Saturday, March 25, 2017
"End the death penalty for mentally ill criminals"
The title of this post is the title of this new Washington Post commentary that strikes me as notable because it is penned by two former midwestern governors, Bob Taft (who was governor of Ohio from 1999 to 2007) and Joseph Kernan (who was governor of Indiana from 2003 to 2005). Here are excerpts:
Legislators in six states — Indiana, Ohio, South Dakota, Tennessee, Texas and Virginia — have proposed legislation to prohibit the death penalty for individuals with severe mental illness. As former governors of states that are grappling with this issue, we strongly support this effort to end an inhumane practice that fails to respect common standards of decency and comport with recommendations of mental-health experts.
The overwhelming majority of people with severe mental illness are not violent; in fact, they are more likely to be victims than perpetrators of violent crime. For the very small number who do commit a capital crime while suffering from a severe mental disorder, current death-penalty law does not adequately take the effects of their illness into account.
As a result, defendants with severe mental illness — such as schizophrenia, bipolar disorder, post-traumatic stress disorder and traumatic brain injury — continue to be sentenced to death and executed. Last March, Texas executed Adam Ward, a man recognized as “diagnosed with bipolar disorder and placed on lithium as early as age four,” according to appellate court documents. And in 2015, Georgia executed Andrew Brannan, a decorated Vietnam War veteran who also had a pronounced mental illness. He qualified for 100 percent disability from the Department of Veterans Affairs because of his PTSD and bipolar disorder.
Although their grave illnesses do not excuse these defendants’ crimes, we believe that life imprisonment without the possibility of parole would have been a more appropriate punishment. Illnesses such as schizophrenia and bipolar disorder are characterized by impairments that — when untreated — significantly affect one’s ability to distinguish fact from reality, to make rational decisions or to react appropriately to events and other people. Under these conditions, the degree of culpability may not rise to the level of cold, unimpaired calculus that justifies the ultimate penalty....
Studies have also shown that death- penalty jurors often misunderstand mental illness, which is often viewed as an aggravating factor — that is, a reason to sentence someone to death — rather than as a mitigating factor, which is what it should be. The troubling consequence is that some defendants may end up on death row because of their mental illness.
The fact that the death penalty applies to those with mental illness also means that veterans with demonstrated PTSD may be executed. Even though most of the thousands of veterans struggling with PTSD do not commit the serious crimes that may be eligible for the death penalty, an estimated 10 percent of the United States’ death-row inmates are veterans — some of whom suffered from active and severe symptoms of PTSD at the time of their crime. These veterans have experienced trauma that few others have faced and have made a vital contribution to the safety of our country that deserves our recognition....
The death penalty was not intended for people in the throes of severe delusions, living with schizophrenia or suffering from combat-related PTSD. These are not the blameworthy individuals whose executions can be justified. We come from different political parties, but we join the majority of Americans — supporters and opponents of the death penalty alike — who believe it should not be imposed on defendants with such serious impairments. This is a fair, efficient and bipartisan reform that would put an end to a practice that is not consistent with current knowledge about mental illness and fundamental principles of human decency.
Thursday, March 23, 2017
"How long should Louisiana keep old, ill criminals in prison?"
The title of this post is the headline of this lengthy NOLA.com article. Here are excerpts:
Emanuel Lee [is] doing life for strangling his girlfriend in New Orleans.... Lee arrived at Angola 26 years ago [and] unless something drastic changes, he will die at Angola, one of the hundreds of aging and ill inmates who are costing taxpayers hundreds of thousands of dollars every year to treat and incarcerate.
What to do with Lee and prisoners like him is likely to be a major topic of discussion in the Louisiana Legislature's 2017 session starting April 10. Gov. John Bel Edwards is expected to make a push to lower Louisiana's highest-in-the-world incarceration rate, in part by opening options for parole for non-violent offenders who serve shorter prison sentences. But the governor also has said he is interested in reducing the number of Louisiana inmates with longer sentences as well.
Many of Louisiana's older, long-term prisoners might no longer pose a threat to society, judging from national studies of recidivism. And for prisoners with serious illnesses, the costs of treatment can be daunting. Taxpayers are responsible for prison medical care, but some of that money could be used elsewhere, such as for higher education and mental health care for children, if ill prisoners were released.
The governor's task force on reducing the prison population recommended last week that Louisiana expand parole opportunities to prisoners with long sentences, including lifers. It suggested that lifers be eligible for parole after serving 30 years in prison and reaching age 50, unless they were convicted of first-degree murder. People serving long but less-than-life sentences should be eligible for parole after 20 years in prison and reaching age 45, even if they committed violent or sex crimes, according to the task force.
These provisions are often referred to as "geriatric parole." If put into place, geriatric parole would immediately make about 570 prisoners eligible for parole, and also would affect convicts who are sentenced in the future to life terms. Lee might come up for parole in four years, after serving 30 years of his sentence.
The task force has also suggested that Edwards and lawmakers make it easier for people with serious medical conditions, no matter their age, to get out of prison. They are proposing a medical furlough program to let any inmate who is not on death row be released temporarily from prison to a hospital or nursing home for medical treatment.
These recommendations aren't without controversy. The Louisiana District Attorneys Association has said geriatric parole and other proposals to let violent offenders out of prison are non-starters. The group's representative on the governor's task force, District Attorney Bo Duhe of the 16th Judicial District, voted against geriatric parole.
Duhe supported the medical furlough concept, but the District Attorneys Association said its members have concerns about that recommendation, too, and many want to alter it if it has a chance of becoming law. "Those issues have been suspect because of their potential for abuse," said Pete Adams, executive director of the association.
In a state where the law-and-order crowd insists "life means life," it's easy to see why some are nervous at the prospect of offering the possibility of freedom to a criminal who was banished for life, even if the criminal is sick, old or dying. Many of Louisiana's 4,850 lifers have committed very serious crimes....
Louisiana is an outlier in how it punishes crimes such as Lee's. Only Louisiana and one other state, Mississippi, mandate life without parole for second-degree murder; there is no option in the law. In Texas that crime is punished by five to 99 years in prison, with parole eligibility after 30 years. In Arkansas, it is a 10- to 40-year sentence, according to a report issued by the Louisiana governor's sentencing task force....
One of the arguments for giving older inmates a shot at parole, even those convicted of violent crime, centers on their unlikelihood of committing crimes again. Research suggests that most people "age out" of criminal activity after their 20s....
Even if parole becomes possible for people with life sentences, it's not automatic. That's a decision for the Pardons and Parole Board, which in 2015 granted only 2 percent of discretionary parole requests, according to the governor's task force report....
While some advocates for geriatric and medical parole make a moral argument to release old or ill prisoners, there is also a practical reason: It's expensive for the public. During the fiscal year that ended June 30, the Department of Corrections spent about $52.3 million on hospital and medical wards in its prisons, plus $22.7 million for health care at off-site locations, for a total of $75 million.
Older inmates require treatment for dementia, blindness, hypertension, hearing loss and vision problems at a higher rate than their younger counterparts. Older people who have been locked up for decades are more likely to need medical care than a person who is the same age but not in prison: They go to the doctor about five times more often, according to the Vera Institute of Justice.
Wednesday, March 22, 2017
Tenth Circuit clarifies and emphasizes import and reach of Graham's limit on extreme juve sentences
Yesterday in Budder v. Addison, No. 16-6088 (10th Cir. March 21, 2017) (available here), a Tenth Circuit panel granted habeas relief to a juvenile non-homicide offender sentenced in Oklahoma to serve over 131 years in prison before being eligible for parole. The Budden opinion discusses the Supreme Court's Graham ruling at great length in the course of rejecting Oklahoma's effort to defend a sentence that was not technically "life without parole." Here are some excerpts from the opinion:
Despite Oklahoma’s arguments to the contrary, we cannot read the Court’s categorical rule as excluding juvenile offenders who will be imprisoned for life with no hope of release for nonhomicide crimes merely because the state does not label this punishment as “life without parole.” The Constitution’s protections do not depend upon a legislature’s semantic classifications. Limiting the Court’s holding by this linguistic distinction would allow states to subvert the requirements of the Constitution by merely sentencing their offenders to terms of 100 years instead of “life.” The Constitution’s protections are not so malleable.
More importantly, the Court did not just hold that it violated the Eighth Amendment to sentence a juvenile nonhomicide offender to life without parole; it held that, when a state imposes a sentence of life on a juvenile nonhomicide offender, it must provide that offender with a “meaningful opportunity to obtain release.” Id. at 75; see also id. (“[The Eighth Amendment] does prohibit States from making the judgment at the outset that those offenders never will be fit to reenter society.”). Further, the Court explained that its categorical holding was necessary because it would “give all juvenile nonhomicide offenders a chance to demonstrate maturity and reform.” Graham, 560 U.S. at 79 (emphasis added). If the rule announced in Graham is to provide all juvenile offenders such an opportunity, it must be read to apply to all sentences that are of such length that they would remove any possibility of eventual release. Thus, we conclude, the sentencing practice that was the Court’s focus in Graham was any sentence that denies a juvenile nonhomicide offender a realistic opportunity to obtain release in his or her lifetime, whether or not that sentence bears the specific label “life without parole.” ...
Again, we must emphasize that states may not circumvent the strictures of the Constitution merely by altering the way they structure their charges or sentences. Just as they may not sentence juvenile nonhomicide offenders to 100 years instead of “life,” they may not take a single offense and slice it into multiple sub offenses in order to avoid Graham’s rule that juvenile offenders who do not commit homicide may not be sentenced to life without the possibility of parole. When the Court compared the severity of the crime with the severity of the punishment, in light of the characteristics of the offender, it did not look to the state’s definitions or the exact charges brought. It looked to whether the offender was a juvenile, whether the offender killed or intended to kill the victim, and whether the sentence would deny the offender any realistic opportunity to obtain release. The Court specifically concluded that, not only was a categorical rule appropriate, it was “necessary,” id. at 75, because a case specific approach “would allow courts to account for factual differences between cases and to impose life without parole sentences for particularly heinous crimes,” id. at 77. The Court found this approach to pose too great a risk that some juveniles would receive life without parole sentences “despite insufficient culpability.” Id. at 78 (quoting Roper, 543 U.S. at 572–73). The Court was not convinced “that courts taking a case-by-case proportionality approach could with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that have the capacity for change.” Id. at 77. Not only did the Court draw the line at homicide, it structured a categorical rule specifically to prevent the possibility that a sentencing judge would ever impose a sentence of life without the possibility of parole on a juvenile who did not commit homicide. The Eight Amendment prohibits such a sentence, regardless of the severity of nonhomicide crimes a juvenile has committed.
Monday, March 20, 2017
Over Posnerian dissent, Seventh Circuit panel upholds two-year prison term for elderly, ill fraudster
A Seventh Circuit panel recently issued an interesting set of opinions discussing federal prison care in the course of rejecting a sentencing appeal in US v. Rothbard, No. 16-3996 (7th Cir. March 17, 2017) (available here). The start of the majority opinion by Chief Judge Wood provides the basics of the case and ruling:
Jeffrey Rothbard pleaded guilty to one count of wire fraud in connection with his participation in a scheme to defraud companies that were interested in obtaining loans for environmentally friendly upgrades to their facilities. He committed this offense, which yielded more than $200,000 for him, while he was on probation for a felony forgery conviction in Indiana. The district court sentenced him to 24 months’ imprisonment, despite the fact that Rothbard is an older man with serious health problems and the Probation Office thought that incarceration was not necessary. On appeal, Rothbard urges us to find that his sentence is substantively unreasonable, both because he has stayed out of trouble for nearly three years and because he fears that the Bureau of Prisons (BOP) may be unable to furnish the medication on which his health critically depends.
Perhaps, had we been the sentencing judges, we would have accepted his arguments. But the district court here gave sound reasons for its chosen sentence. In addition, both the evidence in the record before the district court, and supplemental information that we requested about BOP’s ability to provide appropriate care, satisfy us that the nominal 24-month sentence will not, in reality, spell doom for Rothbard. We therefore affirm the district court’s judgment.
Judge Posner dissented from the majority ruling, citing an array of sources to support his contention and concern that BOP might not adequately attend to the defendant's medical needs. His dissent concludes this way:
To conclude, my inclination would be to reverse the judgment of the district court with directions to impose the sentence recommended by the probation service. But I would be content to reverse and remand with instructions that the district judge appoint neutral expert witnesses drawn both from the medical profession and from academic analysis of prison practices and conditions, with particular emphasis on the federal prison system, and that the judge reconsider his sentence in light of evidence presented by these witnesses as well as any witnesses that the government or the defendant may care to call.
What is clear is that Jeffrey Rothbard is entitled to a more informed and compassionate judicial response to his physical and mental illnesses than he has received from the district court and this court.
Split Louisiana Supreme Court refuses to allow jury to hear about potentially applicable mandatory minimum sentence for habitual offender
I just learned today about an interesting set of opinions handed down last week by the Louisiana Supreme Court in Louisiana v. Guidry, No. 2016-KK-1412 (La. March 15, 2017) (available here). This lengthy local article about the decision, headlined "Jurors shouldn't be told possible mandatory minimums for repeat offenders, La. Supreme Court rules," provides this basic summary of the ruling and its context:
Louisiana jurors should not be told of possible mandatory minimum sentences defendants might face under the state's habitual offender law, because the knowledge could distract from their duty to determine guilt or innocence in a case, the Louisiana Supreme Court said in a split decision issued late Wednesday (March 15).
In a 5-2 ruling, the high court said the issue of possible mandatory minimums for repeat defendants "is too far attenuated from the guilt phase of trial to be discussed before a jury," and for a trial judge to allow such disclosure constitutes error. Chief Justice Bernette J. Johnson and Justice John L. Weimer dissented.
The decision comes in response to the Orleans Parish case of Corei Guidry, an accused drug dealer whose trial before Criminal District Court Judge Byron C. Williams has been stayed over this issue since last July. Guidry, 29, faces 10 to 50 years if found guilty of possession with the intent to distribute heroin. Should he be convicted of what would be his fourth felony offense, District Attorney Leon Cannizzaro's office would have the post-trial option to file a multiple-offender bill. If Guidry's prior history of three or more felony convictions can be proven at a post-conviction hearing, the judge would be required under state law to impose a mandatory minimum sentence of 50 years to life.
Here is how the majority opinion in this case begins:
The issue presented in this case is whether the trial court may allow a criminal jury to be informed of the possible mandatory minimum sentence faced by the defendant if, after a conviction on the offense being tried, he were to be sentenced under the Habitual Offender Law. For the reasons set forth below, we find the district court erred in denying the State’s motion in limine, which sought to disallow the defendant from mentioning in argument the mandatory minimum sentence the defendant could be subject to under the Habitual Offender Law should the State seek to enhance his sentence under that law and should the court find the State has proved all of the elements to warrant enhancement of the sentence. We find the issue of the possible mandatory minimum sentences that may be imposed if the defendant is convicted and the State successfully pursues enhancement of the sentence under the Habitual Offender law is too attenuated from the guilt phase of trial to be discussed before a jury, because it shifts the focus of the jury from its duty to determine guilt or innocence to issues regarding sentencing, possibly causing confusion of the issues and inviting the jury to speculate as to why a defendant may be facing such a term of imprisonment. Accordingly, we reverse the district court’s ruling.
And here is how the chief dissenting opinion starts:
I respectfully dissent and would deny the writ because the state has shown no abuse of discretion in the trial court’s denial of the state’s motion to prohibit the defense from referencing the possible life sentence that defendant will all but certainly face if convicted and adjudged a habitual offender. It has long been settled that it is within the trial judge’s discretion, in instances in which a specific punishment is not statutorily mandated, to permit or deny instruction or argument as to sentencing. The majority has accepted the invitation of the Orleans Parish District Attorney’s Office to establish a new per se rule which will substantially limit trial court discretion to control the information given to the jury. Under this new rule, any reference — whether by the court or in argument from the parties — to the enhanced sentence a defendant will face if he is convicted and adjudged a habitual offender, will be impermissible, unless perhaps the defendant elects to testify and subject himself to cross-examination about his prior convictions.
The trial court has the discretion to permit or prohibit references to sentencing, other than for those sentences automatically mandated by statute, because the trial judge sits in the best position to determine whether the penalty provisions at issue, including those applicable under the Habitual Offender Law, constitute “law applicable to the case,” of which the jury should be apprised under the circumstances of the particular prosecution.
I am unpersuaded that the trial court abused its discretion here by refusing to prohibit the defense from referencing the potential habitual offender sentence, especially in light of the overwhelming evidence that the Orleans Parish District Attorney’s Office almost reflexively (through his assistant district attorneys) institutes habitual offender proceedings upon securing the conviction at trial of a defendant with a prior felony. The prosecuting attorneys in Orleans Parish routinely wield the Habitual Offender Law, both during pre-trial plea negotiations and, in the event that tactic fails to yield a guilty plea, after obtaining a conviction at trial, to secure the harsher punishment of even non-violent offenders.
As the start of the dissenting opinion hints, there is a significant back-story to both the substantive and procedural issues surrounding this Louisiana case and the application of the state's Habitual Offender law. Because various opinions in Guidry engage in that back-story in various ways, the full opinion is definitely worth a full read.
