Wednesday, August 15, 2018

Assailing the new expanded mandatory minimum for "career offenders" being pushed by AG Jeff Sessions

As noted in prior posts here and here, earlier this month Attorney General Jeff Sessions gave a big speech advocating for reform to the Armed Career Criminal Act in part as a response to the Supreme Court's 2015 ruling in Johnson finding a part of ACCA vague.  Writing at The American Prospect, Manuel Madrid has this new piece unpacking the particulars of this effort.  The full headline and subheadline summarizes the themes of the piece: "Jeff Sessions and the Conservative Nostalgia for Harsh Sentencing: A new Republican bill would slap nonviolent criminals with 15-year mandatory minimum sentences. White-collar crimes, property crimes, and drug-related offenses would all count toward being considered a 'career armed criminal'.”  Here are some excerpts:

Attorney General Jeff Sessions’s full-court press for more tough-on-crime policies has found a home in Congress.  Speaking before a crowd of law enforcement officials and prosecutors ... in Little Rock, Arkansas, Sessions called for legislation to reinstate an aggressive Reagan-era sentencing law that targets repeat offenders....

About an hour before the speech, Republican Senators Orrin Hatch of Utah, Tom Cotton of Arkansas, and Lindsey Graham of South Carolina offered a glimpse into what such a fix would look like with their new bill, the Restoring the Armed Career Criminal Act of 2018. The proposed legislation revises the language in the original act and broadens its scope to avoid possible legal challenges, while extending hefty mandatory minimum prison sentences to violent and nonviolent criminals alike....

While the original act might have been defended on the grounds that it at least attempted to hone in on some violent criminals, the Cotton-Hatch-Graham redux abandons all pretenses of even trying.  Under the new bill, nonviolent crimes such as identity theft, fraud, and money laundering could earn a person the label of armed career criminal. And the list goes on: Property crimes like burglary and theft and a score of drug-related crimes would all be on the table.

Before the 2015 Supreme Court decision, about 600 offenders were charged each year under the Armed Career Criminal Act. That number dropped to 265 last year.  The change would likely open the floodgates to more mandatory minimum prison sentences, which already disproportionately affect minorities.  In 2017, more than half of felons charged with unlawful possession of a firearm were black and almost 20 percent were Hispanic.  Only 4.4 percent were charged as armed career criminals....

During his time in the Senate, Sessions, along with Senator Cotton, persuaded other Republicans to join them in torpedoing a bipartisan sentencing reform bill in 2016 which would have shortened existing mandatory minimums and narrowed the scope of drug convictions that triggered them....

The drastic expansion of the Armed Career Criminal Act proposed in the Cotton-Hatch-Graham bill would accelerate the federal government’s backsliding on criminal justice, achieving little more than earning the praise from a minority of conservative politicians nostalgic for the hardline policies of decades past.

Prior related posts:

August 15, 2018 in Gun policy and sentencing, Offender Characteristics, Offense Characteristics, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (2)

"Nowhere to Go: Homelessness among formerly incarcerated people"

The title of this post is the title of this notable new Prison Policy Initiative report which gets started this way:

It’s hard to imagine building a successful life without a place to call home, but this basic necessity is often out of reach for formerly incarcerated people.  Barriers to employment, combined with explicit discrimination, have created a little-discussed housing crisis.

In this report, we provide the first estimate of homelessness among the 5 million formerly incarcerated people living in the United States, finding that formerly incarcerated people are almost 10 times more likely to be homeless than the general public.  We break down this data by race, gender, age and other demographics; we also show how many formerly incarcerated people are forced to live in places like hotels or motels, just one step from homelessness itself.

August 15, 2018 in Data on sentencing, Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (1)

Monday, August 13, 2018

"Algorithmic Risk Assessments and the Double-Edged Sword of Youth"

The title of this post is the title of this new paper authored by Megan Stevenson and Christopher Slobogin now available via SSRN. Here is the abstract:

At sentencing, youth can be considered both a mitigating circumstance because of its association with diminished culpability and an aggravating circumstance because of its association with crime-risk.  In theory, judges and parole boards can recognize this double-edged sword phenomenon and balance the mitigating and aggravating effects of youth. But when sentencing authorities rely on algorithmic risk assessments, a practice that is becoming increasingly common, this balancing process may never take place.

