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (1)
Tuesday, September 25, 2018
Bill Cosby gets 3 to 10 years of state imprisonment with no bail pending appeal
As reported in this USA Today article, headlined "Bill Cosby sentenced to three to 10 years in state prison, remanded to custody immediately," a high-profile sentencing ended in a high-profile defendant going directly to prison. Here are some of the details:
A handcuffed Bill Cosby was immediately taken into custody Tuesday after a Montgomery County judge sentenced him to three to 10 years in state prison for the sexual assault of Andrea Constand.
“It is time for justice. Mr. Cosby, this has all circled back to you. The time has come,” Judge Steven O’Neill told the convicted sex offender, denying his request for bail pending appeal and ordering him into immediate custody. He quoted from Constand’s statement to the court, in which she said Cosby took her "beautiful, young spirit and crushed it.”
After the sentencing, Cosby removed his jacket, tie and watch before being taken away in handcuffs, an officer holding his arm. He did not respond to a reporter's request for comment.
Cosby publicist Andrew Wyatt issued a fiery retort outside the courthouse, saying Cosby was denied a fair trial and calling the proceeding "the most racist and sexist trial in the history of the United States." He cast blame on District Attorney Kevin Steele; a "racist and sexist mass media"; and three white female psychologists "who make money off of accusing black men of being sexual predators."...
Before announcing Cosby's prison term, O'Neill ruled that he would be designated a "sexually violent predator," requiring that he register as a sex offender and undergo counseling for the rest of his life after his release from prison. Cosby was fined $25,000 and ordered to pay court costs.
The sentence is in line with the one sought by Steele, who asked O’Neill to impose a prison term of five to 10 years after Cosby's conviction in April on charges he drugged and sexually assaulted Constand in 2004. A defense attorney had asked that Cosby, 81, be spared a prison term, citing his age and frailty....
Cosby’s lawyers asked that he be allowed to remain free on bail, but the judge appeared incredulous over the request and said he would not treat the celebrity any differently from others.
At a post-trial news conference, Steele said justice had finally been served, calling the sentence "fair and significant."
“It’s been a long time coming, but (justice) arrived when a convicted felon named William H. Cosby Jr. left the courtroom in handcuffs, headed off to state prison for his crimes," he said. "It’s been a long wait for our victim, Andrea Constand, as it has for the other women who have endured similar sexual assaults and rapes at the hands of the defendant.”
He said Cosby's fame, fortune and popularity helped him create a deceptive image. “For decades, the defendant has been able to hide his true self and hide his crimes using his fame and fortune. He’s hidden behind a character, Dr. Cliff Huxtable (of "The Cosby Show"). It was a seminal character on TV and so was the family, but it was fiction," Steele said. "Now, finally, Bill Cosby has been unmasked, and we have seen the real man as he is headed off to prison."
Prior related posts:
- You be the state judge: what sentence for Bill Cosby for conviction on three counts of aggravated indecent assault?
- "Why Bill Cosby may not spend any time in prison"
- "Are Elderly Criminals Punished Differently Than Younger Offenders?"
- "Will Bill Cosby’s Trip From America’s Dad to Sex Offender End in Prison?"
Monday, September 24, 2018
Details on not yet complete sentencing of Bill Cosby
The sentencing of Bill Cosby following his conviction on three state charges in Pennsylvania got started today, but did not reach a conclusion. This lengthy New York Times article, headlined "Bill Cosby Sentencing: Psychologist Says Threat to Women Remains," reports on what transpired. Here are excerpts:
In the first of two days of hearings to determine Bill Cosby’s sentence for sexual assault, a psychologist for a state panel testified that Mr. Cosby deserved to be categorized as a “sexually violent predator” because he had a personality disorder that pushed him to have sex with nonconsenting partners.
The finding by the psychologist for Pennsylvania’s Sexual Offenders Assessment Board can be a factor in sentencing and in the conditions imposed on a person found to be a predator, both in prison and afterward. But the final decision rests with Judge Steven T. O’Neill who is presiding over the hearing that could end Tuesday with one of the world’s best-known entertainers entering a prison cell.
Mr. Cosby’s lawyer, Joseph P. Green, had argued that Mr. Cosby’s age, 81, and legal blindness meant he was no risk, especially since there have been no new allegations of sexual abuse leveled against him since 2004. “How’s he going to meet these people?” said Mr. Green. “There is no reasonable prospect that an 81-year-old blind man is likely to reoffend.”
But the psychologist, Kristen F. Dudley, said she did not believe the disorder had dissipated with age. “It is possible that he has already met someone who could be a future victim,” she said. She said that, while Mr. Cosby had declined to meet with her, she was able to draw that conclusion by going through “boxes of documents,” including transcripts from Mr. Cosby’s two trials, one of which ended in April with his conviction on three counts of aggravated indecent assault. Mr. Cosby was convicted of drugging and assaulting Andrea Constand, a former Temple University employee for whom he emerged as a mentor....
Mr. Cosby’s team said its expert witness could not testify until Tuesday, so Judge O’Neill agreed to wait until then to make a decision on the predator determination and Mr. Cosby’s sentence. If the judge agrees with the board’s psychological assessment, Mr. Cosby would be required to have routine counseling for the rest of his life, and even if not sentenced to prison, he would be required to report monthly to the police.
Mr. Cosby’s legal team had objected to the whole discussion, asserting that the legality of the state’s predator determination process is questionable because, among other things, it does not use the “beyond reasonable” doubt formula for findings in criminal cases. “The statute is unconstitutional,” said Mr. Green, but the judge found otherwise.
Mr. Cosby had faced a maximum 30-year prison term, 10 years for each of three counts of aggravated indecent assault he was convicted of. But Judge O’Neill chose on Monday to merge the counts, as allowed when they stem from the same event. In this case, they originated with an encounter in January 2004 when, Ms. Constand said, Mr. Cosby sexually assaulted her after giving her pills that made her drift in and out of consciousness.
In their remarks, prosecutors asked Judge O’Neill to sentence Mr. Cosby to a five- to 10-year term. “By deterring this type of conduct with a sentence that is appropriate will say that you can no longer get away with this,” the district attorney, Kevin R. Steele, told the court....
Mr. Green argued in favor of house arrest, saying Mr. Cosby is a danger to no one and that the court must be careful not to allow public opinion to affect its decision-making. “In this case we rely on you to make sure that that public advocacy doesn’t affect the application of the rule of law,” he said, adding later, “It’s your obligation to make sure that the sentencing decision is not affected by all that noise.”
Judge O’Neill will also have to consider state guidelines that recommend, but do not mandate, appropriate sentence ranges. Those guidelines, which account for any previous criminal record (Mr. Cosby has none), the seriousness of his offense, and mitigating and aggravating factors, suggest a range of about 10 months to four years. (Sentences in Pennsylvania are given as a range of a minimum and a maximum. Inmates with good behavior may be eligible for parole when they have reached the minimum.)...
Ms. Constand, who now works as a massage therapist in Canada, spoke only briefly as her victim’s impact statement had already been incorporated into the record. “The jury heard me,” she said, “Mr. Cosby heard me and now all I am asking for is justice as the court sees fit.”... Though dozens of other women have accused Mr. Cosby of drugging and sexually assaulting them, Judge O’Neill rejected a prosecution request to allow any of them to provide their accounts at the hearing.
Mr. Cosby’s defense team chose not to present additional witnesses to discuss, for example, Mr. Cosby’s character or any good works. But in his remarks, Mr. Green emphasized what he called Mr. Cosby’s youth of hardship and racism, his time in the United States Navy and discussed his educational achievements....
Mr. Cosby’s lawyers have filed several motions suggesting that they will file an appeal that challenges the judge’s rulings and even the judge’s personal integrity. A key question for Tuesday will be whether Mr. Cosby is allowed to remain out on bail while he pursues those appeals, a process that could take years.
His lawyers will argue that he is not a flight risk, and that he is not likely to commit another crime. But if Judge O’Neill were to permit him to stay at home, the judge would surely face bitter criticism from the many female accusers eager for closure this week. “I don’t think the judge will let him out on appeal; he has had his freedom for a long time,” said Barbara Ashcroft, a former prosecutor.
Prior related posts:
- You be the state judge: what sentence for Bill Cosby for conviction on three counts of aggravated indecent assault?
- "Why Bill Cosby may not spend any time in prison"
- "Are Elderly Criminals Punished Differently Than Younger Offenders?"
- "Will Bill Cosby’s Trip From America’s Dad to Sex Offender End in Prison?"
US Sentencing Commission releases new report on application of mandatory minimum penalties specific to federal identity theft offenses
Via email, I learned that the US Sentencing Commission has released another big report as part of its terrific series of recent reports diving into the application of federal mandatory minimum sentencing provisions. This latest report is titled "Mandatory Minimum Penalties for Federal Identity Theft Offenses," and its basic coverage and key findings are outlined on this USSC webpage. Here are excepts from the summary:
This publication examines the application of mandatory minimum penalties specific to identity theft offenses. Using fiscal year 2016 data, this publication includes analyses of 18 U.S.C. § 1028A, which provides for a two-year mandatory minimum penalty, as compared to identity theft offenses that do not carry mandatory minimum penalties, as well as the impact of these offenses on the Federal Bureau of Prisons (BOP) population....
Mandatory minimum penalties for identity theft offenses are applied less often in the federal system compared to other mandatory minimum penalties.
Offenders convicted under section 1028A comprised only 1.6 percent (n=978) of federal offenders sentenced in fiscal year 2016....
The percentage of identity theft offenders convicted under section 1028A has steadily increased, more than doubling from 21.9 percent in fiscal year 2006 to 53.4 percent in fiscal year 2016. This percentage is more than ten percentage points higher than reported in the Commissions 2011 Mandatory Minimum Report, when it was 42.6 percent....
Sentences imposed pursuant to section 1028A are longer than sentences imposed for identity theft offenses not carrying a mandatory minimum penalty.
In fiscal year 2016, the average sentence length for offenders convicted of at least one count under section 1028A was more than double the average sentence length for offenders convicted of an identity theft offense not carrying a mandatory minimum penalty (51 months compared to 22 months)....
In addition, other charging and plea decisions also play a role in the application and impact of identity theft mandatory minimum penalties....
The average sentence for offenders who were convicted under section 1028A and another statute was more than double the average sentence for offenders convicted only under section 1028A (54 months compared to 22 months)....
The section 1028A mandatory minimum penalty impacts Black offenders more than any other racial group.
Black offenders were convicted under section 1028A at a higher rate than any other racial group. In fiscal year 2016, Black offenders represented 49.8 percent of all identity theft offenders, yet accounted for 58.7 percent of offenders convicted under section 1028A....
Black offenders were also convicted under section 1028A at the highest rate when considering identity theft offenders within each racial group. In fiscal year 2016, a majority (63.1%) of Black identity theft offenders were convicted under section 1028A, which was higher than the rate for White offenders (47.8%), Other Race offenders (42.0%), and Hispanic offenders (41.1%).
Black offenders were also most likely to be convicted of multiple counts under section 1028A, comprising 58.5 percent of such offenders, followed by White offenders (25.5%), Hispanic offenders (13.2%), and Other Race offenders (2.8%).
Because I do not follow this area of federal sentencing all that closely, I do not know just what to make of the racial data reported here. But I must admit to being persistently discouraged by criminal justice data that persistently shows more application of our toughest penalties against persons of color.