Sunday, March 19, 2017
"Taking Medical Judgment Seriously: Professional Consensus As a Trojan Horse for Constitutional Evolution"
The title of this post is the title of this notable new paper authored by Charlie Eastaugh and available via SSRN. Here is the abstract:
In the 2015 case of Hall v. Florida, the Supreme Court of the United States (SCOTUS) undertook a revolutionary approach to its ‘evolving standards’ jurisprudence in punishments clause adjudication. Hall demonstrated for the first time an earnest embrace of ‘professional consensus’ as an indicia of evolving standards — decided by the liberal-leaning wing of the Court, with Justice Kennedy as the swing.
Through an analysis of Atkins v. Virginia, a case which finally protected intellectually disabled offenders from execution in 2002, this article introduces the professionally-accepted psychiatric definitions of intellectual disability (ID) and challenges the assumptions — still visible across the nation — that intelligence is as straightforward as numerical fact. It will be shown that an accurate assessment of ID for Atkins claims has so far not been forthcoming in many cases, with Hall as a prime example.
In Moore v. Texas — for which an eight-Justice Court heard oral argument in November 2016 — SCOTUS is faced with the chance to provide further, essential clarity to this debate. The immediate ramifications of Moore are likely to see this inmate spared from execution. This paper develops the claim that the case could mean far more: The Court’s novel acceptance of professional standards in Hall has created a precedential Trojan Horse — one loaded with medical professionals and armed with epistemic knowledge, and one which provides the strongest opportunity for further Eighth Amendment evolution. Should the Court follow the Hall trajectory in Moore, such an attack is primed for undermining another fundamental portion of capital punishment deemed abhorrent by medical professionals and civil liberties organisations across the nation: long — often decade-long — stays on death row, invariably in extreme solitary confinement.
Friday, March 17, 2017
"Good, Bad and Wrongful Juvenile Sex: Rethinking the Use of Statutory Rape Laws Against the Protected Class"
The title of this post is the title of this new article authored by Anna High that a helpful reader flagged for me. Here is the abstract:
This article considers the question of whether statutory rape laws can and should be used against members of the class they were designed to protect. Many commentators have argued that meaningfully consensual sex among similarly situated and sufficiently mature teenagers should be beyond the scope of strict liability rape laws, but the question becomes more fraught in the context of the “contested outer limits” of adolescent sexuality — sexual contact among children and adolescents that offends social norms, leads to harmful outcomes or appears to be exploitative. What are the implications of using statutory rape laws against minors to target “bad sex”?
I contend that even in relation to “bad sex,” there are serious policy and constitutional objections to the use of statutory rape laws against a member of the class they are designed to protect. In jurisdictions without all-encompassing age-gap provisions, the response to sex among adolescents needs to be reformulated to ensure that the use of statutory rape laws against minors is confined to cases involving wrongful, as opposed to mere bad, sex, and is predicated on a clear and objective definition of exploitation, as opposed to mere fornication, as the punitive target.
Eleventh Circuit panel declares Alabama murderer incompetent to be executed
A panel of the Eleventh Circuit on Wednesday reached the rare conclusion that an Alabama death row prisoner was not competent to be executed. The majority opinion authored by Judge Martin in Madison v. Commissioner, No. 16-12279 (11th Cir. March 15, 2017) (available here), gets started this way:
Thirty years ago, the Supreme Court held that the Eighth Amendment prohibits the execution of a person who is incompetent. Ford v. Wainwright, 477 U.S. 399, 409–10, 106 S. Ct. 2595, 2602 (1986). The Court has since clarified that a person cannot be executed if he lacks a “rational understanding” of the reason for his execution. Panetti v. Quarterman, 551 U.S. 930, 954–60, 127 S. Ct. 2842, 2859–62 (2007). This standard requires the prisoner to be able to rationally understand the connection between the crime he committed and the punishment he is to receive. See Ferguson v. Sec’y, Florida Dep’t of Corr., 716 F.3d 1315, 1336 (11th Cir. 2013). The Supreme Court told us that if the prisoner does not understand this connection, “the punishment can serve no proper purpose” and cannot be carried out. Panetti, 551 U.S. at 960, 127 S. Ct. at 2862.
This habeas petitioner, Vernon Madison, is a 66-year-old man on death row for the murder of a police officer over three decades ago. In recent years, Mr. Madison has suffered strokes resulting in significant cognitive and physical decline. His lawyers argue here that he is mentally incompetent to be executed under Ford and Panetti. Finding that Mr. Madison had made a substantial threshold showing of incompetency, an Alabama trial court held a competency hearing. At the hearing, Mr. Madison presented unrebutted testimony from Dr. John Goff that his strokes caused major vascular disorder (also known as vascular dementia) and related memory impairments and that, as a result, he has no memory of committing the murder — the very act that is the reason for his execution. To the contrary, Mr. Madison does not believe he ever killed anyone. Dr. Goff testified that due to his memory impairments, Mr. Madison does not have a rational understanding of why the state is seeking to execute him. The State presented expert testimony from Dr. Karl Kirkland. Dr. Kirkland testified that Mr. Madison was able to accurately discuss his legal appeals and legal theories with his attorneys and — on pretty much this basis alone — concluded that Mr. Madison has “a rational understanding of [his] sentence.” Accepting the testimony of Dr. Kirkland, the Alabama trial court decided that Mr. Madison is competent to be executed. Mr. Madison argues that the trial court’s decision relied on an unreasonable determination of the facts and involved an unreasonable application of the law. We agree.
In so holding, we are mindful of the great deference due to state court decisions on federal habeas review, particularly when the state court is applying a general standard like the one in Panetti. See Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 786 (2011) (“The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” (quotation omitted)). But “even a general standard may be applied in an unreasonable manner.” Panetti, 551 U.S. at 953, 127 S. Ct. at 2858. Panetti may set out a general standard for competency, but the focus of the inquiry is clear. Panetti doesn’t ask whether the prisoner can talk about the history of his case or legal theories with his attorneys. Instead, Panetti requires courts to look at whether the prisoner is able to rationally understand the connection between the crime he committed and the punishment he is to receive. See Panetti, 551 U.S. at 960, 127 S. Ct. at 2862. One of the experts testified that due to a mental disorder, Mr. Madison was not able to make this connection. The other expert never addressed this question at all. This record is therefore wholly insufficient to support the trial court’s decision. We conclude that the state court’s decision that Mr. Madison is competent to be executed rested on an unreasonable determination of the facts and involved an unreasonable application of Panetti. We therefore reverse the District Court’s denial of habeas relief.
A dissent authored by Judge Jordan gets started this way:
After reviewing the record, I believe that Vernon Madison is currently incompetent. I therefore do not think that Alabama can, consistent with the Constitution, execute him at this time for his murder of a police officer three decades ago. See generally Panetti v. Quarterman, 551 U.S. 930, 958 (2007) (explaining that a state cannot put to death a prisoner who “cannot reach a rational understanding of the reason for the execution”). But Congress has chosen to generally prohibit federal courts from adjudicating constitutional claims anew on habeas review, so Mr. Madison’s competency (or lack thereof) is not our initial call to make. Under the restrictive standards we are required to apply, see 28 U.S.C. § 2254(d), and given the way we interpreted Panetti in Ferguson v. Secretary, 716 F.3d 1315 (11th Cir. 2013), I do not think Mr. Madison can obtain habeas relief.
Thursday, March 16, 2017
New Sentencing Project report on "Immigration and Public Safety"
Via email, I got word that the Sentencing Project has released this new report discussing research about the impact of immigration on public safety. Here is the report's executive summary:
Foreign-born residents of the United States commit crime less often than native-born citizens. Policies that further restrict immigration are therefore not effective crime-control strategies. These facts — supported by over 100 years of research — have been misrepresented both historically and in recent political debates.
Starting from his first day as a candidate, President Donald Trump has made demonstrably false claims associating immigrants with criminality. As president, he has sought to justify restrictive immigration policies, such as increasing detentions and deportations and building a southern border wall, as public safety measures. He has also linked immigrants with crime through an Executive Order directing the Attorney General to establish a task force to assist in “developing strategies to reduce crime, including, in particular, illegal immigration, drug trafficking, and violent crime,” and by directing the Department of Homeland Security to create an office to assist and publicize victims of crimes committed by immigrants.
By surveying key research on immigration and crime, this report seeks to enable the public and policymakers to engage in a more meaningful policy debate rooted in facts. Immigrants’ impact on public safety is a well-examined field of study.
A rigorous body of research supports the following conclusions about the recent impact of immigrants in the United States:
1. Immigrants commit crimes at lower rates than native-born citizens.
2. Higher levels of immigration in recent decades may have contributed to the historic drop in crime rates.
3. Police chiefs believe that intensifying immigration law enforcement undermines public safety.
4. Immigrants are under-represented in U.S. prisons.
Sunday, March 12, 2017
NY Times editorial makes pitch for raising the age
This New York Times editorial, headlined "Crime and the Adolescent Brain," makes the case for moving up the age for adult court treatment. Here are excerpts:
Over the last decade, seven states — Connecticut, Illinois, Louisiana, Massachusetts, Mississippi, New Hampshire and South Carolina — have passed laws that channel most young offenders into juvenile courts, where they can receive counseling and support, instead of into adult courts and adult prisons, which are not equipped to deal with adolescents.
This wise approach has bypassed New York, which is one of only two states — the other being North Carolina — that automatically try 16-year-olds as adults. While New York lawmakers fear that raising the age for adult courts would make them seem “soft on crime,” some state legislatures are now considering proposals to raise the age to 21.
Connecticut’s experience is instructive. In 2007, it raised the age of adult prosecution from 16 to 18 as part of a package of criminal justice reforms. It moved most nonviolent infractions — things like shoplifting, drug possession and disorderly conduct — out of the formal court system and invested in counseling and intervention programs that allowed teenagers to avoid criminal records.
A 2016 report by the Malcolm Wiener Center for Social Policy at the Harvard Kennedy School found that raising the age for adult prosecution produced sharp reductions in arrests, court caseloads and incarceration costs. Sixteen-year-olds who are tried as juveniles are less likely to be rearrested than those tried as adults. And arrests for people under 18 dropped by an astonishing 68 percent while the crime rate has continued to decline....
Encouraged by these results, Gov. Dannel Malloy of Connecticut has introduced a bill that would include 18- to 20-year-olds who commit all but the most serious crimes under a new category, “young adult” offenders.... Both Massachusetts and Illinois are also considering bills that would channel most 18-, 19- and 20-year-old offenders into the juvenile system.
Setting the age for adult criminal responsibility at 16, as New York does, is inhumane. New York’s record on this is doubly shameful because state lawmakers in 1962 settled on 16 temporarily when they could not agree on a definition of adulthood. The Legislature promised to revisit the issue, but inertia set in. Generations of young offenders were damaged, some irreparably, by this decision. Surely, it’s time to correct this mistake.
Sunday, March 05, 2017
"Women in Prison: Should they be treated differently from men?"
The title of this post is the title of a lengthy new examination of the incarceration rates of women in recent years just published here by the CQ Researcher, which seeks to provide "in-depth reporting on issues in the news." The full report requires a subscription, but here is the preview via the CQ Researcher website:
The number of women in state and federal prisons has surged since 1978 by nearly 800 percent — twice the growth rate for men. Mandatory sentences for drug offenses enacted during the 1980s and 1990s have hit women particularly hard, many experts say. But some prosecutors and Republicans dispute the claim that the so-called war on drugs has disproportionately hurt women. They say mandatory sentencing has reduced crime, helped break up drug rings and ended sentencing disparities.
Reformers hope states' recent efforts to reduce prison populations and spend more on drug treatment will help women. But they say women still remain an afterthought in the penal system. For example, reformers say courts and prisons rarely recognize women's responsibility as mothers or the factors underlying their participation in crime, such as domestic abuse. The justice system, women's advocates say, needs to think creatively about how to help female prisoners. Meanwhile, in the juvenile system, girls often receive harsher punishments than boys who commit similar offenses.
Thursday, March 02, 2017
Washington Supreme Court rules Eighth Amendment precludes applying mandatory minimum adult sentencing scheme to juvenile offenders
The Supreme Court of Washington issued a very significant new ruling expanding the reach of the Eighth Amendment as adumbrated by the Supreme Court in Graham and Miller. The extended ruling in Washington v. Houston-Sconiers, No. 92605-1 (Wash. March 2, 2016) (available here), gets started this way:
"[C]hildren are different." Miller v. Alabama,_ U.S. _, 132 S. Ct. 2455, 2470, 183 L. Ed. 2d 407 (2012). That difference has constitutional ramifications: "An offender's age is relevant to the Eighth Amendment, and [so] criminal procedure laws that fail to take defendants' youthfulness into account at all would be flawed." Graham v. Florida, 560 U.S. 48, 76, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); U.S. CONST. amend. VIII. The defendants in this case -- Zyion Houston-Sconiers and Treson Roberts -- are children. On Halloween night in 2012, they were 17 and 16 years old, respectively. They robbed mainly other groups of children, and they netted mainly candy.
But they faced very adult consequences. They were charged with crimes that brought them automatically into adult (rather than juvenile) court, without any opportunity for a judge to exercise discretion about the appropriateness of such transfers. They had lengthy adult sentencing ranges calculated under adult Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, rules. And they received lengthy adult firearm sentence enhancements, with their mandatory, consecutive, flat-time consequences, without any opportunity for a judge to exercise discretion about the appropriateness of that sentence increase, either.
As a result, Houston-Sconiers faced a sentencing range of 501-543 months (41.75-45.25 years) in prison. Clerk's Papers (Houston-Sconiers) (CPHS) at 227. Of that, 3 72 months (31 years) was attributable to the firearm sentence enhancements and would be served as '"flat time,"' meaning "in total confinement" without possibility of early release. Id.; RCW 9.94A.533(3)(e). Roberts faced a sentencing range of 441-483 months (36.75-40.25 years) in prison. Clerk's Papers (Roberts) (CPR) at 154. Of that, 312 months (26 years) would be "'flat time"' attributable to the firearm sentence enhancements. Id.
To their credit, all participants in the system balked at this result. But they felt their hands were tied by our state statutes.
We now hold that the sentencing judge's hands are not tied. Because "children are different" under the Eighth Amendment and hence "criminal procedure laws" must take the defendants' youthfulness into account, sentencing courts must have absolute discretion to depart as far as they want below otherwise applicable SRA ranges and/or sentencing enhancements when sentencing juveniles in adult court, regardless of how the juvenile got there. We affirm all convictions but remand both cases for resentencing.
March 2, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (10)
Saturday, February 25, 2017
Disconcerting review of modern America highlighting impacts of opioid epidemic and mass criminal enforcement
A helpful reader highlighted to me this extended article from Commentary by Nicholas Eberstadt that covers a lot of (depressing) ground about modern realities in the United States. The full title of the piece highlights its themes: "Our Miserable 21st Century: From work to income to health to social mobility, the year 2000 marked the beginning of what has become a distressing era for the United States." I recommend the full article for lots of reasons (especially for those still struggling to figure out why so many folks were inclined to vote for Prez Trump), and here snippets of passages that struck me as particularly interesting for those concerned with modern opioid problem and broader criminal justice realities:
The opioid epidemic of pain pills and heroin that has been ravaging and shortening lives from coast to coast is a new plague for our new century. The terrifying novelty of this particular drug epidemic, of course, is that it has gone (so to speak) “mainstream” this time, effecting breakout from disadvantaged minority communities to Main Street White America. By 2013, according to a 2015 report by the Drug Enforcement Administration, more Americans died from drug overdoses (largely but not wholly opioid abuse) than from either traffic fatalities or guns. The dimensions of the opioid epidemic in the real America are still not fully appreciated within the bubble, where drug use tends to be more carefully limited and recreational. In Dreamland, his harrowing and magisterial account of modern America’s opioid explosion, the journalist Sam Quinones notes in passing that “in one three-month period” just a few years ago, according to the Ohio Department of Health, “fully 11 percent of all Ohioans were prescribed opiates.” And of course many Americans self-medicate with licit or illicit painkillers without doctors’ orders.
In the fall of 2016, Alan Krueger, former chairman of the President’s Council of Economic Advisers, released a study that further refined the picture of the real existing opioid epidemic in America: According to his work, nearly half of all prime working-age male labor-force dropouts — an army now totaling roughly 7 million men — currently take pain medication on a daily basis....
But how did so many millions of un-working men, whose incomes are limited, manage en masse to afford a constant supply of pain medication? Oxycontin is not cheap. As Dreamland carefully explains, one main mechanism today has been the welfare state: more specifically, Medicaid, Uncle Sam’s means-tested health-benefits program.... In 21st-century America, “dependence on government” has thus come to take on an entirely new meaning....
The drop in crime over the past generation has done great things for the general quality of life in much of America. There is one complication from this drama, however, that inhabitants of the bubble may not be aware of, even though it is all too well known to a great many residents of the real America. This is the extraordinary expansion of what some have termed America’s “criminal class” — the population sentenced to prison or convicted of felony offenses — in recent decades. This trend did not begin in our century, but it has taken on breathtaking enormity since the year 2000.