Algorithmic risk assessments often place heavy weights on age in a manner that is not fully transparent -- or, in the case of proprietary “black-box” algorithms, not transparent at all.  For instance, our analysis of one of the leading black-box tools, the COMPAS Violent Recidivism Risk Score, shows that roughly 60% of the risk score it produces is attributable to age.  We argue that this type of fact must be disclosed to sentencing authorities in an easily-interpretable manner so that they understand the role an offender’s age plays in the risk calculation.  Failing to reveal that a stigmatic label such as “high risk of violent crime” is due primarily to a defendant’s young age could lead to improper condemnation of a youthful offender, especially given the close association between risk labels and perceptions of character and moral blameworthiness.

August 13, 2018 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Spotlighting challenges surrounding an Eighth Amendment jurisprudence defining adulthood at 18

Beth Schwartzapfel has this effective new Marshall Project piece on the Supreme Court's recent juvenile sentencing jurisprudence under the headline "The Right Age to Die?: For some, science is outpacing the High Court on juveniles and the death penalty." Here are excerpts:

When 15-year-old Luis Cruz joined the Latin Kings in 1991, he was a child by almost any measure: he couldn’t legally drive, drop out of school, or buy a beer.  But was he still a child a few years later when — just months after he turned 18 — he murdered two people on the orders of gang leaders?

Earlier this year, a federal judge in Connecticut said yes.  The judge decided that a 2012 Supreme Court ruling that forbade mandatory sentences of life without parole for juveniles should apply to 18-year-olds like Cruz, and granted his request to be resentenced.  It’s one of a small but growing number of cases in which courts are grappling with what to do with young adults who commit the most serious crimes....

When it comes to the most extreme punishments, the Supreme Court has ruled so far that 18 is a “bright line.”  If you’re under 18 at the time of your crime, you can’t be executed.  You also can’t be sentenced to life without parole without a hearing to consider your maturity level.  But the high court has never extended those protections past age 18.

“The qualities that distinguish juveniles from adults do not disappear when an individual turns 18,” Justice Anthony Kennedy wrote in Roper v. Simmons, the first of four modern cases in which the court has laid out its thinking on these issues.  “However, a line must be drawn.”  The high court has not revisited that line since Roper was decided in 2005. But state and lower federal courts have begun to consider whether people between the ages of 18 and 21 — the period psychologists now call “late adolescence” — should have the same kind of special consideration that younger teenagers get before they face sentencing for murder.

The Roper case was decided at a time when researchers had recently begun imaging adolescents’ brains.  Using functional magnetic resonance imaging, or fMRI — like the technology doctors use to look inside the brain for tumors or strokes — researchers were able to observe how young people’s brains responded to various situations.... But it wasn’t until recently that scientists began to research what happens to the brain in late adolescence and young adulthood, says Laurence Steinberg, a leading researcher into adolescent development who helped write the American Psychological Association’s briefs before the Supreme Court and who has testified in many of the more recent lower court cases. And when they did, they found that those same youthful qualities seem to persist until the early- to mid-20s.

In one recent study, Steinberg and his colleagues gave a series of tests to more than 5,000 children and young adults across 11 countries.  They found that the impulse to chase thrills and look for immediate gratification peaks around age 19 and declines into the 20s.  Steinberg describes this system of the brain like the gas pedal in a car.  The “brake” system — the ability to plan ahead and consider consequences — takes longer to catch up: it isn’t generally fully mature until the 20s.  Steinberg says if he had to draw a new bright line, he would draw it at 21.