September 24, 2018 in Data on sentencing, Detailed sentencing data, Mandatory minimum sentencing statutes, Offender Characteristics, Offense Characteristics, Race, Class, and Gender | Permalink | Comments (0)
Thursday, September 20, 2018
"Will Bill Cosby’s Trip From America’s Dad to Sex Offender End in Prison?"
The title of this post is the headline of this lengthy New York Times review of the high-profile sentencing set to take place at the start of next week. The article includes some original analysis of Pennsylvania sentencing outcomes, and here are some excepts that should be of interest to sentencing fans:
When Bill Cosby arrives at the Montgomery County Courthouse next week to be sentenced for sexual assault, he will find out whether prison is the final stop on his descent from beloved entertainer to disgraced felon. But the judge making that decision, Steven T. O’Neill, will confront his own personal pressures, weighty expectations and knotty legal challenges. Chief among them: What to do with an 81-year-old sex offender who could become one of the most famous Americans ever to enter a cell?
At a time when the country is finally reckoning with a culture of predatory sexual abuse by powerful men, Judge O’Neill is likely to survey a courtroom in Norristown, Pa., that is filled with many of the dozens of women who say Mr. Cosby drugged and assaulted not just Andrea Constand, but them, too. A large number of these women expect a long prison sentence, one that will put an exclamation mark on the first major conviction of the #MeToo era.
“My wound was greatly healed by the guilty verdict in the spring,” said Lili Bernard, an actress who says that Mr. Cosby drugged and raped her in the early 1990s. “But to see him in handcuffs, that would be like, ‘Wow.’ We, the victims, deserve that.”
Prosecutors have said they will push for the maximum 30-year prison term: 10 years on each of three counts of aggravated indecent assault. But Mr. Cosby’s lawyers are sure to fight that, depicting him as a frail old man with failing vision, incapable of assaulting another woman or surviving a long sentence.
And Judge O’Neill will have to consider state guidelines that recommend, but do not mandate, appropriate sentence ranges. A New York Times analysis of Pennsylvania court data for the past five years found that offenders convicted of crimes similar to Mr. Cosby’s often did not receive the maximum penalty, but were more typically given sentences of two to five years....
Mr. Cosby’s spokesman, Andrew Wyatt, confirmed that Mr. Cosby would appeal his conviction, but declined to specify on what grounds.... Mr. Wyatt said Mr. Cosby would ask to remain free on bail, post-sentencing, while he pursues his appeal, a process that could take years. If Judge O’Neill were to allow that, he would surely face criticism from the many female accusers looking to find closure in the case.
“We will all feel very let down by that,” said Victoria Valentino, a former model for Playboy who says Mr. Cosby drugged and raped her in Los Angeles in 1969....
Testimony concerning prior alleged crimes is only allowed in Pennsylvania, as in other states, if, among other conditions, it demonstrates a signature pattern of abuse. But its inclusion is extremely rare, and Judge O’Neill never explained why he allowed the five additional women to testify in the trial this year after allowing only one additional accuser to speak at Mr. Cosby’s first trial in 2017. That ended in a mistrial after the jury failed to reach a verdict. “The No. 1 issue is definitely that big change, of letting in those additional complainants in the case,” said Shan Wu, a former sex-crimes prosecutor in Washington. “I am sure that Cosby’s team are licking their chops.”
Experts say judges are often more lenient about bail in cases where the appeal issues are viewed as strong. “When someone has a legitimate issue,” said Brian Jacobs, a former federal prosecutor in New York who has studied the topic, “and there’s an argument that certain evidence should not have been allowed that could reduce the chance of a conviction at retrial, then there is an interest in allowing that person to stay out on bail.”
Mr. Cosby, who has denied sexually abusing any of the women, is currently free on $1 million bail, though he is confined to his suburban Philadelphia home and has to wear a GPS monitoring device. After Mr. Cosby’s conviction, prosecutors had immediately asked for his bail to be revoked, but Judge O’Neill said he did not view Mr. Cosby as a flight risk, one of the criteria weighed in such a decision. Legal experts said it was generally uncommon in Pennsylvania for offenders to be allowed to remain free on bail, pending appeal, after a judge had sentenced them to incarceration.
Mr. Cosby was convicted on these three counts: penetration with lack of consent, penetration of the victim while she was unconscious, and penetration after administering an intoxicant. The New York Times reviewed state sentencing data for 121 cases over the past five years in which the most serious conviction was for at least one of those three counts. Mr. Cosby is far older than all of the others convicted. Their median age was 36, though in a few cases, the offender was in his late 60s.
A vast majority of the offenders also received fewer than 10 years, with a median sentence of two to five. But there were several cases in which judges gave maximum sentences of 20 years or more to offenders who had been convicted on multiple counts of aggravated indecent assault, or a single count in tandem with other, lesser crimes.
In some of those cases, the judge eschewed a common practice of making multiple sentences concurrent and instead ruled that they be served consecutively. In another case, the person qualified for a more severe sentence because he was viewed as a repeat offender under Pennsylvania’s sex offender laws.
Mr. Cosby had never before been convicted of a crime, and his team is expected to argue that his three counts should be merged into a single count, a decision that would mean that he would face a prison term of no more than 10 years.
Prosecutors have asked that an unspecified number of women who have accused Mr. Cosby of sexually assaulting them be allowed to testify at the sentencing hearing, a move that one of Mr. Cosby’s lawyers, Joseph P. Greene Jr., is trying to block. But Ms. Constand will certainly be allowed to speak at the hearing, as will Mr. Cosby, if he so chooses. The person being sentenced usually has the last word.
Mr. Jacobs, the former federal prosecutor, said that even if none of the other women were allowed to speak, he had to believe that the number of accusers who say Mr. Cosby preyed on them for decades would be an important factor in Judge O’Neill’s thinking. One purpose of sentencing in such a high-profile case can be to send a message that might deter others, he said. “The judge would have to be conscious of the fact that this is one of the earliest sentences in the Me Too era,” Mr. Jacobs said.
Judge O’Neill declined to comment for this article. But Dennis McAndrews, a Pennsylvania lawyer who has known the judge since they attended Villanova University School of Law together, said he did not expect Judge O’Neill to have any problem navigating the maze of factors in this sentencing. “He has been a judge for 14 years,” Mr. McAndrews said, “and in terms of experience and temperament, he has got all the tools necessary to assimilate and synthesize every piece of information that will come before him.”
Prior related posts:
- You be the state judge: what sentence for Bill Cosby for conviction on three counts of aggravated indecent assault?
- "Why Bill Cosby may not spend any time in prison"
- "Are Elderly Criminals Punished Differently Than Younger Offenders?"
Wednesday, September 19, 2018
Office of Inspector General assails how federal Bureau of Prisons manages female prisoners
As reported in this Washington Times piece, "A critical shortage of correctional officers plaguing the nation’s prison system is having a disparate effect on female inmates, a government watchdog said Tuesday." Here is more about the report and reactions to it:
The Justice Department’s inspector general, Michael E. Horowitz, concluded the dearth of trained prison employees is restricting the access of female prisoners to necessary care and services. “The lack of sufficient staff is most noticeable at larger female institutions,” Mr. Horowitz wrote in a report....
The report also concluded that 90 percent of the female inmate population would benefit from trauma treatment, but staffing shortages make it nearly impossible to provide eligible inmates with the care they need, according to the report....
Kara Gotsch, director of Strategic Initiatives at the Sentencing Project, said she was “not shocked” by the inspector general’s findings. “There is a staffing shortage system-wide,” she said. “But staff shortages are more complicated with women prisoners because it’s compounded when you have male correctional officers in positions where women are required to do the strip searches.”
The inspector general recommended the Bureau of Prisons improve the allocation of staff across the country’s correctional facilities and ensure that all staffers have received proper training. In a response attached to the report, Hugh Hurwitz, acting director for the Federal Bureau of Prisons, said he agrees with the inspector general’s recommendations and vowed to improve both staffing and training. “The BOP will determine the appropriate level of staffing that should be allocated to the Women and Special Populations Branch, based on an analysis of its broad mission and responsibilities,” Mr. Hurwitz wrote.
Ms. Gotsch said the best solution to the issue is sentencing reform to reduce the number of women incarcerated for low-level offenses. “We are putting too many women in prison for low-level offenses for too long,” she said. “There is never enough money in the federal budget to adequately care for prisoners if we have significant overcrowding and maintain these high levels of incarceration.”
The full 60-page OIG report is titled "Review of the Federal Bureau of Prisons’ Management of Its Female Inmate Population," and it is available at this link. Here is a paragraph from its introduction:
We concluded that BOP has not been strategic in its management of female inmates. We determined that BOP needs to take additional steps at the Central Office level to ensure that female inmate needs are met at the institution level. Our review identified instances in which BOP’s programming and policy has not fully considered the needs of female inmates, which has made it difficult for inmates to access certain key programs and supplies. Further, while BOP is adhering to federal regulations and BOP policies requiring that only female Correctional Officers conduct strip searches of female inmates, BOP’s method for ensuring compliance with these requirements assigns staff inefficiently. Finally, we found that BOP’s conversion of Federal Correctional Institution (FCI) Danbury to house male inmates negatively affected certain female inmates who had been housed there.
Tuesday, September 18, 2018
Previewing the two capital punishment administration cases before SCOTUS this fall
Garrett Epps has this lengthy new commentary at The Atlantic under the headline "The Machinery of Death Is Back on the Docket: Two Supreme Court cases this fall pose hard questions about the death penalty." Here are some excerpts:
Madison v. Alabama, to be argued on October 2, asks whether states can execute demented murderers who no longer remember their crimes; Bucklew v. Precythe asks when, if ever, a prisoner’s individual physical condition makes execution by lethal injection “cruel and unusual.”...
[Vernon] Madison’s legal team — led by Bryan Stevenson of the Equal Justice Initiative—argues that “No penological justification or retributive value can be found in executing a severely impaired and incompetent prisoner.”
Alabama’s response is that the goals of capital punishment — retribution for the wrong and sending a warning to possible future offenders—are served as long as Madison knows why he is being executed, even if he doesn’t remember committing the acts. Madison’s particular condition may have been verified by doctors, the state argues, but dementia has many causes. Future claims of dementia and memory loss will be too easy to fake.The high court has already held that states may not execute the mentally ill or the intellectually disabled; the leap to the demented would seem inevitable. But Justice Anthony Kennedy, the force behind these limits, has left the court, and death jurisprudence, as of the first Monday of next month, will likely be more volatile than usual.
In November, the court will take up the case of Russell Bucklew, whom the state of Missouri seeks to execute for the 1996 murder of Michael Sanders.... Bucklew doesn’t contest his guilt, nor does he claim that Missouri’s lethal-injection protocol is in itself “cruel and unusual.” His is what lawyers call an “as applied” challenge. What that means is this: Though lethal injection may pass muster for most executions, he argues, in his individual case, because of his unusual physical condition, the injection will cause him intense and intolerable pain.
He suffers from a rare medical condition call cavernous hemangioma. The condition has given rise to multiple blood-filled tumors in his head and mouth. These make it difficult to breathe and are prone to bloody rupture. He must sleep sitting up to avoid choking on his own blood. Being strapped flat to a gurney will subject him to suffocation, he argues. In addition, since his blood vessels are affected, he says, those administering the drugs will probably have to use a lengthy and painful procedure called a “cutdown” before the drugs can be administered, prolonging the agony....