Most well-informed readers know that the U.S. currently has a higher share of its populace in jail or prison than almost any other country on earth, that Barack Obama and others talk of our criminal-justice process as “mass incarceration,” and know that well over 2 million men were in prison or jail in recent years. But only a tiny fraction of all living Americans ever convicted of a felony is actually incarcerated at this very moment. Quite the contrary: Maybe 90 percent of all sentenced felons today are out of confinement and living more or less among us. The reason: the basic arithmetic of sentencing and incarceration in America today. Correctional release and sentenced community supervision (probation and parole) guarantee a steady annual “flow” of convicted felons back into society to augment the very considerable “stock” of felons and ex-felons already there. And this “stock” is by now truly enormous.
One forthcoming demographic study by Sarah Shannon and five other researchers estimates that the cohort of current and former felons in America very nearly reached 20 million by the year 2010. If its estimates are roughly accurate, and if America’s felon population has continued to grow at more or less the same tempo traced out for the years leading up to 2010, we would expect it to surpass 23 million persons by the end of 2016 at the latest. Very rough calculations might therefore suggest that at this writing, America’s population of non-institutionalized adults with a felony conviction somewhere in their past has almost certainly broken the 20 million mark by the end of 2016. A little more rough arithmetic suggests that about 17 million men in our general population have a felony conviction somewhere in their CV. That works out to one of every eight adult males in America today.
We have to use rough estimates here, rather than precise official numbers, because the government does not collect any data at all on the size or socioeconomic circumstances of this population of 20 million, and never has. Amazing as this may sound and scandalous though it may be, America has, at least to date, effectively banished this huge group—a group roughly twice the total size of our illegal-immigrant population and an adult population larger than that in any state but California—to a near-total and seemingly unending statistical invisibility. Our ex-cons are, so to speak, statistical outcasts who live in a darkness our polity does not care enough to illuminate—beyond the scope or interest of public policy, unless and until they next run afoul of the law.
Thus we cannot describe with any precision or certainty what has become of those who make up our “criminal class” after their (latest) sentencing or release. In the most stylized terms, however, we might guess that their odds in the real America are not all that favorable. And when we consider some of the other trends we have already mentioned — employment, health, addiction, welfare dependence — we can see the emergence of a malign new nationwide undertow, pulling downward against social mobility.
Wednesday, February 15, 2017
"Emotional Judges and Unlucky Juveniles"
The title of this post is the title of this notable new paper on SSRN authored by two economists, Naci Mocan and Ozkan Eren. Here is the abstract:
Employing the universe of juvenile court decisions in a U.S. state between 1996 and 2012, we analyze the effects of emotional shocks associated with unexpected outcomes of football games played by a prominent college team in the state. We investigate the behavior of judges, the conduct of whom should, by law, be free of personal biases and emotions. We find that unexpected losses increase disposition (sentence) lengths assigned by judges during the week following the game. Unexpected wins, or losses that were expected to be close contests ex-ante, have no impact.
The effects of these emotional shocks are asymmetrically borne by black defendants. We present evidence that the results are not influenced by defendant or attorney behavior or by defendants’ economic background. Importantly, the results are driven by judges who have received their bachelor’s degrees from the university with which the football team is affiliated. Different falsification tests and a number of auxiliary analyses demonstrate the robustness of the findings.
These results provide evidence for the impact of emotions in one domain on a behavior in a completely unrelated domain among a uniformly highly-educated group of individuals (judges), with decisions involving high stakes (sentence lengths). They also point to the existence of a subtle and previously-unnoticed capricious application of sentencing.
Repeat rape and murder for sex offender subject to monitoring shows limits of GPS as incapacitation tool
This article in my local paper about a local murder that has received a lot of attention provides a cold reminder that GPS monitoring typically cannot and will not alone serves as fool-proof crime prevention tool. The article is headlined "Ex-convict charged in slaying of Ohio State student was on GPS monitoring," and here are the details:
A sex offender who is accused of abducting, raping and killing an Ohio State University student was on GPS monitoring. Brian L. Golsby, 29, who was released from state prison on Nov. 13 after serving six years for robbery and attempted rape, had special conditions of supervision under his post-release control for five years.
"I can confirm that he was on GPS monitoring, which is not uncommon due to the fact that he did not have a permanent residence upon his release," said JoEllen Smith, a spokeswoman for the Ohio Department of Rehabilitation and Correction. Golsby was living in a state-contracted residential housing program that granted him a temporary residence.
Grove City police arrested Golsby after 21-year-old Reagan Tokes' body was found on Feb. 9 near the entrance of Scioto Grove Metro Park. Detectives say Golsby abducted Tokes after she left work Feb. 8 in the Short North. He forced her to withdraw $60 from an ATM, raped her and fatally shot her twice in the head before dumping her body. Investigators already had Golsby's DNA from prior offenses and matched it to a cigarette butt left in Tokes' car. Tokes was set to graduate from OSU in May with a degree in psychology.
Smith said state law prevents her from going into details of the conditions Golsby had to follow. All offenders are prohibited from carrying guns, but it's unclear whether travel restrictions were placed on Golsby in addition to what sex offenders have to abide by. "DRC contracts with community providers for electronic monitoring and GPS services. The level of monitoring depends on the offender and circumstances for which the service is requested," Smith said.
She would not specify which vendors are used or describe the level of monitoring that offenders like Golsby could have. It's unclear whether he triggered an alert while wearing the bracelet, or, if he had discarded the monitor, how parole officers would have been notified. It's also unknown how often parole officers check the movements of offenders assigned to them, or how far back the monitor records travel. "DRC is not providing specifics relative to this case due to the ongoing criminal investigation," Smith said.
Columbus police have been looking at Golsby as a possible suspect in a series of attacks on women in German Village and near Nationwide Children's Hospital.
Tuesday, February 14, 2017
Hard-to-believe harshness in prosecution of Virginia teen receiving underage pics
This new Reason piece by Lenore Skenazy tell a tale about a teenager in Virginia prosecuted for a sex offense that seem truly hard to believe. The piece is fully headlined "Teen Girl Sent Teen Boy 5 Inappropriate Pictures. He Faced Lifetime Registry as a 'Violent Sex Offender' or 350 Years in Jail. Welcome to the world of teens, computers, and prosecutors who want to look tough on sex offenders." And here is the story:
Zachary, now 19, is in jail awaiting sentencing for five pictures his teenage girlfriend sent him of herself in her underwear. He faced a choice between a possible (though unlikely) maximum sentence of 350 years in prison, or lifetime on the sex offender registry as a "sexually violent offender" — even though he never met the girl in person. Here's what happened.
About two years ago, when Zachary was a 17-year-old high school senior in Stafford County, Virginia, a girl in his computer club invited him over to visit. She introduced him to her younger sister, age 13. This younger sister told Zachary he reminded her of a friend: this friend, also a 13-year-old girl, shared Zachary's love of dragons and videogames.
The two 13-year-olds started skyping Zachary together. Eventually Zachary and the dragon-lover struck up a online friendship, which developed into a online romance. By the summer, a month after Zachary turned 18, the girl sent him five pictures of herself in her underwear. Her face was not visible, nor were her private parts.
That's according to information provided by Zachary's parents, as well as an evaluation with Zachary conducted by a psychologist. Zachary is incredibly smart, according to the psychologist, though socially awkward and emotionally immature. Importantly, he does not possess "distorted" ideas about sex, according to the psychologist.
Even so, Zachary was arrested and charged with 20 felonies, including indecent liberties with a minor, using a computer to propose sex, and "child porn reproduce/transmit/sell," even though he did not send or sell the pictures to anyone. All this, from five underwear pictures. If convicted, Zachary's father told me, he faced a theoretically possible maximum sentence of 350 years.
Instead, he took a plea bargain. This is what prosecutors do: scare defendants into a deal. Zachary agreed to plead guilty to two counts of "indecent liberties with a minor." For this, he will be registered as a violent sex offender for the rest of his life. Yes, "violent" — even though he never met the girl in person.
Zachary's dad wrote to the authorities asking about this, and got a letter back from the Virginia State Police reiterating that, "This conviction requires Zachary to register as a sexually violent offender." The letter, which was obtained by Reason, added that in three years, "a violent sex offender or murderer" can petition to register less frequently than every three months. "How do you like that?" said the dad in a phone conversation with me. "Same category as a murderer."
As part of the plea, Zachary also agreed never to appeal. He will be sentenced on March 9. Until then, he remains in jail. If this sounds like a punishment wildly out of whack with the crime, welcome to the world of teens, computers, and prosecutors who want to look tough on sex offenders. The girl did not wish to prosecute Zachary, according to his dad. He told me the pictures came to light because she had been having emotional issues, possibly due to her parents' impending divorce. Eventually she was admitted to a mental health facility for treatment, and while there she revealed the relationship to a counselor. The counselor reported this to her mother, the police, or both (this part is unclear), leading the cops to execute a search warrant of Zachary's electronic devices where they found the five photos and the chat logs....
Outraged readers should root for two things. First, that this case prompts the Virginia legislature to review the laws that enable draconian persecutions like the one against Zachary.
Second, that Zachary be given a punishment that truly fits the crime. If you recall the case of another Zach — Zach Anderson, a 19-year-old who had sex with a girl he honestly believed was 17 (because she said so) but was actually 14 — he was originally sentenced to 25 years on the sex offender registry. But after public outcry, he got two years' probation instead, on a "diversion program." A program like this is sometimes available for first-time offenders. It sounds far more reasonable. Or maybe Zachary could do some community service — like speaking at high school assemblies to warn students that what seems like consensual teenage shenanigans could land them on the registry for the rest of their lives.
I have no basis to question the basic account of this case, but I cannot help but think there is more to this story given that the defendant he was charged with 20 felonies. I do not know Virginia law well, but really wonder just how five texted pics alone could provide the foundation for charging 20 felonies.
UPDATE: A helpful reader alerted me to this local article from last month with suggests that part of the crimes of the defendant here included trying to arranging a meeting for sex with the underage girl discussed above. This addition aspect of the story makes it a little easier to believe and understand, though it does not undercut the apparent reality that prosecutors here took a remarkably aggressive posture in a case involving essentially teen sexting.
"Maryland prosecutor sentenced for hotel sex acts in front of glass door in Ocean City"
The title of this post is the headline of this Washington Post article, which sort of has a Valentine's Day theme. I recommend the article if full in order to get the "full monty" details, but here are highlights from the start of the article and its update:
It’s Valentine’s Day, and the top prosecutor in Cecil County, Md., having already celebrated his love with his wife in full view of numerous others, will stand before a judge today and receive a criminal sentence for such public displays of affection.
Edward “Ellis” Rollins III (R) was arrested in June for indecent exposure and disorderly conduct, for having sex, standing naked and other related acts at the sliding glass door of his tenth-floor Ocean City, Md., hotel room, while four tourists, a security officer and two Ocean City police officers watched. He was convicted by a Worcester County, Md., jury after a two-day trial in December. Rollins, 61, likely will not face jail time for the two misdemeanor convictions.... He did remove himself from consideration for a circuit court judgeship, which he was scheduled to interview for with the governor shortly after his arrest, on a bench where both his father and grandfather served.
Rollins did not return phone and email messages Monday, and his attorney, Cullen Burke, also did not return a call. At trial, Rollins did not testify, but his lawyer did not deny that Rollins and his wife enjoyed various carnal relations next to the sliding glass door of their hotel room. Burke described Rollins and his wife, Holly Rollins, as “still newlyweds” after six years of marriage, according to the Cecil Whig, and Holly Rollins testified she had no idea anyone was watching from the adjacent condominiums. Burke said there was 172 feet between the two buildings and that the Rollins’ hotel room “was a speck” in the vision of the tourists’ apartment.
But the four Pennsylvania women who spotted the activity, on two different days, felt it was much more visible than a speck. They returned to Ocean City and testified in detail about Rollins’ actions. It really wasn’t the sex so much as Rollins’ naked dancing and posing at the sliding glass door that truly offended the visitors, according to the media reports of their testimony. “You’re just sickening,” one woman turned and said to Rollins during her testimony. “I have nightmares because of you. I argue with my husband because it’s all I can talk about.”
UPDATE, 2:02 p.m.: Worcester County Circuit Judge Brian Shockley imposed a $1,000 fine and a 90-day jail sentence with all time suspended for Ellis Rollins, along with 100 hours of community service, 18 months of supervised probation and mental health treatment. Worcester County State’s Attorney said he asked for a two-year sentence with 18 months suspended, which would have meant Rollins would have spent six months in the Worcester jail, but Shockley did not take that recommendation.
Poll shows strong commitment to rehabilitation and prison alternatives for youth
A new poll released today by Youth First shows that 78 percent of Americans favor keeping young people out of prisons and instead prefer community-based alternatives that are proven to lead to better outcomes.
At a time when partisan polarization is dominating the political landscape, the poll finds that Americans from a wide range of backgrounds and all political stripes support shifting the youth justice system’s focus from incarceration and punishment to prevention and rehabilitation. Youth First, a national advocacy organization working to end the unconscionable practice of youth incarceration and reform the youth justice system, commissioned the poll which was conducted by GBA Strategies.
“Youth prisons are notoriously dangerous, ineffective, and outdated – and there is a clear consensus that it’s time to change the system,” said Liz Ryan, President of Youth First. “We know that kids can be rehabilitated without being locked up, if given the opportunity. States across the nation should unify behind this growing movement to close youth prison facilities and focus on solutions that actually work.”
The survey of over 1,000 adults found that:
· 89 percent support design treatment and rehabilitation plans that include a youth’s family in planning and services.
· 83 support providing financial incentives for states and municipalities to invest in alternatives to youth incarceration, such as intensive rehabilitation, education, job training, community services, and programs that provide youth the opportunity to repair harm to victims and communities.
· 69 percent support increasing funding to provide more public defenders to represent children in court.
· 70 percent support requiring states to reduce racial and ethnic disparities in the youth justice system.
Respondents cut across partisan affiliations, with 81% of Democrats, 83% of Independents, and 68% of Republicans supporting reform efforts.
Saturday, February 11, 2017
A (crazy) harsh sentence for a voter fraud conviction in Texas
According to Prez Trump, voter fraud may be one of the most prevalent federal crimes in the United States (perhaps second only to marijuana use). In light of the President's claims in this regard, I have to think the crazy harsh sentence imposed by a state court in Texas reported in this New York Times article is intended to try to deter this rampant crime. The lengthy front-page NYT article is headlined "Illegal Voting Gets Texas Woman 8 Years in Prison, and Certain Deportation," and here are the interesting details:
Despite repeated statements by Republican political leaders that American elections are rife with illegal voting, credible reports of fraud have been hard to find and convictions rarer still.
That may help explain the unusually heavy penalty imposed on Rosa Maria Ortega, 37, a permanent resident and a mother of four who lives outside Dallas. On Thursday, a Fort Worth judge sentenced her to eight years in prison — and almost certainly deportation later — after she voted illegally in elections in 2012 and 2014.
The sentence for Ms. Ortega, who was brought to this country by her mother as an infant, “shows how serious Texas is about keeping its elections secure,” Ken Paxton, the Texas attorney general, said in a statement. Her lawyer called it an egregious overreaction, made to score political points, against someone who wrongly believed she was eligible to vote.
“She has a sixth-grade education. She didn’t know she wasn’t legal,” said Ms. Ortega’s lawyer, Clark Birdsall, who once oversaw voter fraud prosecutions in neighboring Dallas County. “She can own property; she can serve in the military; she can get a job; she can pay taxes. But she can’t vote, and she didn’t know that.”
The punishment was strikingly harsh for an offense that usually merits far less jail time, if any. A second fraudulent ballot case in metropolitan Fort Worth ended in 2015 with probation. Ms. Ortega insisted in court that she had been unaware that she was ineligible to vote and was confused by registration forms and explanations by election officials.
Prosecutors for Mr. Paxton and Tarrant County said that she had lied and that the same forms and conversations proved it. A jury convicted her Wednesday of two felony charges. Mr. Birdsall said Mr. Paxton’s office had been prepared to dismiss all charges against Ms. Ortega if she agreed to testify on voting procedures before the Texas Legislature. But the Tarrant County criminal district attorney, Sharen Wilson, vetoed that deal, he said, insisting on a trial that would showcase her office’s efforts to crack down on election fraud.
Both the attorney general’s office and the county prosecutor declined to comment on the specifics of Mr. Birdsall’s statement, citing privacy rules for plea-bargain negotiations. A spokeswoman for Ms. Wilson, Sam Jordan, said any negotiations were only “discussions,” a description Mr. Birdsall disputed....
Ms. Ortega’s case is unusual not just for its harshness but for its circumstances. Many fraud convictions that draw prison sentences — and some that do not — involve clear efforts to influence election results. Texas prosecutors won prison sentences for four men who moved into a hotel in 2010 to claim residency so they could sway a local election. A woman in Brownsville, Tex., was placed on five years’ probation for casting five absentee ballots under different names in elections in 2012.