“Knowing what we know now, one could’ve made the very same arguments about 18-, 19- and 20-year-olds that were made about 16- and 17-year-olds in Roper,” he testified in a recent Kentucky case.In that Kentucky case, a judge found the state’s death penalty statute unconstitutional because it allows people who were under 21 at the time of their crime to be executed. “If the science in 2005 mandated the ruling in Roper, the science in 2017 mandates this ruling,” he wrote.  A Pennsylvania court last year considered an appeal from a woman who was sentenced to mandatory life without parole after serving as a lookout, at 18, during a botched robbery that ended in murder.  The court rejected the appeal on technical grounds, but called 18 an “arbitrary legal age of maturity” and said an “honest reading” of the Supreme Court’s ruling would require courts to reconsider it....

Justice Kennedy, who was often the Supreme Court’s swing vote in close cases and who voted in favor of all four of the court’s major rulings extending these protections to juveniles under 18, retired this summer.  The court is widely expected to tack right when President Donald Trump’s pick assumes Kennedy’s seat.  In light of that, opponents of juvenile life without parole are aiming to keep these cases in lower courts for now, said Marsha Levick of the Juvenile Law Center, which has submitted briefs in support of many of these defendants.  They’re not likely to get a friendly hearing on the question of whether 18-, 19- and 20-year-olds are less culpable than adults from the newly composed high court, Levick said.

In the meantime, Steinberg, the psychologist, says he has been hired by the attorneys for Nikolas Cruz, who faces the death penalty as the accused gunman in February’s Parkland school shooting in Florida.  Cruz was 19 when he allegedly killed 17 people at Marjory Stoneman Douglas High School.  Steinberg “struggled about this a lot,” he said.  But in the end “it’s really hard logically to say, ‘People your age are too immature to be sentenced to death, unless you do something really, really bad.’”

August 13, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics | Permalink | Comments (1)

Sunday, August 05, 2018

Prison Nurseries?

I'll be back tomorrow blogging about the war on kids, but I wanted to share this NBC news story about prison nurseries.

According to the piece, there are eight prison nurseries in the United States, and as the number of women in prison has exploded in recent years, their existence raises several interesting questions. Is separation from one's infant a just part of a sentence? Does that sentence inflict more harm on the child than the mother? Is it safe/desirable/cost-effective to allow mothers and infants to remain in prison together? More here:

Bedford Hills has the nation’s longest-running prison nursery. Opened in 1901, it has allowed hundreds of women who have started their sentences pregnant to bond with their babies while behind bars — something advocates say is best for babies and lowers the mothers’ recidivism rate, but some critics argue violates the children’s constitutional rights using taxpayer money, while placing a burden on prison staff by requiring them to double as day care workers.

Bedford Hills is one of eight prison nurseries in the United States. The number of such programs has fluctuated as funding and sentiment toward them has risen and fallen, but now, more than ever, their effectiveness is under scrutiny as the number of women behind bars has skyrocketed.

There are nearly 214,000 women incarcerated in the U.S. — an increase of more than 700 percent since 1980, according to nonprofit The Sentencing Project. There is no official count of how many of these women give birth while imprisoned.

In most prisons, when a woman gives birth, her baby is taken away within 48 to 72 hours and sent to either a relative or foster care. Prison nursery supporters say that keeping newborns with their moms, even behind bars — while not a perfect solution — is better than any alternative.

 

August 5, 2018 in Guest blogging by Professor Cara Drinan, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (0)

Thursday, August 02, 2018

Senators Orrin Hatch and Tom Cotton proposing Johnson fix to expand reach of Armed Career Criminal Act

As detailed in this press release, "Senators Orrin Hatch (R-UT) and Tom Cotton (R-AR) introduced The Restoring the Armed Career Criminal Act of 2018, legislation that will protect Americans from the most violent, repeat offenders." Here is part of the release:

“True criminal justice reform includes giving prosecutors the tools they need to seek enhanced penalties against the worst repeat offenders, said Hatch. “Prosecutors lost one of those tools three years ago when the Supreme Court ruled that a provision of the Armed Career Criminal Act was unconstitutionally vague. Criminals released early from prison as a result of that decision have gone on to commit heinous crimes, including the murder of three innocent Utahns. Our bill will bring much-needed clarity to the law while empowering prosecutors to pursue justice.”...