Bucklew did offer an alternative already provided in Missouri law — a gas chamber filled with nitrogen gas, which would render him unconscious and then dead without the agony of suffocation. The Eighth Circuit said that he did not prove the gas chamber would be better. The court below had heard from two expert witnesses — one who described the agony of lethal injection and another who stated that gas would kill him more quickly. A trial court could compare the two descriptions and reach its own conclusion about relative agony. Not good enough, said the appeals court; Bucklew was required to provide one expert who would offer “comparative testimony” — in effect, a single witness to say that one method is less cruel than another....
The Bucklew case, however it is resolved, shows how fully the court has become enmeshed in the sordid details of official killing. As the population of death row ages, issues of age-related disease and dementia will become more important in assessing individual death warrants, and the court will be the last stop for those challenged.
The court seems likely to be hostile to prisoners’ claims, however. In recent years, when the high court stepped in to halt executions, Justice Anthony Kennedy was usually the deciding vote. Kennedy will almost certainly be replaced by Brett Kavanaugh. Kavanaugh is formally an unknown on the issue. His conservatism in general, however, is orthodox, and conservative orthodoxy is hostile to new claims that executions are “cruel and unusual.”
September 18, 2018 in Baze and Glossip lethal injection cases, Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)
Sunday, September 16, 2018
Making the case for a bill to end juve LWOP in the federal system
Marc Levin and Jody Kent Lavy have this new commentary in The Hill under the headline "Sentencing reform is critical for youth in the justice system." Here are excerpts:
As states across the country move to right-size their prison systems, managing to reduce incarceration, costs and crime, it is important to consider reform at the federal level as well. And when it comes to reforming our sentencing laws, there seems no better place to start than with the most vulnerable among us: our children. The United States is the only country known to impose life without the possibility of parole on people under the age of 18.
Congressman Bruce Westerman (R-Ark.) took the lead on reform by introducing HR 6011, which would end life-without-parole and de facto life sentences for children in the federal criminal justice system. Westermanhas been joined by a bipartisan team of co-sponsors — Karen Bass (D-Calif.), Tony Cardenas (D-Calif.) and Lynn Jenkins (R-Kansas) — but other members of Congress must also show their support in this policy rooted in redemption, rehabilitation, and second chances....
Imposing excessive sentences on children ignores what adolescent development research has documented. And in just the last five years, conservative states like North Dakota, Utah, and Westerman’s native Arkansas have led the way in banning life-without-parole for children. The Arkansas legislation, now titled Act 539, affects more than 100 people in the state and received broad bipartisan support in the legislature. Nineteen other states and the District of Columbia prohibit youth from being sentenced to a life in prison with absolutely no hope of re-entering as a productive member of society and no goal to work toward.
Should it pass, HR 6011 would ensure that children sentenced in the federal system have the opportunity to petition a judge to review their sentence after they have served 20 years in prison. They would then be afforded counsel at each of their review hearings — a maximum of three — where the judge would consider, among other factors, their demonstrated maturity, rehabilitation, and fitness to re-enter society. In other words, this bill does not guarantee release for anyone, but would ensure that children prosecuted and convicted of serious crimes in the federal system are afforded an opportunity to demonstrate whether they are deserving of a second chance. HR 6011 holds children accountable while providing a reason to pursue self-betterment. It gives hope to those who would otherwise be staring down a hopeless life sentence without the possibility of a second chance....
We hope other members of Congress will join Congressman Westerman’s bipartisan efforts to create a more fair and just system for our children who are convicted of serious crimes in the federal system. Mercy is justice, too, and no one is more deserving of our mercy and the opportunity for a second chance than our children.
"A Defense of Modern Risk-Based Sentencing"
The title of this post is the title of this new paper authored by Christopher Slobogin now available via SSRN. Here is its abstract:
In theory, accurate assessments of offender risk can save money, promote efficient allocation of correctional resources, and better protect the public. In pursuit of these goals, some jurisdictions have begun using structured means of assessing relative risk. This article briefly describes modern risk assessment instruments, the reasons why they might be preferred over traditional means of assessing risk, and three principles — the fit, validity and fairness principles — that should govern their use. It then contends that, when limited by these or similar principles, criminal justice dispositions can justifiably be based on assessments of risk, despite concerns about their reliability, consistency and legitimacy.
Inaccuracy and disparity is as prevalent in desert-based sentencing as it is in risk-based sentencing. More importantly, desert-based sentencing is not as consistent with, and risk-based sentencing is not as inimical to, autonomy and dignity values as is commonly thought. The overall goal of these arguments is to defend modern risk-based sentencing against abolitionist proposals that could do more harm than good, both to offenders and to a punishment system that, at least in the United States, is obscenely harsh.
Tuesday, September 11, 2018
A terrific partial unpacking of "Johnson v. United States: Three years out"
I noted in posts here and here last month, Attorney General Jeff Sessions and Senators Orrin Hatch and Tom Cotton are talking up the need for reform to the Armed Career Criminal Act in response to the Supreme Court's 2015 ruling in Johnson v. US. I just now noticed that Andrew Hamm has this lengthy follow-up post at SCOTUSblog under the title "Johnson v. United States: Three years out." I recommend that post in full, and here is a flavor:
After the decision in Johnson, individuals sentenced under ACCA’s now-defunct residual clause filed petitions for collateral review, a procedure that allows prisoners, within certain constraints, to ask a court to amend their sentences. Additional follow-on litigation to Johnson has involved questions about other aspects of ACCA’s “violent felony” definition, as in next term’s United States v. Stitt, as well as vagueness challenges to definitions of “violent felony” in other statutes, as in last term’s Sessions v. Dimaya.
But even as these and other challenges play out in the courts, Johnson’s real-world consequences in the three years since the case was decided raise other questions about recidivism, re-entry and policy. For example, have people sentenced as career offenders and released early after Johnson gone on to commit more crimes? If some have, are certain, less vague sentence enhancements — as Sessions has recommended and as new legislation introduced by two Republican senators would impose — the proper “fix” to Johnson? This post looks at some of the different factors at play....
Earlier this month, two Republican senators, Orrin Hatch of Utah and Tom Cotton of Arkansas, introduced the Restoring the Armed Career Criminal Act to, as they wrote in an op-ed for the Washington Examiner, “fix the law that was struck down.” In their press releases announcing the proposed legislation, Hatch and Cotton mentioned victims in their states whom Sessions also discussed. According to a one-pager about the legislation, the act “would do away with the concepts of ‘violent felony’ and ‘serious drug offense’ and replace them with a single category of ‘serious felony.’ A serious felony would be any crime punishable by 10 years or more.”
Brian Colas, Cotton’s general counsel, and Baron-Evans agree that this new legislation would avoid the vagueness problems of the original ACCA residual clause. They disagree on how broadly the law would sweep. Whereas Colas points to the fact the crimes must be punishable by 10 years or more, which he takes as a proxy for the high seriousness of an offense, Baron-Evans worries about the many people regularly sentenced to less than 10 years but for whom 10 years or more would represent a statutory maximum.
Raghavan suggests that subjecting drug offenders to the same sentencing enhancement as violent offenders may not be warranted based on recidivism rates. In its 2016 report on people sentenced as career offenders, the Sentencing Commission split individuals into three categories: career offenders with only drug-trafficking offenses, those with only violent offenses, and those with mixed offenses. People sentenced as career offenders with only drug-trafficking offenses had a lower recidivism rate than those in the other categories. Among those who did recidivate, those with only drug-trafficking offenses “tended to take longer to do so” than those in the other categories. Additionally, “offenders in the other two pathways who were rearrested were more likely to have been rearrested for another violent offense” than offenders with only drug-trafficking offenses.
The next step for the legislation is the Senate Judiciary Committee. Colas estimates that it will take six to eight months for this legislation to get through the committee. He notes that the act will be absorbed into a “broader fight” for criminal justice reform in Congress.
This post provides a clear and balanced review of data and the state of the debate over one proposed ACCA fix in the wake of Johnson. But I call the post only a "partial unpacking" of the post-Johnson landscape because it does not address whether and how federal ACCA charging practices have changed after Johnson and/or whether it might be especially sound to just give judges more sentencing discretion in response to an array of ACCA problems.
The reason Johnson in particular, and ACCA in general, is so consequential and the subject of so much litigation is because ACCA's intricate and vague rules about predicate offenses turn a regulatory crime (possessing a firearm as a felon) with normally only a 10-year maximum sentence into a mega-crime with a 15-year mandatory minimum sentence. Rather than dicker excessively over the particulars of the rules for qualifying predicates in future ACCA debates, it might make a lot more sentence to just raise the normal maximum to, say, 15 years and also lower the ACCA minimum to, say, 5 years. By so doing, persons with priors that might or might not qualify for ACCA treatment still could be sentenced under (advisory) guidelines in the 5-to-15-year range without a need to litigate all the particulars of all the priors. Just a thought for would-be staffers looking forward to "six to eight months" of ACCA debates.
Prior related posts:
- "Attorney General Sessions Delivers Remarks Calling for a Legislative Fix to the Armed Career Criminal Act"
- Senators Orrin Hatch and Tom Cotton proposing Johnson fix to expand reach of Armed Career Criminal Act
Thursday, September 06, 2018
"Nikolas Cruz’s birth mom had a violent, criminal past. Could it help keep him off Death Row?"
The title of this post is the title of this very lengthy Miami Herald article which gets started this way:
Nikolas Cruz had two mothers: his birth mom, who gave him life, an almond-shaped head and auburn hair — and his adoptive mom, who gave him all the advantages of an upscale, suburban upbringing.
His birth mother, Brenda Woodard, was sometimes homeless, and panhandled for money on a highway exit ramp. His adoptive mother, Lynda Cruz, stayed home to manage a 4,500-square-foot, five-bedroom house in the suburbs, with a two-car garage and a sprawling yard. A career criminal, Woodard’s 28 arrests include a 2010 charge for beating a companion with a tire iron; she also threatened to burn the friend’s house down. Lynda Cruz had a clean record.
Woodard was so gripped by addiction she was arrested buying crack cocaine while pregnant with Nikolas. Lynda Cruz was known to drink wine, though not excessively.
Conventional wisdom suggests that Nikolas Cruz should have taken after the woman who raised him from birth, rather than the one who shared only his DNA. But little of Cruz’s story is conventional. While, by most accounts, Lynda Cruz was thoughtful and disciplined, her adoptive son was violent and impulsive — characteristics he seems to share with the birth mother he never knew.
Now the history of his birth family — sealed by statute and never before reported — could become a factor in his desperate attempt to stay off Florida’s Death Row.
Many of the details of Cruz’s difficult childhood and stormy adolescence emerged in the months following his deadly Feb. 14 attack on Marjory Stoneman Douglas High School in Parkland that left 17 students and staff members dead: He was a poor student prone to sometimes violent outbursts. He had an unhealthy obsession with guns. He shot and tortured animals. But where Cruz came from, genetically, has remained a missing piece of the puzzle.
Though Nikolas was raised in comfort — Lynda Cruz apparently believed that indulging her son with video games and weapons would soften his moods — the shadow of his genetic heritage seemed to loom over his life.
Experts in criminal law say the Broward Public Defender’s Office will likely explore Cruz’s genetic makeup and childhood development in their effort to keep the 19-year-old from being executed. His birth mother could be called to testify during the sentencing phase of his trial on 17 charges of first-degree murder and 17 charges of attempted murder.