Lawyers offered no clear motive for Ms. Ortega’s decision to cast ballots beyond her desire to participate in elections. Ms. Ortega, a native of Monterrey, Mexico, came to Texas with her mother when she was an infant. More than a decade later, the family was scattered after the mother was arrested and deported. Two brothers born in Dallas automatically gained citizenship; Ms. Ortega became a permanent resident and gained a green card, her brother Tony Ortega, 35, said in an interview.
As a Dallas County resident, she registered to vote and later cast ballots in elections in 2012 and 2014, her lawyer, Mr. Birdsall, said. While that was illegal, there was no attempt to break the law, he maintained: Some government forms allow applicants to declare that they are permanent residents, but the voting registration form asks only whether an applicant is a citizen. Lacking the permanent resident option, he said, she ticked the “citizen” box. When the county later mailed her a registration card, he said, she believed she “was good to go.”
Ms. Ortega moved to neighboring Tarrant County and again registered, but this time checked a box affirming that she was not a citizen. When her application was rejected in March 2015, the trial showed, she called election officials and told them that she had previously voted in Dallas County without difficulty. Told that she could not vote unless she was a citizen, she asked for another application, and returned it with a check in the box affirming citizenship. That raised questions, and law enforcement officials arrested her on fraud charges.
Jonathan White, an assistant attorney general who helped prosecute the Ortega case with Tarrant County officials, said the evidence of fraud was unambiguous. “She told the elections office she was a citizen,” he said. “She told everyone else she wasn’t,” including a recorded statement to prosecutors in which she said she was a citizen of Mexico.
Mr. Birdsall said the arrest and prosecution are punishing a woman for her own confusion over whether residency and citizenship confer the same rights. “She wasn’t trying to topple the country,” he said. “She was trying to make more serious decisions about our country than the 50 percent of the people who didn’t bother to vote in the last election.”...
Ms. Ortega is now in a Fort Worth jail awaiting transfer to a state prison. Her four children, ages 13 to 16, are being cared for by siblings and her fiancé, Oscar Sherman, 27, a trucker who said her arrest had scotched their plans to marry. The children’s fate is unclear. Mr. Sherman lacks legal custody; her siblings are still debating their options.
Ms. Ortega’s future is bleak. The federal government frowns on giving green cards to felons. “She’ll do eight years in a Texas prison,” Mr. Birdsall said. “And then she’ll be deported, and wake up blinking and scratching in a country she doesn’t know.”
Far-right websites have seized on Ms. Ortega’s conviction as proof that Mr. Trump is right about rampant fraud and efforts by Democrats to steal the November election. There is, however, at least one flaw in that story: Ms. Ortega was a registered Republican. “She voted for Mitt Romney over Barack Obama in the 2012 election. In 2014 she voted for our current attorney general, Ken Paxton,” Mr. Birdsall said. “And guess what? He’s the one responsible for prosecuting her.”
Thursday, February 09, 2017
Noting the concerns prompted by aging sex offenders
This short local Ohio article, headlined "States look for solutions to growing number of aging sex offenders," provides yet another example of how the sex offender label has echoes throughout so many aspects of society. Here are excerpts from the piece:
As states like Ohio deal with a growing number of aging registered sex offenders, another state is examining what to do with elderly sex offenders when they are in need of nursing home care. In Iowa, lawmakers are studying whether to establish a separate facility for sex offenders to keep them away from other nursing home residents.
A Dayton Daily News examination found numerous examples of lax oversight of sex offenders in nursing homes in Ohio. This newspaper’s investigation found 136 sex offenders were living in 43 nursing homes in Ohio in October. It also identified potential problems with the safety net, from under-staffing at homes with offenders to a lack of information on the public registry used by facilities to make admission decisions.
The Iowa Senate Human Resources Committee this week approved a resolution which asks the state’s legislature to create a committee to study the establishment of a facility to care specifically for those who are sex offenders or are sexually aggressive.
Iowa, like Ohio, has no dedicated facility for housing sex offenders in need of long-term care. “The lack of such a facility places other geriatric patients, residents, and tenants at risk for being sexually abused,” the Iowa resolution says.
The proposal suggests studying either establishing a new facility, or expanding an existing one to keep sex offenders or sexually aggressive individuals separate from the general nursing home population.
Monday, February 06, 2017
The hardest of cases for death penalty abolitionists: convicted murderer who keeps murdering while in prison
This local news report of an apparent murder by an Ohio inmate already convicted in two other murders serves as a reminder that there are limits on how much you can incapacitate some persons who seem intent on being violent. The article is headlined "Two-time murderer suspected of killing another inmate, " and here are the ugly details:
A two-time murderer is suspected of killing another inmate, a Franklin County man, aboard a prison transport bus while it traveled south on Rt. 23 from Columbus on Wednesday evening. The body of David L. Johnson, 61, was found in the Ohio Department of Rehabilitation and Correction bus on Thursday evening when it stopped to deliver him to the Ross Correctional Institution, said Ross County Prosecutor Matthew Schmidt.
Johnson, who was serving an eight-year sentence for sexual battery, apparently was strangled; Casey Pigge, 28, is "absolutely the suspect" in the death, Schmidt said. Other inmates also were locked into a caged section of the bus with Johnson and Pigge, but apparently did not alert the guards and driver at the front of the bus of the assault, Schmidt said. The guards apparently cannot see back into all sections of the bus, he said. The inmates were wearing handcuffs, and perhaps belly chains, but could move around, the prosecutor said.
Inmates, including from the Southern Ohio Correctional Facility near Lucasville and the Ross Correctional Institution near Chillicothe, were taken aboard the bus to Columbus for medical treatment on Thursday and were on the return leg of the trip south when the apparent slaying occurred.
Pigge is serving a 30-year to life sentence at the Lucasville prison for the 2008 murder of Rhonda Sommers, 52, the mother of his then-girlfriend. Pigge was convicted of stabbing the woman and then setting her apartment on fire. Last week, Pigge pleaded guilty to using a cement block last year to repeatedly strike to kill his cellmate, Luther Wade, 26, of Springfield, at the Lebanon Correctional Institution in Warren County. Wade, serving a 10-year sentence for aggravated burglary, was repeatedly struck in the head. Pigge faces another life sentence in the slaying.
Schmidt... questioned Pigge having access to other inmates aboard the bus given his history of violence. Investigators are working to determine if Johnson died in Franklin County, Pickaway County or Ross Country as the bus traveled south, Schmidt said. "He crushed his cellmate's head with a cinder block. You would think the sensible thing to do would be to make sure he doesn't have free access to other inmates at any time. Apparently that is not an issue for the folks at DRC," Schmidt said.
Given that Pigge is seemingly due to get an LWOP sentence for previously having "crushed his cellmate's head with a cinder block," he would be essentially getting a "free" murder if he were not at least potentially subject to something worse than LWOP for his latest murder. Moreover, given than Pigge has now slaughtered two fellow inmates during his first decade of incarceration, the only real public safety options for him would seem to be long-term solitary confinement or the death penalty.
I am not asserting that folks like Pigge make the death penalty a must, but I am saying that it seems quite difficult to figure out what a just and effective punishment is for a murderer who seems keen and able to keep killing even while incarcerated.
Friday, February 03, 2017
Lamenting that Henry Montgomery (and many other juve LWOPers) may not much or any benefit from Montgomery
Jody Kent Lavy, who is executive director of the Campaign for the Fair Sentencing of Children, has this notable new commentary headlined "Supreme Court's will on juvenile offenders thwarted." Here are excerpts:
A little more than a year ago, the U.S. Supreme Court ruled 6-3 in Montgomery vs. Louisiana that Henry Montgomery — and anyone else who received mandatory life without parole for a crime committed when they were younger than 18 — was serving an unconstitutional sentence and deserved relief.
The sweeping opinion augmented three earlier decisions that had scaled back the ability to impose harsh adult penalties on youth, recognizing children’s unique characteristics made such penalties cruel and unusual. The Montgomery case made clear that the Eighth Amendment bars the imposition of life without parole on youth in virtually every instance.
But, in violation of the decision, prosecutors are seeking to re-impose life without parole in hundreds of cases, and judges are imposing the sentence anew. Hundreds of people serving these unconstitutional sentences — primarily in Louisiana, Pennsylvania and Michigan — are still awaiting their opportunities for resentencing. Henry Montgomery is among them.
I recently met Montgomery, now 70, at the Louisiana State Penitentiary in Angola, notorious as a place where most of its thousands of prisoners are destined to die. Montgomery, who is African-American, was convicted of killing a white police officer as a teenager. At the time, John F. Kennedy was president. Though his resentencing has yet to be scheduled, prosecutors say they plan to again seek life without parole.
Given last year’s ruling from the nation’s highest court, it might seem surprising that Montgomery, remorseful for the crime he committed more than five decades ago, is still languishing in prison. This is indeed outrageous, and it highlights the failings of our justice system, especially as it pertains to juveniles....
Henry Montgomery is living on borrowed time. He is a frail, soft-spoken, generous man. When it was lunchtime at the prison, I noticed that he wasn’t eating. When I asked why, he said he wasn’t sure there was enough food to go around. On the anniversary of the ruling that was supposed to bring him a chance of release, we owe it to Montgomery, as well as the thousands of others sentenced as youth to die in prison, to seek mercy on his behalf. We cannot give up until the day comes when children are never sentenced to life — and death — in prison.
Wednesday, February 01, 2017
"Say no to restorative justice for sex offenders"
The title of this post is the headline of this notable commentary published in The Hill authored by Michael Dolce. Here are some of the details:
The debate around the Senate’s possible confirmation of Betsy DeVos, President-elect Trump’s nominee for Education Secretary, should kick start a national discussion on how colleges and universities handle sexual assault. Recently, much of that conversation has revolved around “restorative justice,” programs that aim to respond to misconduct or crime by redressing the harm inflicted on victims and the community, rather than simply punishing offenders.
As a victim of childhood sexual abuse myself and an attorney who now represents sexual assault survivors every day, I can say without doubt that restorative justice is not only horribly insufficient for handling sexual abuse but, in many cases, actually serves to leave an offender free to offend again.
Whether as an alternative or a supplement to traditional discipline, restorative justice programs require offenders to make amends with victims — often with apologies and mediation — and participate in reformative programs like anger management or cultural sensitivity training, measures rarely imposed by the criminal justice system. In an education setting, employing these programs for offenses like racial harassment and alcohol misuse have had some success, leading to understandable calls from some criminal justice reform advocates and college administrators to expand their use to college sexual misconduct cases.
It’s true that our colleges and universities routinely fail victims of sexual assault, as last year’s abhorrent handling of the Brock Turner case at Stanford University reminded us. It’s also true, as the Chicago Tribune reported late last month, that the future of campus sex assault investigations under President Trump are “uncertain,” particularly since GOP convention platform calls for a reduced federal government role in investigations of campus sexual assault.
But, for several important reasons, restorative justice is not the answer for handling sex offenders. First, this method only works if offenders feel empathy when confronted with the impact of their misconduct.
According to prominent forensic psychology researchers Drs. Daryl Kroner and Adelle Forth, about half of convicted sex offenders exhibit psychopathology, meaning they are incapable of feeling remorse or empathizing with their victims. Sex offenders are often skilled at manipulating others into believing they are safe, which helps them gain their victims’ trust before attacking....
Second, advocates for restorative justice programs in this context often make the flawed assumption that sex offenders are similar to repeat offenders of other habitual offenses like drunk driving. But while underage drinking and alcohol abuse are certainly a common problem on university campuses, alcohol does not turn a college student into a sex offender. In fact, according to the National Institute on Alcohol Abuse and Alcoholism, some offenders actually drink alcohol before committing sexual assault specifically to later justify their behavior. Relying on restorative justice to ‘treat’ this group would be a dangerous validation of their criminal deceit.
The third common argument – that schools might be safe relying on restorative justice methods in cases of sexual harassment that don’t involve physical assault – is risky at best. Those who sexually harass others are objectifying and dehumanizing their victims, behavior that is often a prelude to assaults....
The reality is that I believe the majority of sex offenders are largely incapable of empathy. Two-thirds of male sex offenders will re-offend if they are not treated and restrained as criminals. The consensus among mental health and criminal justice professionals is that most sex criminals cannot be reformed; they can only be monitored, controlled and contained.
These are people who look at the tears and agony on victims’ faces, show no mercy and then quickly move on to their next victim. Restorative justice can be a wonderful tool for certain types of offenses, but let’s not ask victims of sexual assault to suffer an even greater burden by making them take part in their attackers’ so-called “reformation.”
Tuesday, January 31, 2017
"Delaying a Second Chance: The Declining Prospects for Parole on Life Sentences"
The title of this post is the title of this notable new report released today by The Sentencing Project. Here is the first part of the report's Executive Summary:
Amid growing public support for criminal justice reform, policymakers and criminal justice practitioners have begun to scale back prison sentences for low-level, nonviolent crimes. Although the results have been modest — a 5% reduction in the overall U.S. prison population between 2009 and 2015 — this shift follows almost four decades of prison expansion. But so far, criminal justice reform has largely excluded people in prison with life sentences. This growing “lifer” population both illustrates and contributes to the persistence of mass incarceration.
Most people serving life sentences were convicted of serious crimes. Their incarceration was intended to protect society and to provide appropriate punishment. But many were sentenced at a time when “life with the possibility of parole” meant a significantly shorter sentence than it has become today. Many remain incarcerated even though they no longer pose a public safety risk.
Researchers have shown that continuing to incarcerate those who have “aged out” of their crime-prone years is ineffective in promoting public safety. Long sentences are also limited in deterring future crimes given that most people do not expect to be apprehended for a crime, are not familiar with relevant legal penalties, or criminally offend with their judgment compromised by substance abuse or mental health problems. Unnecessarily long prison terms are also costly and impede public investments in effective crime prevention, drug treatment, and other rehabilitative programs that produce healthier and safer communities.
Despite this body of criminological evidence, the number of people serving life sentences has more than quadrupled since 1984 — a faster rate of growth than the overall prison population. Even between 2008 and 2012, as crime rates fell to historic lows and the total prison population contracted, the number of people serving life sentences grew by 12%. By 2012, one in nine people in U.S. state and federal prisons — nearly 160,000 people — were there under life sentences. Two factors have driven this growth: the increased imposition of life sentences, particularly those that are parole-ineligible, and an increased reluctance to grant parole to the 110,000 lifers who are eligible. MO
January 31, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)
Sunday, January 29, 2017
"A Better Approach to Violent Crime"
The title of this post is the headline given by the Wall Street Journal to John Pfaff's extended weekend commentary about crime and punishment in the United States. The subheadline provides a better summary of the themes of the extended essay: "If we’re going to end mass incarceration in the U.S., it will mean figuring out better ways to prevent violent crimes and to deal with those who commit them." John's analysis of modern mass incarceration is always in the must-read category, and here are some extended excerpts from this latest piece that help highlight why:
If we are serious about ending mass incarceration in the U.S., we will have to figure out how to lock up fewer people who have committed violent acts and to incarcerate those we do imprison for less time.
There is an obvious rejoinder, of course: Don’t we need to keep people convicted of violence locked up for long periods? Isn’t this how we’ve kept the crime rate down for so long? The answer to both of those questions is, “No, not likely.” Simply put, long prison sentences provide neither the deterrence nor the incapacitation effects that their proponents suggest. (There may be moral arguments for long sentences, but that is a separate issue from public safety.)...
Violence is a phase, not a state. People age into violent behavior and age out of it: A 24-year-old is more violent than a 7-year-old or a 60-year-old. It’s true that some people are more prone to violence than their peers, but almost everyone exhibits some sort of bell-curved trajectory of violence over their lives. Young men are simply more prone to violence than any other demographic group.
It is almost impossible, however, to predict how violent a young person will be in the future. Imposing harsh sanctions for a first violent act needlessly detains many people who are not serious future risks. In addition — and somewhat counterintuitively — by the time a person in his 30s has generated a long criminal history suggesting that he poses a continuing risk, he is likely to have started “aging out” of crime, violent behavior in particular.
A prominent study of hundreds of at-risk men that tracked their behavior from ages 7 to 70, for example, found that most started to engage in crime in their late teens and began to stop in their mid to late 20s. Only about 10% continued to offend consistently into their 30s, and only about 3% did so at high rates.
California has tested this proposition. Since 2012, the state has granted early release to over 2,000 people convicted under its harsh three-strikes law, and their recidivism rate has been about a 10th of the state average (4.7% vs. 45%) — due in no small part to the fact that those released early are often in their 40s and 50s and thus no longer likely to offend.
Whether aimed at younger or older defendants, lengthy incapacitation often imposes substantial, avoidable costs — not just on prison budgets but on society at large, which loses many people who might otherwise be productive citizens. A long prison sentence also undermines someone’s ability to find the stabilizing influence of a job or a spouse, thus increasing the long-run risk that he will reoffend.
The good news is that a growing number of proven tactics can keep violent crime low, and perhaps reduce it even further, without relying as much on prison. If governments lock up fewer people for violent crimes, they can use some of the savings to help fund these alternatives.