The National Association of Police Organizations offered their full support for this bill. In addition, the National Sheriffs’ Association has written a letter of support with over 3,000 elected sheriffs nationwide. Click here to read the full letter....

Originally passed by a unanimous vote in the House and Senate in 1984, the Armed Career Criminal Act requires a minimum 15-year prison sentence for felons convicted of unlawful possession of a firearm who have three prior state or federal convictions for violent felonies or serious drug offenses, which must have been committed on three different occasions. These are the worst-of-the worst, career criminals.

The ACCA defines serious drug offenses as those punishable by imprisonment for 10 years or more. It defines violent felonies [in three ways, one of which was declared by the Supreme Court in Johnson] unconstitutionally vague and thus effectively void....

The Restoring the Armed Career Criminal Act of 2018 would do away with the concepts of “violent felony” and “serious drug offense” and replace them with a single category of “serious felony.” A serious felony would be any crime punishable by 10 years or more. By defining “serious felony” solely based on the potential term of imprisonment, the bill would address the vagueness issue and remove any discretion or doubt about which offenses qualify.

The bill would give federal prosecutors an additional tool to go after the most dangerous, career criminals and would not apply to low-level offenders. Specifically, the ACCA would still apply only in a case where a felon who possesses a firearm in violation of 18 U.S.C. § 922(g) has previously been convicted three times of serious felonies, which must have been committed on different occasions.

I noted in this post that the Armed Career Criminal Act is long overdue for a fix, but the solution presented here strikes me as problematic because it expands the reach of a severe mandatory minimum and still has ACCA's reach turn on prior offense definitions. Statutory mandatory minimums are always clunky, and all that may be needed to effectively achieve ACCA's goals would be to raise the applicable maximum terms for illegal gun possession by those with three or more felony convictions.  Judges could and would then use the US Sentencing Commission's guidelines, rather than the fortuity of some prior offense definitions, to determine who are truly the 'worst-of-the worst, career criminals" that should be imprisoned for decades.

Prior related post:

"Attorney General Sessions Delivers Remarks Calling for a Legislative Fix to the Armed Career Criminal Act" 

August 2, 2018 in Mandatory minimum sentencing statutes, Offender Characteristics, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (4)

Wednesday, August 01, 2018

"Attorney General Sessions Delivers Remarks Calling for a Legislative Fix to the Armed Career Criminal Act"

The title of this post is the headline of this press release from the US Department of Justice today, and here are some of the comments that follow that focus on ACCA:

[B]ecause of a 2015 Supreme Court decision holding that the definition of violent felony was too vague — we are missing one of the most important law enforcement tools we had. The Johnson case is quite significant.

Regardless of the merits of the Court’s decision, the consequences have been devastating for Americans across the country.

This court decision led to the release of a man from right here in Little Rock. Eight months after he was released from prison, he was arrested for aggravated assault and domestic battery. A year after that he was arrested for kidnapping, rape, aggravated assault, battery, and terroristic threats. He is accused of raping a 62-year old woman and an autistic homeless man.

This court ruling also led to the release of a man who allegedly punched a pregnant woman at a nightclub in Forrest City. When police intervened, he allegedly assaulted three of them, cutting one of them on the forehead.

A man from Pine Bluff got his 15 year sentence cut in half. A year later, he got into an argument with a co-worker. According to the allegations against him, the co-worker turned around to walk away when the defendant sucker-punched him, broke his nose and eye sockets, chipped a tooth and busted his lip.

Two of these criminals I’ve talked about are now back in prison. They were let out of prison, reoffended, and now they’re back in prison.

But the consequences are not limited to Arkansas. This is a nationwide problem and it’s a cause for deep concern. In Utah, a career criminal released by this decision tortured and murdered two teenagers and then threw their bodies down a mineshaft. A released career criminal in California allegedly murdered his father, carjacked a vehicle and killed the driver. In Oregon, a released career criminal held a Subway sandwich shop hostage and then shot a police officer just 18 days after he was released.