Prior related posts:
- Contemplating the capital prosecution of Parkland school shooter Nikolas Cruz
- Will Florida school shooting mass murderer thwart efforts to raise age for limit on application of the death penalty?
- In shadow of Parkland, a notable discussion with victim families about capital prosecutions in Florida
Tuesday, September 04, 2018
Federal district court finds Louisiana LWOP sentence for low-level recidivist unconstitutionally excessive under Eighth Amendment (and local DA will not appeal to Fifth Circuit)
A helpful reader made sure I did not miss this local press report, headlined "Judge orders release or resentencing of St. Tammany man serving life for burglary," discussing a notable ruling from the federal district court in New Orleans. Here are the basics:
When he went before a judge in 2010, Patrick Matthews was a 22-year-old father of two who had a criminal record but had never spent a day in prison. But to the office of former north shore District Attorney Walter Reed, he was a hardened criminal who deserved a life sentence as a habitual offender for the crime of simple burglary. Matthews received that sentence with no chance at parole in a state where “life means life.”
Eight years later, Reed is a convicted federal felon, though his case is on appeal. The Legislature has changed the law so that no one could receive a sentence like Matthews’ today, but Matthews himself, now 31, remains behind bars at a prison in St. Gabriel.
On Wednesday, however, U.S. District Judge Nannette Jolivette Brown said Matthews’ life sentence violates the U.S. Constitution’s ban on “cruel and unusual” punishment. She ordered him to be resentenced to a lesser term or released within 120 days.
Current 22nd Judicial District Attorney Warren Montgomery’s office is not appealing Brown’s decision, although prosecutors could still seek to keep him in prison for several years more. Attorney Justin Harrell said his client’s family is ecstatic. “At least there’ll be an end to it, as opposed to that indefinite life sentence,” Harrell said.
Although the federal court ruling hinged on the specific facts of Matthews’ case, it is in line with a larger shift in the past decade away from Louisiana’s strict mandatory minimum sentences. In 2013, the American Civil Liberties Union estimated that 429 people in Louisiana were serving sentences of life without possibility of parole for nonviolent offenses — more than in any other state. Criminal justice reform advocates like the ACLU singled out Matthews as an egregious example of the state’s penchant for sending people away for life for nonviolent offenses.
The Legislature changed the habitual offender law in 2017 to make it less strict. However, those changes did not affect sentences already in place. With his appeals in state court exhausted, Matthews had only the federal courts to ask for mercy.
Brown agreed to adopt the recommendation of Magistrate Judge Janis van Meerveld, who acknowledged that it was rare for the federal courts to weigh in on a state sentence. However, Meerveld said, Matthews presented an unusual case.... Meerveld said she had “no hesitation in finding that a sentence of life imprisonment without the possibility of parole for a youthful, drug-addicted offender guilty of nothing more than two clusters of minor, nonviolent property crimes crosses the line from merely harsh to grossly disproportionate.”
Prosecutors under both Reed's and Montgomery’s administrations consistently opposed Matthews’ appeals, but lately their stance has changed. In a short brief filed in July, Assistant District Attorney Matthew Caplan replied to a question from the judge as to whether the sentence was grossly disproportionate. “It appears that way,” he said.
As this press account reveals, US District Judge Nannette Jolivette Brown granted relief on "Matthews' excessive sentence claim" on the basis of the recommendation of US Magistrate Judge Janis van Meerveld. Judge van Meerveld wrote an extended opinion explaining her recommendation in Matthews v. Cain, No. 2:15-cv-00430-NJB (E.D. La. Aug. 13, 2018), and that opinion can be downloaded below (and merits a full read). Here are some key passages therein (emphasis in original):
Of course, the mere fact that a sentence is harsh does not mean that it is disproportionate. Nevertheless, the undersigned has no hesitation in finding that a sentence of life imprisonment without the possibility of parole for a youthful, drug-addicted offender guilty of nothing more than two clusters of minor, nonviolent property crimes crosses the line from merely harsh to grossly disproportionate. As one scholar has noted: “[T]here is no uglier disproportionality than a man, guilty of a minor crime, banished to a cage for the remainder of his life.” Craig S. Lerner, Who’s Really Sentenced to Life Without Parole?: Searching for the “Ugly Disproportionalities” in the American Criminal Justice System, 2015 Wis. L. Rev. 789, 793 (2015) (footnote omitted)....
[A]at the time Matthews was sentenced, Louisiana law punished a wide swath of fourth offenders identically, regardless of the nature of their criminal histories. Accordingly, a fourth offender with a history of nonviolent property crimes, such as Matthews, was treated no differently than a fourth offender with a history of violent crimes and/or serious sex offenses. However, the impropriety of equating such disparate offenders was so apparent that the state has now abandoned that practice. In fact, as Matthews noted and the respondent did not dispute, an individual with Matthews’ criminal history would not even be eligible for a life sentence as a habitual offender under current Louisiana law.
The undersigned therefore finds that an interjurisdictional comparative analysis likewise supports a conclusion that Matthews’ sentence is unconstitutionally excessive. It must be noted that this conclusion neither calls into question the general constitutionality of Louisiana’s habitual offender law nor impugns the state’s decision to employ a harsher recidivist sentencing structure than those employed by the vast majority of its sister states. Rather, it is simply a recognition that even among the minority of states that vigorously punish recidivism, a sentence of life imprisonment without parole for a young, drug-addicted, nonviolent, sporadic burglar who had never been sentenced to a single day in prison for his prior offenses is such an anomaly as to be unconstitutional.
Sunday, September 02, 2018
Did the Buffalo Bills cause the Oklahoma City bombing?
The quite silly question in the title of this post is prompted by this remarkable new Politico Magazine piece headlined "How Football Fed Timothy McVeigh’s Despair: The Oklahoma City bomber was once a promising young Gulf War veteran. His slide into isolation and extremism happened to dovetail with the fate of his beloved Buffalo Bills." For a host of reasons, I recommend the full Politico piece (which comes from a book by Sam Anderson), which provides context for this closing excerpt from the article:
Just four weeks after that disastrous Super Bowl loss [by the Bills in 1993], McVeigh found and latched onto the cause that would define the rest of his life. A group of citizens in Waco, Texas — a religious cult called the Branch Davidians — had refused to surrender its weapons to the federal government. A standoff ensued, and McVeigh became obsessed. He read and watched everything he could, then loaded his car with anti-government pamphlets and bumper stickers (“When guns are outlawed, I will become an outlaw”) and drove down to see the action firsthand.
He sold his paraphernalia to other militants and gave interviews to the news media in support of the persecuted. When, some weeks later, the Waco situation went terribly wrong — the FBI set fire to the compound, killing almost everyone inside — McVeigh watched the news footage and wept. That injustice became the core of his case against the United States government. Revenge became his life’s mission.
I am not saying that Timothy McVeigh bombed Oklahoma City in 1995 because the Buffalo Bills lost four Super Bowls in a row. (They made it back in 1994 and — incredibly — lost that one too, cementing their reputation as the greatest losers in NFL history.) Such a claim would be absurd. Human motives are incalculably complex. But that Buffalo heartbreak was one of the many shadows that fell across McVeigh’s life between his unstable childhood and his perpetration of mass murder in Oklahoma City.
The almost unbelievable failure of the Bills, and the civic pain it caused, amplified his native pain. After McVeigh returned from the Gulf War, his Bills fandom was one of the few positive social networks he was able to plug back into, one of the most powerful, stable, visceral communities to which he unquestionably belonged. Its failure was devastating, to him and to everyone else in the area. To this day, even well-adjusted Buffalonians walk around imagining alternate lives in which their team actually won four Super Bowls in a row, becoming arguably the greatest team in NFL history, putting the city on the map in a way it otherwise never could have dreamed of.
Or at least won one Super Bowl, securing a happy little foothold in history. Instead, that 1990s Bills team is remembered as a tragic joke. It’s easy to pretend that sports doesn’t matter in real life, but for many millions of people, it does. It matters profoundly, every day. After Super Bowl XXVII, Timothy McVeigh went looking for somewhere else to be, something else to do — something bigger, more meaningful, more real. Reality had failed him, in so many ways, so he went off to pursue his own fantasy of justice, very far from Buffalo.
Criminal justice fans know that, among other echoes, the Oklahoma City bombing played a key role in federal habeas reforms that still matter profoundly every day to just about everyone serving long prison terms. But beyond spotlighting one legal echo of the worst home-grown terror mass murder of modern history, I thought this article serves as an interesting and important reminder that the roots of evil and violent behavior are often quite varied and unpredictable.
Wednesday, August 29, 2018
Texas jury hands down 15-year prison term after convicting police officer of murder for shooting unarmed teen
As reported by CNN here under the headline "Ex-officer sentenced to 15 years in Texas teen's shooting death," a Texas jury that handed down a notable murder conviction yesterday followed up today with a notable sentencing determination. Here are some details:
A former Texas police officer was sentenced to 15 years in prison Wednesday for the shooting death of an unarmed black teen last year in the Dallas suburbs.
A jury convicted former Balch Springs Officer Roy Oliver, 38, of murder on Tuesday for killing 15-year-old Jordan Edwards. Jurors returned to court Wednesday for his sentencing, where prosecutors sought at least 60 years, while the defense argued for 20 years or less.
Dallas County District Attorney Faith Johnson called Oliver a "killer in blue" who violated his oath to protect citizens. Her colleague, Michael Snipes, made the reference to Mr. Hyde, the violent side of Dr. Jekyll in Robert Louis Stevenson's novella. Defense attorney Bob Gill argued that his client, who fired into a vehicle carrying Edwards had to decide quickly how best to protect his partner.
The rare guilty verdict in the trial of a police officer stunned relatives, prompting gasps and sobs in the courtroom. Most police-involved shooting deaths, such as Philando Castile in Minnesota and Alton Sterling in Louisiana, have ended in acquittals or no charges despite national protests condemning police brutality. "We don't want another parent to have to go through what this family has had to deal with," Jordan's family attorney, Daryl Washington, said on Tuesday. "This case is not just about Jordan. It's about Tamir Rice, it's about Walter Scott, it's about Alton Sterling, it's about every African-American... who have been killed and who have not gotten justice."...
Convictions such as Oliver's are still a rarity mostly because when an officer says the person flashed a gun or made a sudden move, jurors tend to side with them, said Kristen Clarke, president and executive director of the Lawyers' Committee for Civil Rights Under Law. "At the end of day, officers in their badge and uniform enjoy the benefit of the doubt," Clarke said last year....
Few police officers face trial in shooting deaths, and even fewer are convicted. In December, former South Carolina officer Michael Slager was sentenced to 20 years in federal prison in the 2015 shooting death of Walter Scott. Slager's 2016 state murder trial ended in a mistrial.
Tuesday, August 28, 2018
The title of this post is the title of this new paper authored by Priscilla Ocen now available via SSRN. Here is its abstract:
Incapacitation, the removal of dangerous people from society, is one of the most significant penal rationales in the United States. Mass incarceration emerged as one of the most striking applications of this theory, as policymakers shifted from rehabilitative efforts toward incapacitation in jails and prisons across the country . Women have been uniquely devastated by this shift toward incapacitation. Indeed, the United States is home to the largest and fastest growing women’s prison population in the world.
Of the women incarcerated in jails and prisons, nearly seventy percent were the primary caretakers of small children at the time of their arrest and approximately eighty percent are of reproductive age. Notwithstanding these alarming trends, the gendered dimensions of incapacitation have largely been underexplored in the scholarly literature. Rather, women’s incarceration has been theorized as an unintended consequence of the punitiveness directed toward Black men.