One widely adopted approach is what experts call “focused deterrence,” which was first tried, with great success, in Boston in the mid-1990s. Aimed at reducing the violence associated with gang membership, the program brings gang members together with the police, social-service providers and respected members of the local community. They are told that if violence continues, the police will crack down quickly and severely. Those who agree to put violence behind them, however, are offered help with housing, education, drug and alcohol treatment and other services, and community leaders make a moral plea to them. Such programs have had a significant effect on street violence in many places. Nine of the 10 high-quality studies that have been done on focused deterrence report strong impacts — a 63% decline in youth homicides in Boston, a 35% decline in murders among “criminally active group members” in Cincinnati and so on.
A related but less conventional approach called “Cure Violence” has been tried in New York City and Chicago (and even as far afield as Rio de Janeiro and Basra, Iraq). This program treats gun violence as a public-health problem: If left “untreated,” a shooting will be transmitted to another victim, thanks to retaliation. The idea is to interrupt that cycle, relying on people like former gang members (as opposed to the police) to help shooting victims and their friends and family find other, nonviolent ways to resolve the conflict.
Like focused deterrence, this approach also seeks to provide at-risk youth with access to resources, ranging from housing to entertainment. In New York City, a study conducted between 2010 and 2012 found that areas where Cure Violence operated had experienced 20% fewer shootings as compared with similar areas. Conversely, shootings in Chicago began to rise sharply shortly after a stalemate over the state budget resulted in a drastic cut in funding for Cure Violence in March 2015. The biggest increases in lethal violence occurred in those neighborhoods where the program had been used most widely.
Another key tactic is “hot-spot policing.” Crime is generally concentrated in particular neighborhoods. Some studies have found that half of all urban crimes take place in under 10% of all city blocks. In Chicago, nearly 45% of the increase in murders between 2015 and 2016 occurred in only five neighborhoods, home to just 9% of the city’s population. Hot-spot policing identifies these high-crime blocks and significantly increases patrols and community involvement there.
It has produced significant results, even in nearby neighborhoods not subject to increased enforcement, which suggests that people are not simply changing where they commit crimes. The Philadelphia Foot Patrol Experiment, for example, identified 120 blocks that had high levels of violent crime and then assigned additional patrol officers to 60 randomly selected blocks for three months. Hot spots with extra patrols experienced a 23% drop in violent crime relative to those that didn’t. A comprehensive review of the hot-spot literature found that 20 out of 25 tests reported “noteworthy crime control gains.”...
Prison, in short, is by no means the only effective way to respond to violent behavior. In fact, compared with these programs, prison is likely one of the least efficient approaches that we have. The declines in incarceration over the past six years are worth celebrating. But they are modest, in no small part because politicians are understandably afraid to confront a fundamental source of prison growth: our shortsighted policies on violent crime.
If we really hope to scale back our sprawling prison system, we must send fewer people to prison for violent crimes and keep those we do lock up for less time. Fortunately, we can preserve the tremendous reductions of violence we have experienced over the past 25 years with smarter, safer and more humane approaches.
January 29, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (2)
Thursday, January 26, 2017
Michigan Supreme Court to take up intersection of Apprendi and Miller for juve LWOP sentencing
This local article reports on the notable decision of the top court in Michigan to consider the procedures for deciding whether a juvenile murderer may be sentencing to life without parole. Here is the backstory:
The Michigan Supreme Court will hear arguments on whether a jury or a judge can decided to send youth offenders to prison for life. The court issued a decision to hear the arguments in the Tia Skinner case Tuesday, the latest decision that could impact youth-lifers across the state.
In August 2015, the Michigan Court of Appeals ruled the Yale woman convicted in the 2010 killing of her father and attempted murder of her mother should be sentenced by a jury after a hearing to prove beyond a reasonable doubt the killing reflects "irreparable corruption."
St. Clair County Prosecutor Mike Wendling challenged that ruling and asked the Supreme Court to intervene. He said the defense's argument is that a life sentence to a child is the same as a death penalty, which requires a jury to decide. "It's not the same as being put to death," Wendling said.
During the same period, a different panel from the court of appeals ruled a judge should be the one to decide on a life sentence in a juvenile case out of Genesee County. Because of the conflicting rulings, a special conflict panel was assembled by the court of appeals, and in July it ruled judges should handle the re-sentencings.
The legalities of how to re-sentence youth offenders follows the 2012 U.S. Supreme Court ruling that automatic life sentences to those under 18 constituted cruel and unusual punishment. That decision impacts four St. Clair County cases — Skinner, Raymond Carp, Michael Hills and Jimmy Porter....
If a jury is required to set the sentence, Wendling said his office will have to decide if the Skinner, Porter and Hills cases can be successfully recreated for a jury. He said victims and family will also weigh on that decision.
As the title of this post suggests, I think it is more the Apprendi line of jurisprudence than capital jurisprudence that really serves as a basis for contending a jury must make the key finding to permit a juve LWOP sentence. For complicated reasons, I do not think Apprendi must or even should be interpreted to impact Miller-required re-sentencings, but I can understand why some may be inclined to apply Apprendi and Miller this way.
Wednesday, January 25, 2017
"Pro-Con: Death Penalty Exemption For Severly Mentally Ill"
The title of this post is the label given by a Cleveland paper to these two dueling commentaries addressing the recommendation from the Ohio Death Penalty Task Force (on which I had the honor of serving) to create a statutory exemption from capital punishment for people with serious mental illnesses. Here are the headlines and links to the commentaries:
"Ohio should reform death penalty, not rush back to executions" by Mike Brickner (who is senior policy director of the American Civil Liberties Union of Ohio).
"Legal safeguards on death penalty for the mentally ill are already sufficient" by John Murphy (who is executive director of the Ohio Prosecuting Attorneys Association).
Friday, January 20, 2017
You be the judge: what federal sentence for "Dance Mom" star after her guilty plea to financial crimes?
I am not ashamed to admit that some years ago the reality show "Dance Moms" was a regular watch in the Berman home. My dancing daughters found engaging how the young dancers in the show stood up to the pressures created by teachers and parents; I was amazed at how the adult star, Abby Lee Miller, created a media sensation despite having no obviously distinctive talents. But now, as this local article highlights, headlined "'Dance Moms' TV star faces sentencing in federal court," Abby Lee Miller is now of interest to me for a very different reason. Here are the details:
“Dance Moms” TV star Abby Lee Miller, convicted of hiding assets from bankruptcy court and sneaking cash into the U.S. to conceal it, says she shouldn’t go to federal prison. Ms. Miller, whose real name is Abigale Miller, is asking U.S. District Judge Joy Flowers Conti for probation.
But the government says she has shown no respect for the law — at one point she sent an email to her accountant using a vulgar term in referring to the bankruptcy judge handling her case — and deserves the two years to 30 months called for by federal sentencing guidelines.
Ms. Miller’s sentencing will start today. A second day has been set aside to finish it on Feb. 24. The unusual format was necessary because the sentencing is likely to be contentious enough to require two days and the judge also is handling the ongoing drug trial of former Pittsburgh Steelers doctor Richard Rydze.
Ms. Miller became a federal felon in June when she pleaded guilty to concealing assets from her TV show from federal bankruptcy court in Pittsburgh. She also admitted that she sneaked cash into the country in plastic bags stuffed into luggage after returning from dance trips in Australia. In pre-sentencing filings, Ms. Miller gave an accounting of her past, saying her family-run Penn Hills dance studio was in financial trouble in the late 2000s because of her lack of financial knowledge and a drop in enrollment caused by the global economic crisis and the decline of Penn Hills. She declared bankruptcy in 2010.
But when her reality TV show took off in 2011, she and her lawyer said, she suddenly became a star and didn’t know how to handle the fame that it brought. She soon became overwhelmed. “She was simply ill-equipped to manage her good fortune,” wrote attorney Brandon Verdream. He said she always intended to pay off her creditors at 100 percent and has admitted that what she did was wrong. “It was a foolish decision to skirt the law and she has accepted a felony conviction as the wages of her frivolity,” Mr. Verdream wrote.
He and Ms. Miller, who had been splitting time among homes in California, Florida and Penn Hills, also pointed to all of the people she has helped over the years as one reason she should not be jailed, including the 40-some dancers she has trained who went on to professional careers on Broadway and elsewhere. Mr. Verdream presented many letters on her behalf and asked Judge Conti to impose a “non-custodial” sentence.
But federal prosecutors say the guidelines don’t allow for probation and Ms. Miller’s calculated conduct warrants time behind bars. Assistant U.S. Attorney Greg Melucci said that Ms. Miller had numerous opportunities during her bankruptcy to set the record straight about her assets, yet chose to lie repeatedly.
Among his exhibits are emails and texts she sent showing her contempt for the court and her intent to hide income even after warnings. After being dressed down by U.S. Bankruptcy Judge Thomas Agresti in February 2013, for example, she sent an email to her accountant describing the judge using a derogatory term and complaining that he hated her because he was making her pay all of her creditors back at once.
Judge Agresti showed plenty of irritation at Ms. Miller as her schemes became apparent, Mr. Melucci said. At one hearing in 2012, he found out she hadn’t revealed her income from 2012 and had also struck TV show contracts without disclosing them in an amended bankruptcy plan. After she complained that she didn’t even know about the contracts, he’d had enough. “And she can shake her head and protest all she wants and go through her TV face, that’s not going to affect me, ma’am, and I’d prefer you stop it, OK?” the judge told her. “Let’s be a little stoic here. These are very serious problems you have, and a failure to disclose.”
Mr. Melucci also said her attempt to transport cash into the U.S. shows that she continued “her scheming ways” even after being caught hiding assets from bankruptcy. “It is apparent that Miller is not easily deterred by the threat of criminal prosecution,” he wrote, “even standing before a federal judge.” Judge Agresti discovered Ms. Miller’s fraud by chance. He said he was channel-surfing one night, came across her TV performances and realized she had more money than she was revealing in her Chapter 11 filings.
The U.S. Attorney’s office said she tried to hide about $755,000 from the bankruptcy trustee. In the other case, prosecutors said she did not report money that she transferred from Australia into the U.S. after trips there in 2014 to conduct dance instruction classes before large audiences. Mr. Melucci said she and her entourage brought back about $120,000 in cash tucked into Ziploc bags in amounts less than $10,000 and hidden in their luggage. Among the government’s exhibits is a photo of the cash bundles seized.
Monday, January 16, 2017
SCOTUS to confront implication for immigration statute of Johnson vagueness ruling
On Tuesday, the Supreme Court is scheduled to hear oral argument in Lynch v. Dimaya, which comes to the Justices as part of the aftermath of their big 2015 Armed Career Criminal Act vagueness ruling in Johnson v. United States. Over at SCOTUSblog here, Kevin Johnson has this preview of the case. It starts this way:
The U.S government targets noncitizens with criminal convictions for removal from the United States. These efforts have allowed President Barack Obama’s administration to deport approximately 2.5 million noncitizens during Obama’s eight years in office, more than any other president in American history. On several recent occasions, the Supreme Court has found that the administration went too far and has set aside orders of removal of criminal offenders that it has found to be inconsistent with the immigration statute. For example, in Mellouli v. Lynch, in 2015, the court held that a state misdemeanor conviction for possession of drug paraphernalia did not justify removal. In 2013, in Moncrieffe v. Holder, the justices found that a lawful permanent resident’s conviction for possession of a small amount of marijuana — now legal in many states — did not mandate removal. Next week, the Supreme Court will hear oral argument in Lynch v. Dimaya, another criminal-removal case, but one with potentially far-reaching constitutional implications.
A noncitizen, including a lawful permanent resident, who is convicted of an “aggravated felony” is subject to mandatory removal. The Immigration and Nationality Act defines “aggravated felonies” expansively to include crimes, including some misdemeanors, that run the gamut from murder to virtually any drug and firearm offense. That definition incorporates 18 U.S.C. §16(b), known as the “residual clause,” which defines a “crime of violence” to encompass “any … offense that is a felony and 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.”
In 2015, in Johnson v. United States, the court, in an opinion by Justice Antonin Scalia, struck down as unconstitutionally vague the Armed Career Criminal Act’s definition of “violent felony,” which included crimes that “involve conduct that presents a serious potential risk of physical injury to another.” The Johnson court held that the statutory language “fail[ed] to give ordinary people fair notice of the conduct it punishes, [and was] so standardless that it invite[d] arbitrary enforcement.”
Born in the Philippines, James Garcia Dimaya has lived in the United States as a lawful permanent resident since 1992. Based on Dimaya’s two California burglary convictions, the U.S. government sought to remove him from the United States. Finding that burglary was a “crime of violence” under Section 16(b)’s residual clause and thus an “aggravated felony,” an immigration judge ordered Dimaya removed. The Board of Immigration Appeals agreed. In a rare decision finding a removal provision of the U.S. immigration laws to be unconstitutional, the U.S. Court of Appeals for the 9th Circuit concluded that Section 16(b) was void for vagueness.
Sunday, January 15, 2017
Nebraska Supreme Court decides "undocumented status" can be proper, but not conclusive, sentencing factor when deciding on probation sentence
As reported in this local article, headlined "Immigration status can be used to help decide sentencing, Nebraska Supreme Court says," the top court in the Cornhusker State handed down an interesting ruling late last week. Here is the effective press summary of the decision:
A person’s immigration status can be considered when deciding if someone should be sentenced to probation rather than jail, though it cannot be the sole factor, the Nebraska Supreme Court ruled Friday. It was the first time the state’s highest court has weighed in on the issue of whether criminal defendants can be denied probation solely because they are in the country illegally.
Jose Cerritos-Valdez had appealed after being sentenced to 230 days in jail and a $500 fine for two misdemeanors, attempted possession of a controlled substance and driving under the influence. His driving privileges were revoked for one year.
During sentencing, Sarpy County District Judge David Arterburn expressed reluctance to sentence Cerritos-Valdez to probation. One condition of probation is to obey all laws, and to do that, the judge said, would require Cerritos-Valdez to leave the country, because he was in the United States illegally. Arterburn also said he’d like to get some guidance on the issue from a higher court.
The Supreme Court’s ruling, written by Judge Stephanie Stacy, said that while this is an unsettled area of law, a consensus has formed in other courts that defendants cannot be denied probation solely because they are in the country illegally.
The full ruling in Nebraska v. Cerritos-Valdez is available at this link, and here is the heart of the court's nuanced analysis (with footnotes/cites removed):
This case presents the narrow question of whether a defendant’s undocumented status is a relevant consideration when determining whether to grant or deny probation. We have not previously considered this question, but other courts have.
While the law in this area is not well settled, a consensus has developed that it is impermissible for a sentencing court to deny probation based solely on a defendant’s undocumented status. Beyond that broad proposition, courts differ on when, or for what purpose, a sentencing judge may properly consider a defendant’s undocumented status when deciding whether to impose probation.
Generally, in discussing whether it was proper to consider a defendant’s undocumented status in connection with deciding whether to impose a sentence of probation, other courts have focused on whether the defendant’s status implicated other relevant sentencing considerations. For instance, some courts have held it is appropriate to consider the effect of a defendant’s undocumented status on his or her ability or willingness to comply with conditions of probation. Other courts have reasoned that a defendant’s undocumented status or a history of repeated illegal reentry into the U.S. may demonstrate an “unwillingness to conform his or her conduct to the conditions of probation” or show that a probation sentence would not “be at all effective” for that defendant. Still others have held that the undocumented status of defendants may be considered as it relates to their criminal history. At least one court has noted that a defendant’s undocumented status is properly considered as it relates to the defendant’s employment history or legal employability. And we note that in some instances, defendants have specifically asked the sentencing court to consider their undocumented status, arguing it would be error not to consider it.
Based on the foregoing, we agree that a defendant’s status as an undocumented immigrant cannot be the sole factor on which a court relies when determining whether to grant or deny probation; however, a sentencing court need not ignore a defendant’s undocumented status. When deciding whether to grant probation, a defendant’s undocumented status may properly be considered by a sentencing court as one of many factors so long as it is either relevant to the offense for which sentence is being imposed, relevant to consideration of any of the required sentencing factors under Nebraska law, or relevant to the defendant’s ability or willingness to comply with recommended probation conditions.
Friday, January 13, 2017
New ACLU report details unique harms of solitary confinement for prisoners with physical disabilities
The American Civil Liberties Union has released this big report to spotlight particular problems for a particular prison population subject to solitary confinement. The ACLU report is titled "Caged In: Solitary Confinement's Devastating Harm on Prisoner's With Physical Disabilities," and here is how the report is summarized at this webpage:
This report provides a first-ever national ACLU account of the suffering prisoners with physical disabilities experience in solitary confinement. It spotlights the dangers for blind people, Deaf people, people who are unable to walk without assistance, and people with other physical disabilities who are being held in small cells for 22 hours a day or longer, for days, months, and even years. Solitary confinement is a punishing environment that endangers the well-being of people with physical disabilities and often violates the Americans with Disabilities Act. The report’s revelations about the particular harms of solitary on people with physical disabilities shows the urgent need for far better accounting of the problems they face and the development of solutions to those problems.