This Article aims to bridge this discursive gap by highlighting the specific ways in which incapacitation has been used as a means to regulate the bodies and reproductive capacities of marginalized women. The Article advances this claim in three ways. First, by mapping the historical function of women’s prisons as a mechanism to restore and regulate “fallen women” who deviated from traditional norms associated with femininity and motherhood. Second, by examining the ways in which contemporary women’s prisons similarly regulate women’s identities as mothers. Instead of attempting to rehabilitate women, however, contemporary women’s prisons incapacitate women who engage in behavior or possess characteristics that diverge from traditional maternal norms. Indeed, through what the Article terms the “incapacitation of motherhood,” women prisoners are alienated from their children, denied reproductive care, humiliated during pregnancy and postpartum recovery, and in some cases, sterilized.
Lastly, contesting these practices and the incapacitation of motherhood, this Article calls for the use of a robust legal framework, informed by the principles of reproductive justice that are more protective of the reproductive capacities of incarcerated women.
Sunday, August 26, 2018
"Trauma and Sentencing: The Case for Mitigating Penalty for Childhood Physical and Sexual Abuse"
The title of this post is the title of this new paper available via SSRN authored by Mirko Bagaric, Gabrielle Wolf and Peter Isham. Here is its abstract:
People who lack guidance when they are young have an increased risk of committing crimes. The nurturing that many people receive during their formative years can play a key role in the development of appropriate values and behavior. Yet there is a reluctance to acknowledge the diminished culpability of offenders who have lacked appropriate guidance during their childhood because it is feared that doing so might be perceived as justifying criminal behavior and hence leading to more crime. The Federal Sentencing Guidelines expressly state that lack of guidance as a youth should not be a mitigating sentencing consideration. Despite this, approximately half of all federal judges believe that it should reduce the harshness of the penalty that is imposed on offenders.
In this Article, we examine whether lack of guidance as a youth should serve to reduce the severity of criminal sanctions. In doing so, we also discuss the position in Australia where an offender’s neglected upbringing can mitigate his or her penalty. We conclude that a neglected youth should not of itself mitigate penalty because this would make sentencing law too obscure and uncertain. There is not even an approximate line that can be drawn to demarcate the boundaries between appropriate and inadequate guidance as a youth.
However, experiences that are commonly associated with being neglected during childhood and often profoundly set back the mental and/or emotional state of children, namely being subjected to physical or sexual abuse, are more concrete in nature and should be a mitigating factor in sentencing. Empirical evidence demonstrates that people who are subjected to such trauma in their childhood years have an increased risk of subsequently engaging in harmful behavior, such as criminal activity. Further, relatively clear criteria can be established to demarcate the scope and application of these experiences during childhood for sentencing purposes. Reforming the law to make childhood sexual and physical abuse a mitigating consideration would improve the doctrinal coherency of the law and may have the incidental benefit of reducing sentences for female offenders generally and for offenders from socio-economically deprived backgrounds, including African Americans. This reform could be implemented in a manner that does not compromise community safety, provided that it is complemented by targeted, effective rehabilitative measures.
August 26, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Race, Class, and Gender | Permalink | Comments (4)
Thursday, August 23, 2018
"Young Adults and Criminal Jurisdiction"
The title of this post is the title of this new paper by Kevin Lapp now available via SSRN. Here is its abstract:
As measured by developmental biology, cultural markers, and self-perception, adolescence is longer today than it has ever been in human history, with leading psychologists asserting that it lasts into the mid-twenties. This Article considers whether the extension of adolescence requires changing the allocation of criminal jurisdiction over young adults aged eighteen to twenty-five. It explores three possible responses: (1) keeping young adults within general jurisdiction criminal courts with greater accommodations, (2) expanding juvenile court jurisdiction beyond age seventeen, and (3) creating specialized Young Adult courts.
The Article argues that criminal court’s emphasis on punishment and incapacitation are ill-suited to the individualized interventions that best serve the public’s long-term interest in safety and best promote a successful transition to adulthood. Expanding juvenile court jurisdiction would make its rehabilitative approach available to young adult offenders who, like juveniles, are not yet fully-developed adults. But it would also mean the loss of important procedural rights and a paternalistic, inquisitorial, interventionist approach that is not appropriate for young adults.
Specialized courts dedicated to eighteen to twenty-five year-olds offer a developmentally-informed response at the front and back end of cases without unduly complicating the work of the juvenile court, avoid potential due process and rights problems, and communicate to these offenders that they are worthy of something other than punitive, assembly-line treatment as criminals. That said, creating young adult courts across the nation faces several challenges and carries potential drawbacks for those diverted to young adult court and for the remainder left behind in criminal court.
Tuesday, August 21, 2018
"Punishing Criminals for Their Conduct: A Return to Reason for the Armed Career Criminal Act"
The title of this post is the title of this timely new paper now available via SSRN authored by Sheldon Evans. Here is the abstract:
For over twenty-five years, the Armed Career Criminal Act has produced inconsistent results and has taxed judicial economy perhaps more than any other federal sentencing mechanism. This recidivist sentencing enhancement is meant to punish habitual criminals based on their numerous past crimes, but the Supreme Court’s application of the Act too often allows habitual criminals to escape the intended enhancement on a legal technicality. This comes as a result of the Court’s categorical approach, which punishes habitual criminal offenders based on the statutory elements of their past crimes rather than the conduct of their past crimes.
In an effort to find solutions for this ailing doctrine, this Article analyzes how states have structured their own recidivist sentencing laws to avoid the same problems wreaking havoc in the federal courts. Of all the state approaches, a conduct-based approach is most promising because of its practical application and ideological consistency. Moreover, the many roadblocks articulated by the Court over the years that have supposedly prevented it from taking a conduct-based approach are overcome after considering the constitutional and practical sentencing landscape.
Monday, August 20, 2018
Texas jury convicts doctor of raping incapacitated patient ... then sentences him to probation for 10 years
It is sometimes assumed that having juries impose sentences will produce harsher outcomes, but a recent rape case from Texas provides an example of a jury imposing only a non-prison sentence after returning a guilty verdict in a rape case. This Houston Chronicle story, headlined "Many surprised at sentence for ex-Baylor doctor who raped a Houston hospital patient." Here are some of the details:
When a former Houston doctor was sentenced to probation Friday for raping an incapacitated patient at a county hospital, the punishment surprised defense attorneys, disappointed law enforcement, elicited concern from a rape victims advocacy group and sparked outrage on social media.
The doctor, who has been stripped of his license, admitted during the trial that he had sexual contact with the woman during the night shift at Ben Taub Hospital in 2013, but told jurors it was consensual. Although he was not assigned to her case, he slipped into her room anyway after he noticed her breast implants....
The jury five women and seven men sentenced Dr. Shafeeq Sheikh, a former Baylor College of Medicine resident, to 10 years on probation for raping the patient while she was tethered to machines and receiving treatment for an acute asthma attack.
The jurors found Sheikh guilty Thursday after deliberating for 14 hours over two days. The conviction means Sheikh, 46, must be a registered for the rest of his life as a sex offender. Jurors recommended the 10-year probated sentence for the doctor and suspension of a $10,000 fine after deliberations on Friday, recommendations that visiting Senior District Judge Terry L. Flenniken was required by law to follow.
During argument for the sentencing phase of the trial Friday, Assistant District Attorney Lauren Reeder asked jurors to keep in mind that Sheikh exploited his access to harm a vulnerable person. “He sought her out. He chose her to prey on,” Reeder said, noting that Sheikh checked the woman’s chart and knew exactly what medicines she had been prescribed. “You know he’s the type of man who would go in multiple times, testing the waters, seeing how far he could go and get back to his normal business after that.”...
Sheikh’s defense lawyer, Stanley Schneider, asked the jury to have mercy on a man whose wife and children had suffered greatly from his actions and who had been punishing himself for five years for this one shameful, erratic act. He said he hoped they would sentence Sheikh, who has no prior felonies, to probation. “The dreams of a man, the childhood dream to become a doctor, were shattered by his conduct. He destroyed his own dreams,” Schneider said. “What he has done to himself and his family is punishment. They are serving his sentence with him. His children are serving his sentence with him.”...
Prosecutors respect the process that rendered the result, said Dane Schiller, a spokesman for District Attorney Kim Ogg. “After being presented all the evidence, the jury convicted this man of rape and decided that he should be sentenced to 10 years of probation,” Schiller said. “The jury voted on behalf of the community to determine his sentence, and although prosecutors sought prison time, we respect this process, and the jury’s decision, which carries with it a lifetime of registering as a sex offender.”...
Both the victim, who is now 32, and the former doctor took the stand during the eight-day trial, providing contradictory accounts of what happened the night of Nov. 2, 2013. The victim said a doctor came to her bedside in the dark and began touching her breasts during a chest exam. She said she was weak, sore and confused, and tried to summon a nurse with the call button. The man returned two more times, and raped her without using a condom.
Sheikh said the patient took his hand and placed it on her breasts. He was intrigued by her breast implants and returned to her room again. At this point, he testified, she began touching his genitals and demonstrated with her body language that she wanted to have sex with him. He said he knew it was a breach of his marriage vows and the Hippocratic oath, but he succumbed to his impulse. He told jurors he understood that it was consensual sex....
One factor that could have impacted what some saw as a lenient sentence was the testimony from his wife, brother and family friends, who spoke about his vital role as the father of four children. Attorney Paul Schiffer, a former prosecutor who has devoted more than four decades to defending people charged with sex offenses, said he thought Sheikh was fortunate. “Defendants who take the stand and deny they’re guilty statistically are in a worse position to get probation,” Schiffer said. “But various factors, including their history while on bond and the impact incarceration could have on their own children can be a significant factor.”
He and Kiernan, who also defends people accused of rape, said it also may have been the case that jurors had residual doubt about his culpability. Kiernan suggested there was another important factor jurors may have mulled over. “The real question is whether the best interest of the defendant and society are served by sentencing him to the penitentiary,” he said.
In trying to understand this outcome, I wonder if the jury might also have been influenced by the fact that the defendant here is subject to a lifetime on the sex offender registry. (I assume Texas law allows the jury to be informed of this fact; judges certainly know this fact when deciding on a sentence in a serious sex offense case.)
Exploring what neuroscience may mean for criminal justice
Last week brought these two notable pieces in response to some recent research on psychology, neuroscience and the law. Here are links and brief excerpts:
From Andrew Calderson at The Marshall Project, "Dangerous Brain: Can neuroscience predict how likely someone is to commit another crime?"
Over the past two decades, brain scans and other neuroscientific evidence have become commonplace in courtrooms. So much so that a defendant can file an “ineffective assistance of counsel” claim if his or her lawyer fails to introduce relevant brain tests. And defense lawyers ordinarily submit brain imaging to bolster claims of their clients’ incompetency or insanity.
Still some legal scholars and attorneys decry the growing presence of neuroscience in courtrooms, calling it a “double-edged sword” that either unduly exonerates defendants or marks them as irredeemable future dangers. “But that’s not right,” said Deborah Denno, a professor and director of the Neuroscience and Law Center at Fordham University Law School, who conducted an analysis of every criminal case that used neuroscientific evidence from 1992 to 2012. Her analysis showed that brain evidence is typically introduced to aid fact-finding with more “complete, reliable, and precise information.” She also showed that it is rarely used to support arguments of future dangerousness.
To date, neuroprediction has not been admitted into the courtroom or parole hearings. Some scholars, like Thomas Nadelhoffer, a fellow at the Kenan Institute for Ethics at Duke University, who popularized the term neuroprediction, argue that the science is reliable enough to integrate with other risk assessments.
From Dane Stallone at The Crime Report, "How Neuroscience is Reforming Criminal Justice"
In the courtroom, testimony or evidence about abnormalities or damage to a defendant’s brain has been used to assess the level of responsibility for criminal behavior. But new research into how the brain works is contributing to innovative strategies for reducing recidivism and developing alternatives to incarceration.
The Mind Research Network, a non-profit based in Albuquerque, N.M., has been on the forefront of discovering how the brains of psychopaths and violent offenders differ from the average person’s. Psychopaths make up a substantial part of prison population and are 20 to 25 times more likely to be in prison than non-psychopaths. Dr. Kent Kiehl, a lead researcher for the network, says the research can help target appropriate treatment for example, for youths who have demonstrated violent behavioral traits. “This will improve our ability to predict which kids are high-risk, and how to individually tailor treatment to help kids change,” he told The Crime Report.
Wednesday, August 15, 2018
Assailing the new expanded mandatory minimum for "career offenders" being pushed by AG Jeff Sessions
As noted in prior posts here and here, earlier this month Attorney General Jeff Sessions gave a big speech advocating for reform to the Armed Career Criminal Act in part as a response to the Supreme Court's 2015 ruling in Johnson finding a part of ACCA vague. Writing at The American Prospect, Manuel Madrid has this new piece unpacking the particulars of this effort. The full headline and subheadline summarizes the themes of the piece: "Jeff Sessions and the Conservative Nostalgia for Harsh Sentencing: A new Republican bill would slap nonviolent criminals with 15-year mandatory minimum sentences. White-collar crimes, property crimes, and drug-related offenses would all count toward being considered a 'career armed criminal'.” Here are some excerpts:
Attorney General Jeff Sessions’s full-court press for more tough-on-crime policies has found a home in Congress. Speaking before a crowd of law enforcement officials and prosecutors ... in Little Rock, Arkansas, Sessions called for legislation to reinstate an aggressive Reagan-era sentencing law that targets repeat offenders....
About an hour before the speech, Republican Senators Orrin Hatch of Utah, Tom Cotton of Arkansas, and Lindsey Graham of South Carolina offered a glimpse into what such a fix would look like with their new bill, the Restoring the Armed Career Criminal Act of 2018. The proposed legislation revises the language in the original act and broadens its scope to avoid possible legal challenges, while extending hefty mandatory minimum prison sentences to violent and nonviolent criminals alike....
While the original act might have been defended on the grounds that it at least attempted to hone in on some violent criminals, the Cotton-Hatch-Graham redux abandons all pretenses of even trying. Under the new bill, nonviolent crimes such as identity theft, fraud, and money laundering could earn a person the label of armed career criminal. And the list goes on: Property crimes like burglary and theft and a score of drug-related crimes would all be on the table.
Before the 2015 Supreme Court decision, about 600 offenders were charged each year under the Armed Career Criminal Act. That number dropped to 265 last year. The change would likely open the floodgates to more mandatory minimum prison sentences, which already disproportionately affect minorities. In 2017, more than half of felons charged with unlawful possession of a firearm were black and almost 20 percent were Hispanic. Only 4.4 percent were charged as armed career criminals....
During his time in the Senate, Sessions, along with Senator Cotton, persuaded other Republicans to join them in torpedoing a bipartisan sentencing reform bill in 2016 which would have shortened existing mandatory minimums and narrowed the scope of drug convictions that triggered them....
The drastic expansion of the Armed Career Criminal Act proposed in the Cotton-Hatch-Graham bill would accelerate the federal government’s backsliding on criminal justice, achieving little more than earning the praise from a minority of conservative politicians nostalgic for the hardline policies of decades past.
Prior related posts:
- "Attorney General Sessions Delivers Remarks Calling for a Legislative Fix to the Armed Career Criminal Act"
- Senators Orrin Hatch and Tom Cotton proposing Johnson fix to expand reach of Armed Career Criminal Act
"Nowhere to Go: Homelessness among formerly incarcerated people"
The title of this post is the title of this notable new Prison Policy Initiative report which gets started this way:
It’s hard to imagine building a successful life without a place to call home, but this basic necessity is often out of reach for formerly incarcerated people. Barriers to employment, combined with explicit discrimination, have created a little-discussed housing crisis.
In this report, we provide the first estimate of homelessness among the 5 million formerly incarcerated people living in the United States, finding that formerly incarcerated people are almost 10 times more likely to be homeless than the general public. We break down this data by race, gender, age and other demographics; we also show how many formerly incarcerated people are forced to live in places like hotels or motels, just one step from homelessness itself.
Monday, August 13, 2018
"Algorithmic Risk Assessments and the Double-Edged Sword of Youth"
The title of this post is the title of this new paper authored by Megan Stevenson and Christopher Slobogin now available via SSRN. Here is the abstract:
At sentencing, youth can be considered both a mitigating circumstance because of its association with diminished culpability and an aggravating circumstance because of its association with crime-risk. In theory, judges and parole boards can recognize this double-edged sword phenomenon and balance the mitigating and aggravating effects of youth. But when sentencing authorities rely on algorithmic risk assessments, a practice that is becoming increasingly common, this balancing process may never take place.
Algorithmic risk assessments often place heavy weights on age in a manner that is not fully transparent -- or, in the case of proprietary “black-box” algorithms, not transparent at all. For instance, our analysis of one of the leading black-box tools, the COMPAS Violent Recidivism Risk Score, shows that roughly 60% of the risk score it produces is attributable to age. We argue that this type of fact must be disclosed to sentencing authorities in an easily-interpretable manner so that they understand the role an offender’s age plays in the risk calculation. Failing to reveal that a stigmatic label such as “high risk of violent crime” is due primarily to a defendant’s young age could lead to improper condemnation of a youthful offender, especially given the close association between risk labels and perceptions of character and moral blameworthiness.
Spotlighting challenges surrounding an Eighth Amendment jurisprudence defining adulthood at 18
Beth Schwartzapfel has this effective new Marshall Project piece on the Supreme Court's recent juvenile sentencing jurisprudence under the headline "The Right Age to Die?: For some, science is outpacing the High Court on juveniles and the death penalty." Here are excerpts:
When 15-year-old Luis Cruz joined the Latin Kings in 1991, he was a child by almost any measure: he couldn’t legally drive, drop out of school, or buy a beer. But was he still a child a few years later when — just months after he turned 18 — he murdered two people on the orders of gang leaders?
Earlier this year, a federal judge in Connecticut said yes. The judge decided that a 2012 Supreme Court ruling that forbade mandatory sentences of life without parole for juveniles should apply to 18-year-olds like Cruz, and granted his request to be resentenced. It’s one of a small but growing number of cases in which courts are grappling with what to do with young adults who commit the most serious crimes....
When it comes to the most extreme punishments, the Supreme Court has ruled so far that 18 is a “bright line.” If you’re under 18 at the time of your crime, you can’t be executed. You also can’t be sentenced to life without parole without a hearing to consider your maturity level. But the high court has never extended those protections past age 18.
“The qualities that distinguish juveniles from adults do not disappear when an individual turns 18,” Justice Anthony Kennedy wrote in Roper v. Simmons, the first of four modern cases in which the court has laid out its thinking on these issues. “However, a line must be drawn.” The high court has not revisited that line since Roper was decided in 2005. But state and lower federal courts have begun to consider whether people between the ages of 18 and 21 — the period psychologists now call “late adolescence” — should have the same kind of special consideration that younger teenagers get before they face sentencing for murder.
The Roper case was decided at a time when researchers had recently begun imaging adolescents’ brains. Using functional magnetic resonance imaging, or fMRI — like the technology doctors use to look inside the brain for tumors or strokes — researchers were able to observe how young people’s brains responded to various situations.... But it wasn’t until recently that scientists began to research what happens to the brain in late adolescence and young adulthood, says Laurence Steinberg, a leading researcher into adolescent development who helped write the American Psychological Association’s briefs before the Supreme Court and who has testified in many of the more recent lower court cases. And when they did, they found that those same youthful qualities seem to persist until the early- to mid-20s.
In one recent study, Steinberg and his colleagues gave a series of tests to more than 5,000 children and young adults across 11 countries. They found that the impulse to chase thrills and look for immediate gratification peaks around age 19 and declines into the 20s. Steinberg describes this system of the brain like the gas pedal in a car. The “brake” system — the ability to plan ahead and consider consequences — takes longer to catch up: it isn’t generally fully mature until the 20s. Steinberg says if he had to draw a new bright line, he would draw it at 21.
“Knowing what we know now, one could’ve made the very same arguments about 18-, 19- and 20-year-olds that were made about 16- and 17-year-olds in Roper,” he testified in a recent Kentucky case.In that Kentucky case, a judge found the state’s death penalty statute unconstitutional because it allows people who were under 21 at the time of their crime to be executed. “If the science in 2005 mandated the ruling in Roper, the science in 2017 mandates this ruling,” he wrote. A Pennsylvania court last year considered an appeal from a woman who was sentenced to mandatory life without parole after serving as a lookout, at 18, during a botched robbery that ended in murder. The court rejected the appeal on technical grounds, but called 18 an “arbitrary legal age of maturity” and said an “honest reading” of the Supreme Court’s ruling would require courts to reconsider it....
Justice Kennedy, who was often the Supreme Court’s swing vote in close cases and who voted in favor of all four of the court’s major rulings extending these protections to juveniles under 18, retired this summer. The court is widely expected to tack right when President Donald Trump’s pick assumes Kennedy’s seat. In light of that, opponents of juvenile life without parole are aiming to keep these cases in lower courts for now, said Marsha Levick of the Juvenile Law Center, which has submitted briefs in support of many of these defendants. They’re not likely to get a friendly hearing on the question of whether 18-, 19- and 20-year-olds are less culpable than adults from the newly composed high court, Levick said.
In the meantime, Steinberg, the psychologist, says he has been hired by the attorneys for Nikolas Cruz, who faces the death penalty as the accused gunman in February’s Parkland school shooting in Florida. Cruz was 19 when he allegedly killed 17 people at Marjory Stoneman Douglas High School. Steinberg “struggled about this a lot,” he said. But in the end “it’s really hard logically to say, ‘People your age are too immature to be sentenced to death, unless you do something really, really bad.’”
Sunday, August 05, 2018
I'll be back tomorrow blogging about the war on kids, but I wanted to share this NBC news story about prison nurseries.
According to the piece, there are eight prison nurseries in the United States, and as the number of women in prison has exploded in recent years, their existence raises several interesting questions. Is separation from one's infant a just part of a sentence? Does that sentence inflict more harm on the child than the mother? Is it safe/desirable/cost-effective to allow mothers and infants to remain in prison together? More here:
Bedford Hills has the nation’s longest-running prison nursery. Opened in 1901, it has allowed hundreds of women who have started their sentences pregnant to bond with their babies while behind bars — something advocates say is best for babies and lowers the mothers’ recidivism rate, but some critics argue violates the children’s constitutional rights using taxpayer money, while placing a burden on prison staff by requiring them to double as day care workers.