Thursday, January 12, 2017
New report spotlights five Florida counties often condemning to death murderers have mental impairments
A few weeks ago, as noted in this prior post, Harvard Law School's Fair Punishment Project (FPP) released a report detailing and lamenting the composition of Oregon's death row under the title "Oregon’s Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments." Today, FPP has this new report bringing a similar analysis and criticism to a portion of a different state. This new report is titled "Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments in Five Florida Counties," and here are excerpts from the introduction:
The Florida Supreme Court recently held that the state’s capital punishment statute is unconstitutional. Approximately 380 people sentenced to death under the now-invalidated sentencing scheme remain on the death row. While litigation is still pending over whether the decision applies to all Florida death sentences, the Court has clarified that the approximately 150 people who were convicted after the Ring v. Arizona decision in 2002 must have their sentences reconsidered. Roughly one-third of these individuals convicted since 2002 come from just five of Florida’s 67 counties: Duval, Miami-Dade, Hillsborough, Orange, and Pinellas.
This report examines the 48 invalidated death sentences from these five Florida counties. We examined legal pleadings and opinions, trial testimony, and media reports, and consulted with several legal experts in Florida who are familiar with the individuals on death row.
Our research revealed that 63 percent of these individuals exhibit signs of serious mental illness or intellectual impairment, endured devastatingly severe childhood trauma, or were not old enough to legally purchase alcohol at the time the offense occurred. The pervasiveness of these crippling impairments among Florida’s death row population is significant when evaluating whether the death penalty was the appropriate sentence. Although all murders are gruesome and deserving of serious sanction, the Constitution limits the death penalty to the most heinous murders. Even then, the Constitution and established Supreme Court doctrine have limited application of the death penalty to adults who exhibits mental and emotional functioning that is equal to or exceeds that of the typically developed adult. So, for example, the U.S. Supreme Court has held that, regardless of the severity of the crime, the death penalty cannot be imposed upon a juvenile or an intellectually disabled person, both classes of individuals who suffer from impaired mental and emotional capacity relative to typically developed adults. To do otherwise would be so disproportionate as to violate his or her “inherent dignity as a human being.”
Sunday, January 08, 2017
"Mending the Federal Sentencing Guidelines Approach to Consideration of Juvenile Status"
The title of this post is the title of this notable new Harvard Law Review note. It gets started this way:
In a series of recent cases, the Supreme Court has reaffirmed the profound significance of a juvenile offender’s age in sentencing, seemingly rendering youth status a mandatory sentencing consideration as a constitutional matter — in at least some cases — and under the statutory sentencing directive. Still, as a matter of policy, the Federal Sentencing Guidelines (Guidelines) — the required starting point for sentencing courts in federal cases and the benchmark for assessing the reasonableness of a sentence for appellate courts — discourage consideration of an offender’s youth and related circumstances in determining whether to depart from the recommended statutory sentencing range. Though after United States v. Booker the Guidelines have been advisory only, the Court has recognized that even advisory Guidelines can, at times, exert an impermissible anchoring effect on sentencing courts.
This Note argues that Congress and the United States Sentencing Commission (Commission) should take seriously both the letter and spirit of the Court’s recent juveniles-are-different cases, which favor a return to a rehabilitative approach to young offenders. Congress should address apparent conflicts between its statutory sentencing schemes and these recent cases by expanding the range of sentencing options for juvenile offenders convicted in federal court, and the Commission should promulgate new rules regarding calculation of sentences for juveniles convicted as adults in federal court. Further, until such rules are promulgated, this Note contends that appellate courts should hesitate to presume reasonable within-Guideline sentences for juvenile offenders absent evidence that a sentencing court has considered age.
This Note proceeds in four parts. Part I provides a brief history of the Guidelines, from development through the Court’s attempts to clarify their place post Booker. Part II describes the history of the treatment of juvenile offenders in federal courts and details the Court’s recent juveniles-are-different sentencing jurisprudence. Part III argues that, for various reasons of law and policy, both Congress and the Commission should offer new guidance on how courts should approach the process of sentencing juvenile offenders convicted as adults. Finally, Part IV recommends statutory changes and amendments to the Guidelines.
Wednesday, January 04, 2017
Louisiana public defenders lacking resources needed to adequately prepare for Miller resentencings in old juve LWOP cases
This interesting local article highlights the economic challenges posed for some local courts and lawyers when now having to implement retroactively the Supreme Court's Miller ruling precluding mandatory LWOP sentences for juvenile murderers. The article is headlined "'Unfunded mandate' of individualized sentencing hearings for some juveniles causing headaches for public defenders," and here are excerpts:
A 2012 U.S. Supreme Court decision ruled out laws mandating life without parole for juveniles as unconstitutional, and a subsequent decision last year made that ruling retroactive. Now, those juveniles are required to get what’s called “individualized sentencing hearings” before such a harsh sentence can be handed down, said Carol Kolinchak, a compliance officer for the Louisiana Public Defender Board.
And those hearings take resources. “You have to investigate and develop evidence (about) the youth and the circumstances surrounding the crime,” Kolinchak told [Judge Arthur] Hunter, adding that it is the defense’s “ethical obligation” to make sure each juvenile offender gets a proper investigation into their backgrounds prior to their hearing.
But, she added, the mandate isn’t cheap, and it’s also unfunded. At a cost of $60,000 to $75,000 a client, both [Orleans Parish Chief Public Defender Derwyn] Bunton and State Public Defender Jay Dixon said they were at a loss for how to properly prepare for each client’s sentencing hearing.
According to Kolinchak, there are nearly 300 juveniles eligible for such individualized hearings throughout the state. “The question in Louisiana is the same as it is nationally, which is that it has really been an unfunded mandate,” she said. “It places burdens on defense counsel with no discussion of funding.”
The issue came up in Hunter’s courtroom Tuesday in the case of Joseph Morgan, a defendant convicted in 2015 of second-degree murder in the death of Gervais "Gee" Nicholas, a teenager gunned down in 2008 outside the Chat Club at Tulane Avenue and South Lopez Street. Morgan was 16 at the time of the shooting, but prosecutors are nevertheless seeking life without parole.
Defense attorney Tom Shlosman, who is representing Morgan pro bono, told the judge he doesn't have the resources for the elaborate proceedings now required in Morgan's case. The other officials who testified before Hunter were brought in to help bolster the broader case that more money needs to be set aside statewide to handle these types of defendants....
In New Orleans, the question is how to proceed with about 72 cases that now qualify for a so-called “Miller hearing,” Kolinchak said. On Tuesday, both Bunton and Dixon said they didn’t anticipate being able to pay for those hearings, at least for indigent clients, anytime soon, because there’s no money available to properly investigate possible mitigating circumstances for those clients.
Dixon said the state public defender’s budget has been “stagnant” at about $33 million for the past several years. Moreover, he said, the threat of a 5 percent cut to his budget looms ahead, a move he said would be “devastating” for both death penalty cases and juvenile cases like Morgan’s. That’s because Dixon's office is required to distribute about 65 percent of its budget to district defenders' offices throughout the parishes, and so the cuts would have to come from the more complex pool of cases that his office contracts out to other law firms.
Bunton said he has to stretch an $8 million budget to cover nearly 22,000 cases a year — a situation that he said leaves him no room for taking on new work like individualized sentencing hearings for indigent juveniles....
“We don’t have an answer. This is the kind of thing that funding or lack of funding creates,” Dixon said. “You’re talking about basically a juggling act with a lack of funds. And we’re both in that trick box. We do not have an answer for that.”
Monday, January 02, 2017
Understanding why Dylann Roof will not present penalty phase evidence at his capital trial
Last week in this post I noted the news that Dylann Roof, at a hearing before the penalty phase of his capital trial, told the district judge that "he doesn't plan to call any witnesses or present evidence to ask a jury to spare his life." This new New York Times article, headlined, "Dylann Roof Himself Rejects Best Defense Against Execution," provides some explanatory backstory. Here is how the lengthy piece begins:
Twenty-two pages into the hand-scribbled journal found in Dylann S. Roof’s car — after the assertions of black inferiority, the lamentations over white powerlessness, the longing for a race war — comes an incongruous declaration.
“I want state that I am morally opposed to psychology,” wrote the young white supremacist who would murder nine black worshipers at Emanuel A.M.E. Church in Charleston, S.C., in June 2015. “It is a Jewish invention, and does nothing but invent diseases and tell people they have problems when they dont.”
Mr. Roof, who plans to represent himself when the penalty phase of his federal capital trial begins on Tuesday, apparently is devoted enough to that proposition (or delusion, as some maintain) to stake his life on it. Although a defense based on his psychological capacity might be his best opportunity to avoid execution, he seems steadfastly committed to preventing any public examination of his mental state or background.
“I will not be calling mental health experts or presenting mental health evidence,” he wrote to Judge Richard M. Gergel of Federal District Court on Dec. 16, a day after a jury took only two hours to find him guilty of 33 counts, including hate crimes resulting in death, obstruction of religion and firearms violations. At a hearing on Wednesday, Mr. Roof told the judge that he planned to make an opening statement but not call witnesses or present evidence on his behalf.
The testimony presented by prosecutors during the guilt phase of Mr. Roof’s trial detailed with gruesome precision how he had plotted and executed the massacre during a Wednesday night Bible study in the church’s fellowship hall. It was less satisfying in revealing why he had done it. With his choice to sideline his legal team and represent himself, the second phase — when the same jury of nine whites and three blacks will decide whether to sentence him to death or to life in prison — may prove little different.
Death penalty experts said it was exceedingly rare for capital defendants to represent themselves after allowing lawyers to handle the initial part of a case. Mr. Roof, who also faces a death penalty trial in state court, has not publicly explained his reasoning. But legal filings strongly suggest a split with his court-appointed defenders about whether to argue that his rampage resulted from mental illness.
Friday, December 30, 2016
Third Circuit reverses (short) sentence based in part on "bare arrest record" ... JAN 3, 2017 UPDATE: Opinion VACATED at "the direction of the Court" ... AND on Jand 9, 2017 the opinion returns
A number of helpful readers made sure I did not miss the significant sentencing opinion handed down by a Third Circuit panel in US v. Mateo-Medina, No. 15-2862 (3d Cir. Dec. 30, 2016) (available here). Here is how the opinion starts:
Maximo Mateo-Medina appeals his sentence of twelve months plus one day imprisonment for illegally reentering the United States, in violation of 8 U.S.C. § 1326(a) and (b)(1). Although Mateo-Medina pled guilty to the offense, he now appeals the sentence, arguing that the sentencing court violated his Due Process Clause rights by impermissibly considering, among other things, arrests that did not result in convictions. The Presentence Investigation Report (PSR) that disclosed those arrests did not contain any of the underlying conduct. For the reasons set forth below, we agree and we will therefore vacate the sentence that was imposed and remand for resentencing.
The opinion includes citations to considerable research regarding "disparities in arrest rates," and it ultimately holds that the district court's sentencing decision amounted to plain error in a final section which notes that "calculating a person’s sentence based on crimes for which he or she was not convicted undoubtedly undermines the fairness, integrity, and public reputation of judicial proceedings."
UPDATE on January 3, 2017: Another helpful reader today sent me this link to a one-page Third Circuit order which reads: "At the direction of the Court, the opinion and judgment entered on December 30, 2016 are hereby VACATED." Hmmm.
ANOTHER UPDATE on January 9, 2017: I was again alerted by a helpful reader that, as evidenced here, US v. Mateo-Medina, No. 15-2862 is back and seemingly as good as ever. Color me confused and curious, but ultimately pleased to learn that this seemingly sensible opinion remains good law.
Saturday, December 24, 2016
Louisiana appeals court find LWOP sentence unconstitutionally excessive for fourth minor offense
As reported in this lengthy local article, headlined "Appeals court vacates 'unconscionable' life sentence for New Orleans man over theft of $15 from 'bait vehicle'," this past week brought a notable state constitutional ruling from the Louisiana Fourth Circuit Court of Appeal. Here are the basics from the press report:
Walter Johnson was walking down a street in Uptown New Orleans a week before Thanksgiving in 2013 when he noticed a Jeep Cherokee with the driver's side window down. He glanced inside and saw a laptop and $15 in cash -- a $10 bill and a $5. Johnson snatched the bills. He left the computer.
As it turns out, the Jeep was a law enforcement "bait vehicle," and Johnson was the catch of the day. He was found guilty of simple burglary and illegal possession of stolen things at a trial in April 2015, and Orleans Parish District Attorney Leon Cannizzaro's office promptly invoked the state's habitual-offender law.
Johnson, who had prior convictions for simple burglary, heroin possession and cocaine distribution, was deemed a four-time felon. Criminal District Court Judge Karen Herman sentenced him in October 2015 to a mandatory life prison term with no parole.
But on Wednesday, an appeals court panel threw out Johnson's life sentence, finding his street heist "shockingly minor in nature," the amount "extraordinary in its triviality" and Johnson's life sentence an "unconscionable" punishment that "shocks our sense of justice." The appeals court sent the case back to Herman, telling her to resentence Johnson "to a term that is not unconstitutionally excessive."
The 10-page opinion, written by 4th Circuit Court of Appeal Judge Paul Bonin, marks the latest bid to limit the discretion that state law grants prosecutors to ratchet up sentences for low-level drug offenders and other nonviolent criminals with multiple convictions.
Judges have little control over such decisions, and the Louisiana Supreme Court has been loath to step on the Legislature's toes by overriding one of the nation's stiffest habitual-offender laws. The state's high court has ruled that departures below the law's mandatory minimum sentences must be limited to "exceedingly rare" cases.
But occasionally it has seen fit to do so. Last year, for instance, the Supreme Court found a 30-year sentence "unconscionable" for Doreatha Mosby, a 73-year-old New Orleans woman who was found with a crack pipe tucked in her bra. Yet in the case of Bernard Noble, a father of seven who was found with the equivalent of two joints of marijuana, the court found he wasn't unusual enough to allow a sentence below the mandatory 13-year minimum under the statute.
Both of those cases, as well as Johnson's, came out of Orleans Parish, where Cannizzaro employs the habitual-offender law far more than any other prosecutor in the state. In 2015, Cannizzaro's office sent 154 convicts off to long prison sentences under the statute — almost one of every four offenders who were shipped to state prisons from New Orleans that year, according to state data analyzed by the Pew Charitable Trusts.
"You're dealing with different crime problems, socioeconomic levels, and you're dealing with different judges, different sentencing dispositions," Christopher Bowman, a spokesman for Cannizzaro's office, said in explaining the office's penchant for deploying the statute. "If you were dealing with a situation where a prosecutor feels probation is being given too freely, then the district attorney is required to use the habitual-offender law."
The full majority ruling in Louisiana v. Johnson is available at this link. Notably, the rule s based on the Louisiana state constitutional provision prohibiting "cruel, excessive, or unusual punishment." La. Const. art. 1, § 20. Here is one notable passage (with some cites removed) from the Johnson decision:
Despite its legality, however, we find the life-without-parole sentence imposed upon Mr. Johnson unconstitutionally excessive. Mr. Johnson reached into the open window of a bait-vehicle and took fifteen dollars. He is now condemned to die in prison for that crime.
We acknowledge that Mr. Johnson's life sentence, under the habitual offender law, is intended as punishment not only the current conviction, but all prior convictions as well. Legitimate sentencing goals notwithstanding, Mr. Johnson's status as a fourth felony offender "cannot be considered in the abstract." Solem, 463 U.S. at 296. As previously noted, the trial judge found that all his prior felonies were for nonviolent crimes. And the instant offense, the one which set in motion the habitual offender proceedings, is shockingly minor in nature. No person was harmed, nor any property damaged. Had Mr. Johnson taken the fifteen dollars but not by entry into a vehicle or other structure listed in the simple burglary statute, he would have been convicted of misdemeanor theft.
Reviewing the unique issues and challenges for sentencing ISIS sympathizers
A helpful colleague made sure I did not miss this interesting new Wall Street Journal article headlined "ISIS Sentences Pose Challenge for Judges." The subheadline highlights the main theme of the piece, "U.S. judges grapple with how to punish young Islamic State sympathizers who could become more dangerous after decades in prison," and here are excerpts:
Federal judges this year faced the unprecedented challenge of sentencing dozens of Islamic State supporters across the country, with punishments ranging from no prison time to decades behind bars.
In Minnesota, 20-year-old Khaalid Abdulkadir received three years probation for tweeting threats to kill federal law-enforcement officers after one of his friends had been arrested for providing support to Islamic State. In Ohio, 22-year-old Christopher Cornell received 30 years in prison for plotting to attack the U.S. Capitol in Washington on the terrorist group’s behalf.
The wide range reflects the difficult question at sentencing in many of these cases: Should judges give young Americans who support Islamic State a chance to turn their lives around, or a lengthy prison sentence to ensure public safety?
For the most part, judges are choosing to be cautious, although some have begun considering alternatives to prison. Of the 39 Islamic State defendants who have been sentenced so far, the average prison sentence has been 13 years, according to Fordham University’s Center on National Security.
Since 2014, more than 110 suspected Islamic State sympathizers have been prosecuted in the U.S. for a broad array of criminal activities, including making false statements to the government and traveling overseas to fight with terrorists. Roughly half of these cases have resulted in convictions, while the other half are pending, according to Fordham. Several sentencings are scheduled to happen next year, including one in Brooklyn, N.Y., for Tairod Pugh, who was the first Islamic State sympathizer in the U.S. to be convicted at trial.
No Islamic State supporter in the U.S. has received a life sentence yet. Most defendants are arrested before they commit violence and charged with providing “material support” to terrorists, which carries a maximum 20-year sentence....
More than a quarter of the sentences have occurred in Minneapolis, whose large Somali population has been a target in recent years for terrorist recruitment. In an unprecedented move, one federal judge there, Michael J. Davis, last summer asked six defendants to undergo an evaluation before sentencing to see if they could be good candidates for a “deradicalization” program.
Judge Davis ultimately allowed only one defendant, 20-year-old Abdullahi Yusuf, to be released to a halfway house, where he could receive counseling and family group therapy. For another defendant, 22-year-old Guled Omar, who was convicted at trial of conspiring to commit murder in Syria, Judge Davis imposed 35 years in prison, the harshest sentence so far in an Islamic State case.
The deradicalization effort has caught the attention of judges around the country. In Anaheim, Calif., a federal judge in October raised the possibility of assigning such a program to 26-year-old Muhanad Badawi, who was convicted at trial for helping a friend who wanted to join Islamic State overseas. Mr. Badawi ultimately received 30 years in prison.
Most Islamic State defendants are between the ages of 18 and 26 at the time of their arrest, which means many of them don’t have a criminal history and could become more dangerous after decades in prison, some lawyers say. On average, Islamic State supporters under the age of 21 have been receiving lighter sentences, according to Fordham.
Still, most judges tend to impose the harshest sentence possible under the law for terrorist defendants. Terrorism, unlike other types of violent offenses, is a crime in which law-enforcement officials feel there can be no room for error. No judge wants to be the one who gave a lenient sentence to someone who ends up committing a terrorist attack.
Thursday, December 22, 2016
Split Ohio Supreme Court concludes Graham violated by term-of-years juve sentence that exceeds life expectancy
The holiday season is often a time that brings some interesting sentencing ruling, and this year the jurisprudential present under my tree comes from my own Ohio Supreme Court in Ohio v. Moore, No. 2016-Ohio-8288 (Ohio S. Ct. Dec. 22, 2016) (available here). Here is how the lengthy majority opinion in Moore gets started and concludes:
We decide in this case whether the United States Supreme Court’s holding in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), prohibiting the imposition of sentences of life imprisonment without parole on juvenile nonhomicide offenders also prohibits the imposition of a term-of-years prison sentence that exceeds the offender’s life expectancy on a juvenile nonhomicide offender. We hold that pursuant to Graham, a term-of-years prison sentence that exceeds a defendant’s life expectancy violates the Eighth Amendment to the United States Constitution when it is imposed on a juvenile nonhomicide offender.
We hold in this case that Graham’s categorical prohibition of sentences of life imprisonment without the possibility of parole for juveniles who commit nonhomicide crimes applies to juvenile nonhomicide offenders who are sentenced to term-of-years sentences that exceed their life expectancies. The court of appeals abused its discretion in failing to grant Moore’s application for reconsideration. The 112-year sentence the trial court imposed on Moore violates the Eighth Amendment’s prohibition against cruel and unusual punishments. We reverse the judgment of the court of appeals and vacate Moore’s sentence, and we remand the cause to the trial court for resentencing in conformity with Graham.
Interestingly, Chief Justice Maureen O'Connor appears to have been the key swing vote here on a court that split 4-3, and her lengthy concurring opinion concludes this way:
Graham is one of the most momentous decisions in American juvenile law. Given its significance, the stated intention of the sentencing judge in this case, the de facto life sentence he imposed, and the curtness with which the court of appeals denied Moore’s application to reconsider his sentence in light of Graham, I conclude that the appellate court abused its discretion in refusing to consider Moore’s claim. The court was not bound to accept his arguments, but it was bound to consider them more thoughtfully after allowing the application for delayed reconsideration.
I concur fully in the majority opinion, which addresses the significant constitutional question that is properly before us and which holds that the court of appeals abused its discretion in failing to recognize that extraordinary circumstances were presented by Moore’s application, i.e., the unconstitutional imposition of a lengthy term-of-years sentence on a juvenile offender.
Wednesday, December 21, 2016
"The American Bar Association's Criminal Justice Mental Health Standards: Revisions for the Twenty-First Century"
The title of this post is the title of this notable new paper authored by Christopher Slobogin and now available via SSRN. Here is the abstract:
This article is an examination of the American Bar Association’s newly adopted Criminal Justice Mental Health Standards, organized around three goals that permeate the Standards. The first goal is ensuring that people with mental disabilities who encounter the criminal justice system are treated humanely and fairly. Achieving this goal requires a delicate balance between providing the treatment necessary to ensure the safety and health of these individuals and avoiding interventions that are not legally necessary. A second goal is to promote reliable case outcomes. This goal requires substantive doctrines that recognize the mitigating impact of mental disabilities and an adequate evaluation system that permits clinicians to gather the information they need to address legal questions; treatment is an important element of this goal as well when necessary to enable a defendant's meaningful participation in the legal proceedings. The third goal is to honor the autonomy of people with mental disabilities by ensuring their desires and decisions are accorded appropriate respect by their own lawyers and the rest of the criminal justice system. The Standards adopt the position that competent defendants should have the power not only to participate but also to control the most important aspects of their cases.
Tuesday, December 20, 2016
New report spotlights that majority of condemned Oregon murderers have mental impairments
In this post earlier this year, I noted the initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP). And, as regular readers now know, FPP is now regularly producing notable reports and research on the administration of various sentencing systems in various parts of the nation. The latest report from FPP is titled "Oregon’s Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments," and here are parts of the start and heart of the document:
Oregon retains capital punishment mostly as an exorbitantly expensive legal fiction. In practice, as U.S. Supreme Court Justice Anthony Kennedy recently noted, the State falls on the abolitionist “side of the ledger” because “Oregon has suspended the death penalty and executed only two individuals in the past 40 years.” More revealing still: Over the past 10 years, Oregon juries have imposed an average of just one death sentence per year, which translates into less than 1.25% of homicides, a rate far lower than that which prevailed nationally in 1972 when U.S. Supreme Court Justice Byron White concluded that the infrequent use of the death penalty meant that the punishment had “ceas[ed] to be a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system.” By all functional measures, Oregonians have abandoned the death penalty.
And yet, 35 condemned inmates remain on Oregon’s death row. What do we know about those people, and about the quality of justice that resulted in their death sentences? This report examines the cases of the condemned men and women in Oregon to see how they ended up there, and what patterns, if any, emerged. We examined legal pleadings and opinions, trial testimony, and media reports, and consulted with several legal experts in Oregon who are familiar with the individuals on death row.
Here’s what we found: In Oregon, two-thirds of death row inmates possess signs of serious mental illness or intellectual impairment, endured devastatingly severe childhood trauma, or were not old enough to legally purchase alcohol at the time the offense occurred. The pervasiveness of these crippling impairments among Oregon’s death row population is important because though all murders are gruesome and deserving of serious sanction, the Constitution limits the death penalty to the most heinous murders; and even then only when the person who commits the crime is someone who appears to be more culpable than the typically developing adult....
Our research indicates that approximately one-quarter of individuals on Oregon’s death row may have some form of intellectual disability or brain damage. Nine of the 35 (26%) presented evidence of significantly impaired cognitive functioning as evidenced by low IQ scores, frontal lobe damage, and fetal alcohol syndrome....
Approximately one out of every four individuals on Oregon’s death row exhibits symptoms of mental illness, or has a confirmed diagnosis. Some exhibited signs of psychotic disorders with delusions and hallucinations at the time of the crime, one had been in a state run treatment program for individuals with mental illness, and another had signs of post-traumatic stress disorder. Furthermore, the vast majority of the individuals exhibiting signs of mental illness, also presented evidence of secondary impairments such as intellectual disability, extreme childhood trauma, and youthfulness....
[A]pproximately one-third of Oregon’s death row prisoners suffered some form of severe childhood or emotional trauma. One individual was born in prison, another suffered childhood sexual abuse, and several of the individuals were in and out of the foster care system. In many cases, this trauma led to, or was compounded by, other disabilities, such as fetal alcohol syndrome.
Monday, December 19, 2016
Judicial panel concludes judge committed no misconduct in the sentencing of Brock Turner
This new local article, headlined "Panel clears judge of bias in sentencing of Brock Turner," provides a notable postscript to what became a national sentencing story earlier this year. Here are the basics:
A commission cleared Santa Clara County Superior Court Judge Aaron Persky Monday of misconduct in his light sentencing of a former Stanford student who sexually assaulted an unconscious woman outside a college party.
The Commission on Judicial Performance had received thousands of complaints and petitions that Persky — who on June 2 sentenced Brock Allen Turner to six months in county jail, three years’ probation and lifetime registration as a sex offender — was biased in his sentencing decision. The district attorney’s office had asked for six years in state prison, while the defense had requested four months in county jail with up to five years probation.
“Neither the judge’s statements about the impact of prison and the defendant’s future dangerousness — factors that the judge was required to address on the record — nor any other remarks made by Judge Persky at the sentencing hearing constitute clear and convincing evidence of judicial bias,” the panel concluded unanimously. Based in San Francisco, the panel include six public members, two lawyers, and three judicial officers.
The 12-page panel decision is available at this link, and here is a key paragraph from its introductory section:
The commission has concluded that there is not clear and convincing evidence of bias, abuse of authority, or other basis to conclude that Judge Persky engaged injudicial misconduct warranting discipline. First, the sentence was within the parameters set by law and was therefore within the judge’s discretion. Second, the judge performed a multi-factor balancing assessment prescribed by law that took into account both the victim and the defendant. Third, the judge’s sentence was consistent with the recommendation in the probation report, the purpose of which is to fairly and completely evaluate various factors and provide the judge with a recommended sentence. Fourth, comparison to other cases handled by Judge Persky that were publicly identified does not support a finding of bias. The judge did not preside over the plea or sentencing in one of the cases. In each of the four other cases, Judge Persky’s sentencing decision was either the result of a negotiated agreement between the prosecution and the defense, aligned with the recommendation of the probation department, or both. Fifth, the judge’s contacts with Stanford University are insufficient to require disclosure or disqualification.
Some (of many) prior related posts on the Brock Turner case:
- Lots of seemingly justifiable outrage after lenient California sentencing of privileged man convicted of three felony counts of sexual assault
- Lots more mainstream and new media commentary on lenient sentencing of Stanford sex assaulter
- "The Stanford rape case demonstrates liberal hypocrisy on issues of basic fairness in the criminal justice system"
- Juror involved in trial of Stanford swimmer Brick Turner assails sentence given for sexual assault convictions
- Considering the potential negative consequences of the Stanford rape sentencing controversy and judge recall effort
December 19, 2016 in Celebrity sentencings, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (5)
"Mass incarceration and children’s outcomes: Criminal justice policy is education policy"
The title of this post is the title of this intriguing report released late last week by the Economic Policy Institute (EPI). This press release from EPI provide a kind of report summary under the heading "Mass incarceration contributes significantly to the racial achievement gap," and here is its text:
In Mass incarceration and children’s outcomes, EPI research associates Leila Morsy and Richard Rothstein outline the connections between mass incarceration and racial achievement gaps. There is overwhelming evidence that having an incarcerated parent leads to an array of cognitive and noncognitive outcomes known to affect children’s performance in school. Independent of other social and economic characteristics, children of incarcerated parents are more likely to misbehave in school, drop out of school, develop learning disabilities, experience homelessness, or suffer from conditions such as migraines, asthma, high cholesterol, depression, anxiety, and post-traumatic stress disorder.
“Simply put, criminal justice policy is education policy,” said Morsy. “It is impossible to disentangle the racial achievement gap from the extraordinary rise in incarceration in the United States. Education policymakers, educators, and advocates should pay greater attention to the mass incarceration of young African Americans.”
African American children are six times as likely as white children to have a parent who is or has been incarcerated. One-in-four African American students have a parent who is or has been incarcerated, and as many as one-in-ten have a parent who is currently incarcerated. Because African American children are disproportionately likely to have had an incarcerated parent, the authors argue, the United States’ history of mass incarceration has contributed significantly to gaps in achievement between African American and white students.
“Despite increased national interest in criminal justice reform, President-elect Trump has promised to move in the opposite direction by advocating for a nationwide “stop-and-frisk” program,” said Rothstein. “While the chance of reform on a federal level may have stalled, advocates should look for opportunities for reform at the state and local levels, because many more parents are incarcerated in state than in federal prisons.”
The authors advocate for a number of policies to address this problem by reducing incarceration, including eliminating disparities between minimum sentences for possession of crack versus powder cocaine, repealing mandatory minimum sentences for minor drug offenses and other nonviolent crimes, and increasing funding for social, educational, and employment programs for released offenders.
Sunday, December 11, 2016
You be the federal sentencing judge: how long a prison term for convicted Philly US Representative? UPDATE: He got 10 years!
I find high-profile, white-collar sentencing cases to be among the most interesting and dynamic because they often require a judge (and others) to balance and calibrate competing punishment theories and goals. Because most white-collar offenders are not violent and often had a successful/productive life before getting into trouble, the need for severe punishment to incapacitate or specifically deter an offender from committing future crimes is often diminished. But because potential white-collar offenders are likely influenced by the deterrent impact emerging from the punishment of others like them, and also because white-collar offenders typically have had a relatively advantaged background, one can reasonably believe that crime control and just punishment concerns justify always throwing the book at any and all serious white-collar offenders.
With that backdrop, I am not surprised to have seen this past week a pair of articles reporting on lawyers are fiercely debating the federal sentences for a convicted politician from the City of Brotherly Love. The sentencing of Chaka Fattah takes place this Monday, and these two local articles, linked here and with their introductions, provide the basics for any wanna-be federal sentencing judge:
Chaka Fattah could spend the next two decades in prison if federal prosecutors get their way at the former congressman's sentencing hearing next week. In a memo filed with the court late Monday, government lawyers described the Philadelphia Democrat as "self-serving" and utterly unremorseful and urged U.S. District Judge Harvey Bartle III to sentence him within a range of 17 to 22 years in prison.
"Fattah understood the power and trust given to elected officials and that corruption benefits the few at the expense of the many," Special Assistant U.S. Attorney Eric Gibson wrote. "He chose to violate the trust of his constituents and the taxpayers to line his pockets and advance his personal and professional goals at their expense."
That punishment, if imposed, would far exceed those received by other Philadelphia-area politicians who ran afoul of federal corruption cases. State Sen. Vincent Fumo received five years after his 2009 conviction on 137 counts including conspiracy and fraud. But prosecutors noted that their recommended sentence for Fattah fell well within the federal sentencing guidelines for his crimes. What's more, they said, it tracks with other recent sentences for corrupt politicians, including former New Orleans Mayor Ray Nagin and former Detroit Mayor Kwame Kilpatrick, convicted of similar crimes.
Chaka Fattah's lawyers pushed back against prosecutors Thursday, calling the two-decade-long sentence they recommended for the former congressman "extreme" and "unnecessarily harsh." Such a punishment, they said in a court filing, would be the longest prison term ever received by a member of Congress for corruption.
Instead, the defense urged U.S. District Judge Harvey Bartle III to consider a far shorter term and argued that the Philadelphia Democrat's misdeeds hardly compared to those of politicians found guilty in more serious cases. "While it is true that Chaka Fattah now stands before this court convicted of serious crimes, he is also a man that has dedicated his entire life to the service of others," defense lawyer Mark Lee wrote. "As a legislator, he made the education of disadvantaged youth his life's work. And as a mentor and role model, Chaka Fattah inspired countless young men and women to service and self-improvement."
The defense's sentencing recommendation followed one filed Monday by prosecutors, who argued that Fattah deserves a sentence of between 17 and 22 years under federal sentencing guidelines. Fattah's team, in its filing, countered that the correct guideline range was 11 to 14 years — and suggested a far shorter term than that.
Their back-and-forth set up what is likely to be a contentious court battle Monday when Fattah, 60, will become the first member of Pennsylvania's congressional delegation to be sentenced in a federal corruption case since 1996, when Pittsburgh-area Rep. Joseph P. Kolter was sentenced to six months for covering up his theft of thousands of dollars in taxpayer funds with vouchers that claimed he used the money to buy stamps for his office.
My own punishment views in these kinds of white-collar cases, which may be influenced both by my ivory-tower history and my past work for certain white-collar defendants, lead me to believe that a few years in federal prison (plus a big financial sanction) will usually be sufficient to achieve utilitarian and retributivist goals. Stated slightly differently and in terms of the key directive of federal sentencing law, I tend to view any prison sentence of more than a few years when the defendant poses no real continuing threat to public safety to be "greater than necessary" to achieve congressional punishment purposes.
UPDATE: This Politico article completes the sentencing story in its headline: "Fattah sentenced to 10 years in prison."
December 11, 2016 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, White-collar sentencing, Who Sentences? | Permalink | Comments (10)
Saturday, December 10, 2016
US Sentencing Commission proposes many guideline amendments as many USSC members complete service
This extended press release from the US Sentencing Commission reports on the significant activities of the USSC at its public meeting yesterday. The press release also explains a bit why these activities took place at this time and why the USSC is on the verge of a big transition. Here are highlights (with links from the original):
Today the United States Sentencing Commission unanimously voted to publish proposed amendments to the federal sentencing guidelines.