Bedford Hills is one of eight prison nurseries in the United States. The number of such programs has fluctuated as funding and sentiment toward them has risen and fallen, but now, more than ever, their effectiveness is under scrutiny as the number of women behind bars has skyrocketed.
There are nearly 214,000 women incarcerated in the U.S. — an increase of more than 700 percent since 1980, according to nonprofit The Sentencing Project. There is no official count of how many of these women give birth while imprisoned.
In most prisons, when a woman gives birth, her baby is taken away within 48 to 72 hours and sent to either a relative or foster care. Prison nursery supporters say that keeping newborns with their moms, even behind bars — while not a perfect solution — is better than any alternative.
Thursday, August 02, 2018
Senators Orrin Hatch and Tom Cotton proposing Johnson fix to expand reach of Armed Career Criminal Act
As detailed in this press release, "Senators Orrin Hatch (R-UT) and Tom Cotton (R-AR) introduced The Restoring the Armed Career Criminal Act of 2018, legislation that will protect Americans from the most violent, repeat offenders." Here is part of the release:
“True criminal justice reform includes giving prosecutors the tools they need to seek enhanced penalties against the worst repeat offenders, said Hatch. “Prosecutors lost one of those tools three years ago when the Supreme Court ruled that a provision of the Armed Career Criminal Act was unconstitutionally vague. Criminals released early from prison as a result of that decision have gone on to commit heinous crimes, including the murder of three innocent Utahns. Our bill will bring much-needed clarity to the law while empowering prosecutors to pursue justice.”...
The National Association of Police Organizations offered their full support for this bill. In addition, the National Sheriffs’ Association has written a letter of support with over 3,000 elected sheriffs nationwide. Click here to read the full letter....
Originally passed by a unanimous vote in the House and Senate in 1984, the Armed Career Criminal Act requires a minimum 15-year prison sentence for felons convicted of unlawful possession of a firearm who have three prior state or federal convictions for violent felonies or serious drug offenses, which must have been committed on three different occasions. These are the worst-of-the worst, career criminals.
The ACCA defines serious drug offenses as those punishable by imprisonment for 10 years or more. It defines violent felonies [in three ways, one of which was declared by the Supreme Court in Johnson] unconstitutionally vague and thus effectively void....
The Restoring the Armed Career Criminal Act of 2018 would do away with the concepts of “violent felony” and “serious drug offense” and replace them with a single category of “serious felony.” A serious felony would be any crime punishable by 10 years or more. By defining “serious felony” solely based on the potential term of imprisonment, the bill would address the vagueness issue and remove any discretion or doubt about which offenses qualify.
The bill would give federal prosecutors an additional tool to go after the most dangerous, career criminals and would not apply to low-level offenders. Specifically, the ACCA would still apply only in a case where a felon who possesses a firearm in violation of 18 U.S.C. § 922(g) has previously been convicted three times of serious felonies, which must have been committed on different occasions.
I noted in this post that the Armed Career Criminal Act is long overdue for a fix, but the solution presented here strikes me as problematic because it expands the reach of a severe mandatory minimum and still has ACCA's reach turn on prior offense definitions. Statutory mandatory minimums are always clunky, and all that may be needed to effectively achieve ACCA's goals would be to raise the applicable maximum terms for illegal gun possession by those with three or more felony convictions. Judges could and would then use the US Sentencing Commission's guidelines, rather than the fortuity of some prior offense definitions, to determine who are truly the 'worst-of-the worst, career criminals" that should be imprisoned for decades.
Prior related post:
Wednesday, August 01, 2018
"Attorney General Sessions Delivers Remarks Calling for a Legislative Fix to the Armed Career Criminal Act"
The title of this post is the headline of this press release from the US Department of Justice today, and here are some of the comments that follow that focus on ACCA:
[B]ecause of a 2015 Supreme Court decision holding that the definition of violent felony was too vague — we are missing one of the most important law enforcement tools we had. The Johnson case is quite significant.
Regardless of the merits of the Court’s decision, the consequences have been devastating for Americans across the country.
This court decision led to the release of a man from right here in Little Rock. Eight months after he was released from prison, he was arrested for aggravated assault and domestic battery. A year after that he was arrested for kidnapping, rape, aggravated assault, battery, and terroristic threats. He is accused of raping a 62-year old woman and an autistic homeless man.
This court ruling also led to the release of a man who allegedly punched a pregnant woman at a nightclub in Forrest City. When police intervened, he allegedly assaulted three of them, cutting one of them on the forehead.
A man from Pine Bluff got his 15 year sentence cut in half. A year later, he got into an argument with a co-worker. According to the allegations against him, the co-worker turned around to walk away when the defendant sucker-punched him, broke his nose and eye sockets, chipped a tooth and busted his lip.
Two of these criminals I’ve talked about are now back in prison. They were let out of prison, reoffended, and now they’re back in prison.
But the consequences are not limited to Arkansas. This is a nationwide problem and it’s a cause for deep concern. In Utah, a career criminal released by this decision tortured and murdered two teenagers and then threw their bodies down a mineshaft. A released career criminal in California allegedly murdered his father, carjacked a vehicle and killed the driver. In Oregon, a released career criminal held a Subway sandwich shop hostage and then shot a police officer just 18 days after he was released.
Sadly, I could go on and on. So why did this happen? The Supreme Court struck down part of a law called the Armed Career Criminal Act. It had been on the books for 30 years and applied thousands of times.
This is the law that requires a minimum 15- year sentence for felons caught with a firearm after their third violent felony or serious drug trafficking conviction.
These are not the mythical “low-level, nonviolent drug offenders,” who we are always told are being excessively imprisoned. These are criminals who have already committed multiple serious offenses and then were caught with a gun.
This is no little matter. In 2016, the U.S. Sentencing Commission found that nearly seven out of ten career criminals reoffended after being released. Federal firearms offenders were found to be the most likely to be rearrested of any category. These criminals are both. They are career criminals and firearms offenders. I was a United States Attorney before the Armed Career Criminal Act — and I was United States Attorney afterward. I’ve seen its importance firsthand as we worked to reduce crime in America.
Nationwide, the Supreme Court’s decision has resulted in more than 1,400 violent career criminals back onto our streets — including 18 here in Arkansas. Nine of these Arkansas criminals have already been arrested again.
Six-hundred of those 1,400 criminals have been arrested again. It’s only been three years since the Court decision, but 42 percent have already reoffended.
On average, these 600 criminals have been arrested or reoffended three times in the last three years. A majority of those who have been out of prison for just two years have been arrested again. Releasing repeat offenders has consequences. Every crime committed by a recidivist released by this court case would not have happened. Every one of their victims would not have been victimized.
We must fix the law so violent career criminals are not let out of jail early. Their recidivism rate is staggering indeed, but let’s remember: this is still likely an underrepresentation of their illegal activity. Any law officer in this room will tell you that criminals rarely get caught on their first offense. We can only imagine how many crimes they have really committed and how many innocent people they have victimized.
Releasing hardened criminals into our communities before they serve their minimum term is not fair to crime victims. And it is not fair to law enforcement. You shouldn’t have to go into danger time and again to arrest the same people.
Congress and our legislatures need to help us and consider legislation that protects the public. We need Congress to fix the law so that we can keep violent career criminals off of our streets. That shouldn’t be controversial.
Fortunately, some Members of Congress are helping. My good friend Senator Cotton understands this issue. He is working on legislation that is intended to fix this problem for good — and I want to thank him for his outstanding leadership on criminal justice issues.
We should look for effective and proven ways to reduce recidivism, but we must also recognize that simply reducing sentences without reducing recidivism unfairly creates more victims.
I agree with Attorney General Sessions that we need a Johnson fix and more. Reform to the Armed Career Criminal Act is long overdue (Justices Scalia and Alito have bemoaning ACCA problems and urged Congress to act for many, many years before Johnson). Beyond just the vagueness problem Johnson addressed, there are deeper problems with the entire structure of the Armed Career Criminal Act, particularly its reliance on a severe mandatory minimum prison term (of 15 years) for the mere act of possessing a firearm or ammunition. Consequently, I do not think a mere Johnson fix to ACCA will be a fully sound or effective response to the genuine concerns flagged by AG Sessions.
In a future post, I hope to be able to discuss the specifics of Senator Tom Cotton's approach to fixing ACCA. For now, I will just suggest it will be interesting to see if anyone in Congress will be willing to try to roll an ACCA fix into existing criminal justice reform proposals that are now seemingly languishing on the Hill.
August 1, 2018 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Offender Characteristics, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (5)
Tuesday, July 31, 2018
After guilty plea, frat member gets 3 months of house arrest and 27 months of probation for role in hazing death of Penn State pledge
As reported in this AP piece, headlined "Penn State fraternity member gets house arrest in pledge death case," a high-profile college campus tragedy led to a notable state sentencing today in the heart of Pennsylvania. Here are the details:
A Penn State fraternity member who plied a pledge with vodka the night he was fatally injured in a series of falls avoided jail time Tuesday when a judge sentenced him to three months of house arrest.
Ryan Burke, who had pleaded guilty to four counts of hazing and five alcohol violations, apologized to the parents of Tim Piazza, who died in February 2017 after a night of drinking and hazing in the Beta Theta Pi house. Burke said he was “truly sorry” and accepted responsibility for his role in the events that led to Piazza's death from severe head and abdominal injuries he suffered the night he accepted a pledge bid.
Centre County Judge Brian Marshall also gave Burke 27 months of probation, fined him more than $3,000 and ordered 100 hours of community service. “The court was shocked by what happened that night,” Marshall said, adding he was “mindful that there were many involved.”
Burke's defense attorney, Philip Masorti, said afterward he thought the sentence was fair. “This was an accident that nobody wanted to happen,” he told Marshall. “It led to a tragic death.”
Burke, 21, of Scranton, is the only one so far to plead guilty in the case, in which more than two dozen members of the now-closed fraternity face charges. A hearing for some others is planned for next month, and trial for at least some will be in February.
Prosecutor Brian Zarallo with the attorney general's office said Burke took a leading role in what occurred, as he led the fraternity's effort to recruit new members and physically led them into a drinking station “gauntlet” that began a night of heavy drinking that was captured on the building's elaborate video security system. Piazza “didn't know what was waiting for him,” that night, Zarallo said. “The defendant did. The defendant knew exactly what was waiting for him.”
He played a videotape in which a ball cap-wearing Burke could be identified plying the wannabe members with a bottle of 80-proof vodka, and said Burke seemed nonchalant about Piazza's medical condition after he endured a bad fall down the basement steps. Burke “can't be bothered” and left Piazza for others to deal with him, Zarallo said, describing his actions as callous.
“This is a big joke to these people,” Zarallo said, telling the judge that five pledges vomited that night and one other injured an ankle.
Piazza's parents, who have become anti-hazing advocates, recounted the horror of being summoned to the hospital to find their son with a range of visible and very severe injuries, not far from the death that would soon follow.... Jim Piazza credited Burke for pleading guilty, but noted that occurred after a judge ruled there was sufficient evidence to send the case to county court for trial....
When Burke was first charged in November, he also was accused of involuntary manslaughter, aggravated assault, simple assault and reckless endangerment, but the attorney general's office dropped the most serious charges in April and a district judge subsequently dismissed some other counts.