The public meeting afforded the current commissioners the opportunity to work together for the last time, as the terms of Chief Judge Patti B. Saris (Chair of the Commission), Judge Charles R. Breyer (Vice Chair), and Commissioner Dabney L. Friedrich will expire at the end of the current congressional session. Praising her colleagues, Chair Saris remarked, “Commissioner Friedrich and Judge Breyer demonstrated a remarkable commitment to improving federal sentencing policy and brought a wealth of knowledge and experience to the Commission. I am deeply honored to have worked with them, and all of the commissioners, these past six years to make the guidelines more efficient, effective, and just. The proposed amendments were evidence-based, data-driven, and adopted in a collegial and bipartisan fashion. I thank all the commissioners and staff for their hard work. I am confident that the future Commission and its staff will remain dedicated to this serious and important mission” (full remarks).
In her final statement as Chair, Chief Judge Saris stated, “Next year marks the 30th anniversary of the federal sentencing guidelines. So much bipartisan progress has been made in criminal justice reform. I am hopeful that the 115th Congress will pass meaningful legislation, adopting the Commission’s unanimous recommendations to reduce the statutory mandatory minimum penalties for drug trafficking and to expand the so-called ‘safety valve,’ the mechanism to reduce sentences for non-violent, low level offenders.” The Commission will announce a new Acting Chair at the conclusion of this session of Congress.
The Commission proposed an amendment that could increase the use of alternatives to incarceration for first-time offenders. The Commission remains committed to its work to make the guidelines and federal sentencing fairer and more proportionate while maintaining an ongoing commitment to public safety. In 2010, the Bureau of Prisons inmate population was 37% over capacity, and now it is around 15%. Consistent with the ongoing statutory mandate to address overcrowding, the proposed amendment would reduce penalties for first-time offenders and increase the availability of alternatives to incarceration. In a 2015 study, the Commission found that alternative sentences were imposed in only 13% of federal cases. In a more recent research report, the Commission further found that offenders with zero criminal history points had the lowest rates of recidivism.
The commissioners also agreed to conduct a two-year study of synthetic drugs, which may result in establishing drug equivalencies for controlled substances not yet referenced at the drug quantity table in §2D1.1. To contribute to the study, commissioners voted to seek comment on offenses involving synthetic cannabinoids, synthetic cathinones (more commonly known as bath salts), and MDMA, also known as Ecstasy.
In a May 2016 report, the Commission’s Tribal Issues Advisory Group (TIAG) identified the treatment of youthful offenders as an area needing further examination. As a result of this study and the Commission’s subsequent research, commissioners voted unanimously to publish a proposed amendment that would exclude juvenile sentences from being considered in the calculation of the defendant’s criminal history score.
Another proposed amendment responds to the Bipartisan Budget Act of 2015. The Commission is considering a proposed amendment that reflects Congress’s changes to the Social Security Act by increasing penalties for social security fraud. In putting forth this proposed amendment, Chair Saris stated, “I would like to acknowledge the important years of work, as well as the continued oversight, led by the House Judiciary Committee, the Senate Committee on Finance and the House Ways and Means Committee to ensure aggressive implementation of these new penalties relating to Social Security fraud.” Other changes relate to the treatment of revocation sentences under §4A1.2(k) and a possible departure provision at §4A1.3 based on an offender’s criminal history category.
Over the past six years, the current Commission took a number of actions to address unwarranted sentencing disparities and to reduce federal prison costs and populations. The Commission reduced disparities in federal cocaine sentencing policy by giving retroactive effect to the guideline changes resulting from the Fair Sentencing Act of 2010, resulting in reduced sentences for 7,748 federal offenders. In 2014 the Commission changed the offense levels associated with the drug quantity table (often referred to as the “Drugs Minus Two” amendment)—as a result, 28,544 prison sentences were reduced, following the review of each case by a federal judge. These actions have contributed to a significant decrease in the federal prison population, leaving more funding for law enforcement, crime prevention and reentry programming, and victim services....
By statute, commissioners are appointed by the President and confirmed by the Senate, and serve six-year terms. At least three of the commissioners must be federal judges and no more than four may belong to the same political party. Other Commissioners include Circuit Judge William H. Pryor, Jr., Commissioner Rachel E. Barkow, Commissioner J. Patricia Wilson Smoot (ex-officio, U.S. Parole Commission), and Commissioner Michelle Morales (ex-officio, U.S. Department of Justice). The Commission must have at least four voting Commissioners for a quorum.
Thursday, December 08, 2016
Fascinating accounting of considerable racial disparity in Florida sentencing
A helpful reader altered me to an extraordinary series of articles now in the Sarasota Herald-Tribune examining disparities in Florida's sentencing system, all under the heading "Bias on the Bench." The lead article is headlined "Florida’s broken sentencing system: Designed for fairness, it fails to account for prejudice," and it starts this way:
Justice has never been blind when it comes to race in Florida. Blacks were first at the mercy of slave masters. Then came Jim Crow segregation and the Ku Klux Klan. Now, prejudice wears a black robe.
Half a century after the civil rights movement, trial judges throughout Florida sentence blacks to harsher punishment than whites, a Herald-Tribune investigation found. They offer blacks fewer chances to avoid jail or scrub away felonies. They give blacks more time behind bars — sometimes double the sentences of whites accused of the same crimes under identical circumstances.
Florida lawmakers have struggled for 30 years to create a more equitable system. Points are now used to calculate sentences based on the severity of the crime, the defendant’s prior record and a host of other factors. The idea is to punish criminals in Pensacola the same as those in Key West — no matter their race, gender or wealth. But the point system has not stopped discrimination.
In Manatee County, judges sentence whites convicted of felony drug possession to an average of five months behind bars. They gave blacks with identical charges and records more than a year. Judges in the Florida Panhandle county of Okaloosa sentence whites to nearly five months for battery. They lock up blacks for almost a year. Along the state’s northeast shore, judges in Flagler County put blacks convicted of armed robbery away for nearly triple the time.
“It’s unconscionable,” said Wengay Newton Sr., a former St. Petersburg city commissioner and Democrat, who was elected to the Florida House of Representatives in November. “That’s like running a red light in a white car and your ticket is $100 and running a red light in a black car and your ticket is $300.”
The Herald-Tribune spent a year reviewing tens of millions of records in two state databases — one compiled by the state’s court clerks that tracks criminal cases through every stage of the justice system and the other by the Florida Department of Corrections that notes points scored by felons at sentencing.
Reporters examined more than 85,000 criminal appeals, read through boxes of court documents and crossed the state to interview more than 100 legal experts, advocates and criminal defendants. The newspaper also built a first-of-its-kind database of Florida’s criminal judges to compare sentencing patterns based on everything from a judge's age and previous work experience to race and political affiliation.
No news organization, university or government agency has ever done such a comprehensive study of sentences handed down by individual judges on a statewide scale. Among the findings:
• Florida’s sentencing system is broken. When defendants score the same points in the formula used to set criminal punishments — indicating they should receive equal sentences — blacks spend far longer behind bars. There is no consistency between judges in Tallahassee and those in Sarasota.
• The war on drugs exacerbates racial disparities. Police target poor black neighborhoods, funneling more minorities into the system. Once in court, judges are tougher on black drug offenders every step of the way. Nearly half the counties in Florida sentence blacks convicted of felony drug possession to more than double the time of whites, even when their backgrounds are the same.
• Florida's state courts lack diversity, and it matters when it comes to sentencing. Blacks make up 16 percent of Florida’s population and one-third of the state’s prison inmates. But fewer than 7 percent of sitting judges are black and less than half of them preside over serious felonies. White judges in Florida sentence black defendants to 20 percent more time on average for third-degree felonies. Blacks who wear the robe give more balanced punishments.
• There’s little oversight of judges in Florida. The courts keep a wealth of data on criminal defendants. So does the prison system. But no one uses the data to review racial disparities in sentencing. Judges themselves don’t know their own tendencies.
Without checks to ensure equality, bias reigns.
Here are links to the other pieces in the series:
- Tough on crime: Black defendants get longer sentences in Treasure Coast system
- Gainesville’s war on drugs: It’s fought in the hood – not on campus
- Race and politics influence judicial decisions: But Florida’s bench is a world of contradictions
December 8, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, State Sentencing Guidelines, Who Sentences? | Permalink | Comments (11)
Wednesday, December 07, 2016
"How Tough on Crime Became Tough on Kids: Prosecuting Teenage Drug Charges in Adult Courts"
The title of this post is the title of this notable new report from The Sentencing Project. Here is its Introduction:
Transfer laws in 46 states and the District of Columbia permit youth to be tried as adults on drug charges.
Successful campaigns to raise the age of juvenile court jurisdiction have rolled back some excesses of the tough on crime era. After the implementation of Louisiana’s SB 324 in 2017 and South Carolina’s SB 916 in 2019, just seven states will routinely charge 17-year old offenders as adults, including the two states that also charge 16-year olds as adults. Despite other state laws that differentiate between adults and youth, placing limits on teens’ rights to serve on juries, vote, or marry without parental consent, the criminal justice system in these jurisdictions erases the distinction when they are arrested.
Though the vast majority of arrested juveniles are processed in the juvenile justice system, transfer laws are the side door to adult criminal courts, jails, and prisons. These laws either require juveniles charged with certain offenses to have their cases tried in adult courts or provide discretion to juvenile court judges or even prosecutors to pick and choose those juveniles who will be tried in adult courts.
It is widely understood that serious offenses, such as homicide, often are tried in adult criminal courts. In fact, for as long as there have been juvenile courts, mechanisms have existed to allow the transfer of some youth into the adult system 2 During the early 1990s, under a set of faulty assumptions about a coming generation of “super-predators,” 40 states passed legislation to send even more juveniles into the adult courts for a growing array of offenses and with fewer procedural protections. The super-predators, wrote John J. DiIulio in 1995, “will do what comes ‘naturally’: murder, rape, rob, assault, burglarize, deal deadly drugs, and get high.”
This tough-on-crime era left in its wake state laws that still permit or even require drug charges to be contested in adult courts. Scant data exist to track its frequency, but fully 46 states and the District of Columbia permit juveniles to be tried as adults on drug charges. Only Connecticut, Kansas, Massachusetts, and New Mexico do not. States have taken steps to close this pathway, including a successful voter initiative in California, Proposition 57. Nationwide, there were approximately 461 judicial waivers (those taking place after a hearing in juvenile court) in 2013 on drug charges. The totals stemming from other categories of transfer are not available.
From 1989 to 1992, drug offense cases were more likely to be judicially waived to adult courts than any other offense category. Given the recent wave of concern over opiate deaths, it is reasonable to fear a return to this era, even as public opinion now opposes harsh punishments for drug offenses.
The ability of states to send teenagers into the adult system on nonviolent offenses, a relic of the war on drugs, threatens the futures of those teenagers who are arrested on drug charges, regardless of whether or not they are convicted (much less incarcerated) on those charges. Transfer laws have been shown to increase recidivism, particularly violent recidivism, among those convicted in adult courts. Research shows waiver laws are disproportionately used on youth of color. Moreover, an adult arrest record can carry collateral consequences that a juvenile record might not. Since very few criminal charges ever enter the trial phase, the mere threat of adult prison time contributes to some teenagers’ guilty pleas. This policy report reviews the methods by which juveniles can be tried as adults for drug offenses and the consequences of the unchecked power of some local prosecutors.
Oklahoma's top criminal court gives significant effect to Miller's limits on juve LWOP sentences
As reported in this local article, headlined "Resentencings ordered in two high-profile Oklahoma murder cases," the top criminal court in Oklahoma issues two big ruling about juve LWOP sentencing late last week. Here are the basics:
Oklahoma's youngest murderers can no longer be sentenced to life in prison without the possibility of parole unless they are found to be "irreparably corrupt and permanently incorrigible." A divided Oklahoma Court of Criminal Appeals established the new restrictions in rulings made Friday in two high-profile murder cases.
The first ruling involved a murderer who was 16 at the time. The second involved a murderer who was 17 at the time. Both must be resentenced, the appeals court ruled. In both cases, the appeals court concluded the punishment of life without parole "is constitutionally infirm" because jurors were not presented evidence involving "important youth-related considerations."...
The appeals court came up with a new instruction to be given to juries in future murder cases involving a defendant who was under age 18 at the time of the crime. Jurors will be told "no person who committed a crime as a juvenile may be sentenced to life without the possibility of parole unless you find beyond a reasonable doubt the defendant is irreparably corrupt and permanently incorrigible."
A murderer sentenced to a life term, with a chance at parole, is eligible for consideration under current law after spending 38 years and three months in prison.
I received an email about these rulings from The Campaign for the Fair Sentencing of Youth, and here is part of that email (with links to the decisions):
On Friday, Oklahoma’s highest criminal court applied Miller v. Alabama and Montgomery v. Louisiana to discretionary juvenile life without parole, affording an opportunity for resentencing to more than 45 people in Oklahoma sentenced to die in prison for crimes committed as children.
In two decisions, the court affirmed United States Supreme Court limitations on sentencing children to life in prison. These decisions should dramatically limit, if not prevent, the imposition of life sentences for children in Oklahoma going forward....
Oklahoma has joined a growing number of states that apply Miller and Montgomery to sentences of juvenile life without parole where the judge had discretion whether or not to impose life without parole, including Connecticut, Georgia, and South Carolina.
The Oklahoma Court of Criminal Appeals also required a finding of “irreparable corruption and permanent incorrigibility” beyond a reasonable doubt before life without parole can be imposed on children, consistent with the U.S. Supreme Court’s holding in Montgomery that life without parole is unconstitutional when imposed on the vast majority of children.
Tuesday, December 06, 2016
"The Link Between Race and Solitary Confinement: Men of color are overrepresented in isolation, while whites are typically underrepresented."
The title of this post is the full headline of this new Atlantic piece. Here is how it gets started (with links from the original):
Stark disparities in prisoners’ treatment are embedded into criminal-justice systems at the city, county, state, and federal levels, and have disproportionate, negative effects on men of color. A new analysis from the Association of State Correctional Administrators and Yale Law School provides a fresh trove of information with which to explore the racial dynamics in state and federal prisons — specifically through their findings on solitary confinement.
“People of color are overrepresented in solitary confinement compared to the general prison population,” said Judith Resnik, a professor at Yale Law School and one of the study’s authors. “In theory, if race wasn’t a variable, you wouldn’t see that kind of variation. You worry. It gives you a cause to worry.”
The study concluded that, overall, black male prisoners made up 40 percent of the total prison population in those 43 jurisdictions, but constituted 45 percent of the “restricted housing population,” another way to describe those in solitary confinement. In 31 of the 43, the percentage of black men who spent time in solitary wasn’t proportional to their slice of the general population — it was greater. Latinos were also disproportionately represented in solitary: On the whole, 21 percent of inmates in confinement were Latino, even though this group constituted only 20 percent of the total population. Overall, in 22 of the 43 jurisdictions, Latinos were overrepresented in relation to their general-population numbers.
At the same time, figures for white inmates were largely inverse, with 36 of the 43 jurisdictions reporting that whites were underrepresented in solitary. (Women prisoners also undergo solitary confinement, though not as frequently as their male counterparts; this article focuses on the men’s data.)
The numbers look slightly different at the state level. In some states, the racial makeup of prisons and their solitary-confinement populations appeared more balanced — like in Kentucky, where white prisoners made up 70 percent of both the general and restricted-housing populations. Black prisoners represented 28 percent of those imprisoned and 27 percent of those in solitary. The dynamic is similar in the District of Columbia, with whites representing 2 percent of both the general and solitary-confinement populations, and blacks representing 90 percent and 94 percent of those groups, respectively.
By and large, similarly aligned figures can be found throughout the country. But in some states, the racial disproportions are startling.
For example, in a handful of states where Latinos represent a large swath of the overall population, the racial disparities are significant. In California, Latinos made up 42 percent of the general prison population, but 86 percent of those in solitary confinement. Whites, by contrast, were 22 percent of the general population, but only nine percent of those in solitary. And in Texas, Latinos made up 50 percent of those in solitary, but only 34 percent of the overall prison population. Yet again, whites’ figures were lower: They represented 32 percent of the general prison population, but 25 percent of the population in solitary confinement. Mississippi, too, had dissimilar numbers among the racial groups.
Monday, December 05, 2016
"No Bars: Unlocking the Economic Power of the Formerly Incarcerated"
The title of this post is the title of this intriguing little paper authored by Emily Fetsch for the Ewing Marion Kauffman Foundation and now available via SSRN. Here is the abstract:
One in three Americans has a criminal record. Given the significant size of this population, the ability for these individuals to attain economic success after they leave prison has tremendous implications for our economy and economic mobility. But formerly incarcerated individuals face substantial obstacles to employment when they leave prison, from discrimination in hiring to occupational licensing requirements that exclude those with criminal records from specific professions.
This paper summarizes recent research on the employment of formerly incarcerated individuals, focusing in particular on the disproportionate effect of occupational licensing requirements. The paper concludes with suggestions for policy changes that would reduce the friction this population experiences in the labor market. These policies would help these individuals become more economically independent and have a positive impact on the economy as a whole.