This other local article reports that prosecutors were asking for three months of imprisonment. I suspect that what prosecutors sought for a defendant who played a leading role, as well as the actual sentencing imposed, might have a big impact on the various charges still facing the other two dozen members of the fraternity. It is likely that the sentence given to Burke will end up impacting future plea negotiations as well as any sentences that might be imposed on any defendants convicted after a trial. In tragic incidents like this one in which is it so hard to know just what kind of sentence is "right" in response to unintended harms, I sense it becomes easier for lawyers and judges to gravitate toward sentences already imposed in related cases.
Friday, July 27, 2018
At resentencing, former New York Assembly speaker gets (only?) seven years in federal prison for corruption
As reported here by the New York Post, "Sheldon Silver, the disgraced ex-speaker of the New York state Assembly, was sentenced to seven years in prison — less than the 12 years he was sentenced to previously." Here is the context:
The judge cited the 74-year-old Silver’s advanced age and the substantial monetary penalties she plans to levy, including a $1.75 million fine, in the lower sentence.
Silver was convicted in May — for a second time — of selling his office for $4 million in kickbacks, plus $1 million in profits, tied to two schemes. Before his arrest in 2015, Silver was one of the most powerful men in Albany — along with Gov. Andrew Cuomo and former Senate Majority Leader Dean Skelos.
At his 2016 sentencing, Judge Valerie Caproni — who sentenced him again this time around — ordered him to serve 12 years in prison and to forfeit nearly $5.2 in ill-gotten gains and another $1.75 million in fines. But Silver never served a day in prison because his 2015 conviction was overturned on appeal amid questions about the validity of the jury instructions, which were raised after the US Supreme Court narrowed the definition of bribery.
Silver’s lawyer Michael Feldberg has said he plans to appeal the second verdict as well, saying the feds once again failed to prove that Silver promised anything in return for the lucrative referrals he received....
During Friday’s sentencing, Caproni blasted Albany’s culture of corruption, noting that recent months have all “touched, directly and indirectly, the ‘three men in a room'” — the derisive term used to describe the governor and top leaders of the Senate and Assembly. “This has to stop,” she said. “New York state has to get its act together and do something institutionally to stop corruption.”
Still, she commended Silver for apologizing for his conduct this time around, which he did not do in 2016. “That was a wise decision on Mr. Silver’s part,” she said. “Mr. Silver’s conduct clearly caused discernible harm.” She also remarked on signs of wear and tear. “I feel like visually he’s aged more than the three years that have gone by chronologically,” she said.
Silver also spoke at the sentencing, saying that he is “extremely, extremely remorseful” for having “brought out a great deal of distrust in NY’s government.”
As noted in prior posts linked below, the original 12-year sentence given to Silver was still way below a calculated guideline range of 20+ years. And this time around, the feds were asking for a sentence "substantially in excess" of 10 years. So, Silver probably should feel a bit lucky he did not get an even longer term than seven years. But even with some likely time off for good behavior, Silver now cannot be making any real retirement plans until 2025.
Prior related posts:
- Another prominent elderly corrupt politician presenting dynamic federal sentencing issues
- Former New York Assembly speaker gets lengthy (way-below guideline) federal sentence for corruption
- "Can a criminal be sentenced to run a 'help desk'?"
Tuesday, July 24, 2018
A friendly brief on the intersection of Eighth Amendment juvenile sentencing jurisprudence and the federal sentencing guidelines
I was pleased to have as one project this summer helping to draft an amicus brief in support of a Ninth Circuit en banc petition in US v. Riley Briones. In a split decision handed down in May, a panel of the Ninth Circuit affirmed the district court adoption of the the federal sentencing guidelines as the key factor in the course imposing a life without parole federal sentence on a juvenile offender. The panel opinion is available at this link, with Judge Johnnie Rawlinson authoring the majority opinion (joined by district judge David Ezra) and Judge Diarmuid O’Scannlain authoring the dissent.
The amicus brief which can be downloaded below argues, in short form, that “It is unreasonable — and unconstitutional — for a court to routinely apply the Sentencing Guidelines when a defendant is subject to a Guideline sentencing range of life without parole for a crime committed as a juvenile.” In longer form, here is the start of the brief's "Summary of Argument":
The Supreme Court’s Eighth Amendment jurisprudence has long stressed that youth must matter in sentencing. Nearly four decades ago, in Eddings v. Oklahoma, 455 U.S. 104 (1982), the Supreme Court, explaining why an offender’s age and maturity is critical to any assessment of just punishment, stressed that “youth is more than a chronological fact” and that “minors often lack the experience, perspective, and judgment expected of adults.” Id. at 115–16. More recently, in a line of cases beginning with Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth Amendment forbids execution of juvenile offenders), and extending now through Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (holding that the Eighth Amendment forbids sentencing a juvenile offender to life without parole unless his crime reflects irreparable corruption), the Court has developed substantive and procedural rules to operationalize the Eighth Amendment mandate that “children are constitutionally different from adults for purposes of sentencing.” Id. at 733 (quoting Miller v. Alabama, 567 U.S. 460, 471 (2012)); accord Graham v. Florida, 560 U.S. 48, 68 (2010). This constitutional principle flows from the reality that children, compared to adults, are less mature, more susceptible to negative influences, and more capable of reform — and so any penological justifications for the harshest adult punishments “collapse in light of ‘the distinctive attributes of youth.’” Montgomery, 136 S. Ct. at 733–34 (quoting Miller, 567 U.S. at 472). Thus, both sound sentencing policy and settled constitutional doctrine forbid a sentencing court from treating a juvenile as though he were an adult.
Yet that is precisely what the U.S. Sentencing Guidelines encourage sentencing courts to do. Problematically, the Guidelines have no provisions that readily permit consideration of “the distinctive attributes of youth.” The Guidelines — designed with adult offenders in mind — give no attention to any youth-related consideration in standard offense-level calculations, and they discourage consideration of age “in determining whether a departure is warranted” except in “unusual” cases. U.S.S.G. § 5H1.1. Given that the Guidelines impart to sentencing courts a strong “anchoring” effect — as the Supreme Court has recognized, see Peugh v. United States, 569 U.S. 530, 541–42 (2013) — and that in a majority of cases judges do not deviate from the Guidelines range absent a government motion to do so, routine application of the Guidelines to juvenile offenders is fundamentally inconsistent with the Supreme Court’s Eighth Amendment jurisprudence.
The highly deferential standard of review that appellate courts apply to within-Guidelines sentences only exacerbates the tensions between standard Guideline-sentencing procedures and constitutional requirements. Absent searching substantive review of Guidelines sentences, an appellate court risks endorsing a sentencing system that unconstitutionally discourages consideration of an offender’s youth and its attendant characteristics. The Guidelines, if applied in their standard manner to a juvenile offender, thus result in a federal sentencing regime that is fundamentally inconsistent with the Eighth Amendment requirements articulated in Roper, Graham, Miller, and Montgomery.
A terrific pair of lawyers at Sterne, Kessler, Goldstein & Fox helped make this brief become a reality (and get filed), and I am also thankful to a group of academics who signed on to this brief.
July 24, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)
Monday, July 23, 2018
A father's perspective on clemency and its potential (and limits)
A helpful reader alerted me to this interesting new commentary authored by John Owen, headlined "A father's plea for mercy for his imprisoned daughter." Here are excerpts:
President Donald Trump’s recent pardons and commutations have spotlighted, once again, the importance of executive clemency to soften the harshness of our criminal justice system. President Abraham Lincoln was famous for preferring mercy over “strict justice.” In fact, he used his clemency power so liberally, his attorney general had to assign someone to shadow him to record the names of all those he pardoned or commuted, according to author Margaret Love....
That’s how executive clemency is supposed to work. It operates outside our rule of law, but it also respects it. It is the personal prerogative of the leader and so, inevitably, can be arbitrary. It is also a message to our branches of government and to our society to mitigate our desire for vengeance with compassion....
I have spent the past nine years grieving the almost 20-year sentence imposed on my daughter, Mary Anne Locke, for her low-level, non-violent role in a meth distribution conspiracy. She was ordered to report to federal prison in 2009, six weeks after she had a Cesarean section. Along with her baby, she left behind a loving husband and two other children.
Mary Anne did not have an easy life, and I accept the role I played in that.... In her early teens, Mary Anne found drugs and men who were themselves substance abusers and also physically violent.... She relapsed at age 28, triggered by personal tumult, as well as health problems for which she was prescribed amphetamines. It was around this time that she became involved with the head of the meth conspiracy charged in her federal case. He gave her an unlimited supply of meth and, in return, embroiled her in a supportive capacity in his drug distribution activities.
Pregnant with her second child in 2007, Mary Anne again disavowed the drug lifestyle. The indictment in her federal case was handed down in 2008, when she was pregnant with her third child, after two years of sobriety and a wonderful marriage with her then husband, who had no connection with her drug activities. She cooperated fully upon arrest, at considerable risk to herself.
Imagine our family’s devastation when she was sentenced to 234 months, or 19.5 years. Murderers get less time. Although nationally, statistics indicate that defendants with her characteristics would receive an almost 50 percent reduction of their applicable guideline, the judge gave her just a 20 percent reduction. Mary Anne was not the kingpin or organizer. She never engaged in or threatened any violence. She played a supportive role to fund her addiction. She had never spent more than a night in custody. She is precisely the kind of low-level player deserving of leniency.
Rather, her sentence was driven by the charging decisions of the prosecutors she faced and the particular sentencing philosophy of her judge. This judge has been critiqued as one of the harshest in the country. In fact, she is the only sitting judge to have been subject to a commutation by Trump (the 27-year sentence of Sholom Rubashkin). Moreover, today, not only would another judge give Mary Anne an almost 50 percent reduction of her applicable guideline, Mary Anne’s sentencing guideline would be substantially lower....
Needless to say, Mary Anne has served the top end of that guideline. And she has done so with distinction. She has been an exemplary prisoner — discipline-free, who has worked and studied consistently throughout her sentence, completing her final year in a three-year college program in office administration. Don’t get me wrong. Mary Anne broke the law and deserved punishment. But her lengthy sentence violates any basic notions of justice and proportionality. She deserves mercy.
She applied for clemency before President Barack Obama, and has again applied before President Trump. She was represented in both applications by the Clemency Project at the University of Minnesota Law School. I am a lifelong Republican. I am, however, forever grateful to Obama for bringing executive clemency back to its roots — to address systemic unfairness, while also acknowledging the humanity of each person behind bars. I am also buoyed by Trump’s recent clemency decisions, and his pronouncements that he plans to use it even more expansively.
But nothing beats a legislative solution that grants my daughter — and the thousands of prisoners like her — a “second look” at the severity and fairness of their sentence, in a public proceeding, with a judge and an advocate.
Thursday, July 19, 2018
"Assessing the Real Risk of Sexually Violent Predators: Doctor Padilla’s Dangerous Data"
The title of this post is the title of this new paper authored by Tamara Rice Lave and Franklin Zimring now available via SSRN. Here is its abstract:
This Article uses internal memoranda and emails to describe the efforts of the California Department of Mental Health to suppress a serious and well-designed study that showed just 6.5% of untreated sexually violent predators were arrested for a new sex crime within 4.8 years of release from a locked mental facility.
The Article begins by historically situating sexually violent predator laws and then explains the constitutionally critical role that prospective sexual dangerousness plays in justifying these laws. The Article next explains how the U.S. Supreme Court and the highest state courts have allowed these laws to exist without requiring any proof of actual danger. It then describes the California study and reconciles its findings with those of a well-known Washington study by explaining the preventive effects of increasing age. Finally, the Article explains how these results undermine the justification for indeterminate lifetime commitment of sex offenders