Sadly, I could go on and on. So why did this happen? The Supreme Court struck down part of a law called the Armed Career Criminal Act. It had been on the books for 30 years and applied thousands of times.

This is the law that requires a minimum 15- year sentence for felons caught with a firearm after their third violent felony or serious drug trafficking conviction.

These are not the mythical “low-level, nonviolent drug offenders,” who we are always told are being excessively imprisoned. These are criminals who have already committed multiple serious offenses and then were caught with a gun.

This is no little matter. In 2016, the U.S. Sentencing Commission found that nearly seven out of ten career criminals reoffended after being released. Federal firearms offenders were found to be the most likely to be rearrested of any category. These criminals are both. They are career criminals and firearms offenders. I was a United States Attorney before the Armed Career Criminal Act — and I was United States Attorney afterward. I’ve seen its importance firsthand as we worked to reduce crime in America.

Nationwide, the Supreme Court’s decision has resulted in more than 1,400 violent career criminals back onto our streets — including 18 here in Arkansas. Nine of these Arkansas criminals have already been arrested again.

Six-hundred of those 1,400 criminals have been arrested again. It’s only been three years since the Court decision, but 42 percent have already reoffended.

On average, these 600 criminals have been arrested or reoffended three times in the last three years. A majority of those who have been out of prison for just two years have been arrested again. Releasing repeat offenders has consequences. Every crime committed by a recidivist released by this court case would not have happened. Every one of their victims would not have been victimized.

We must fix the law so violent career criminals are not let out of jail early. Their recidivism rate is staggering indeed, but let’s remember: this is still likely an underrepresentation of their illegal activity. Any law officer in this room will tell you that criminals rarely get caught on their first offense. We can only imagine how many crimes they have really committed and how many innocent people they have victimized.

Releasing hardened criminals into our communities before they serve their minimum term is not fair to crime victims. And it is not fair to law enforcement. You shouldn’t have to go into danger time and again to arrest the same people.

Congress and our legislatures need to help us and consider legislation that protects the public. We need Congress to fix the law so that we can keep violent career criminals off of our streets. That shouldn’t be controversial.

Fortunately, some Members of Congress are helping. My good friend Senator Cotton understands this issue. He is working on legislation that is intended to fix this problem for good — and I want to thank him for his outstanding leadership on criminal justice issues.

We should look for effective and proven ways to reduce recidivism, but we must also recognize that simply reducing sentences without reducing recidivism unfairly creates more victims.

I agree with Attorney General Sessions that we need a Johnson fix and more.  Reform to the Armed Career Criminal Act is long overdue (Justices Scalia and Alito have bemoaning ACCA problems and urged Congress to act for many, many years before Johnson).  Beyond just the vagueness problem Johnson addressed, there are deeper problems with the entire structure of the Armed Career Criminal Act, particularly its reliance on a severe mandatory minimum prison term (of 15 years) for the mere act of possessing a firearm or ammunition. Consequently, I do not think a mere Johnson fix to ACCA will be a fully sound or effective response to the genuine concerns flagged by AG Sessions.

In a future post, I hope to be able to discuss the specifics of Senator Tom Cotton's approach to fixing ACCA.  For now, I will just suggest it will be interesting to see if anyone in Congress will be willing to try to roll an ACCA fix into existing criminal justice reform proposals that are now seemingly languishing on the Hill.

August 1, 2018 in Criminal justice in the Trump Administration, Mandatory minimum sentencing statutes, Offender Characteristics, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (5)

Tuesday, July 31, 2018

After guilty plea, frat member gets 3 months of house arrest and 27 months of probation for role in hazing death of Penn State pledge

As reported in this AP piece, headlined "Penn State fraternity member gets house arrest in pledge death case," a high-profile college campus tragedy led to a notable state sentencing today in the heart of Pennsylvania.  Here are the details:

A Penn State fraternity member who plied a pledge with vodka the night he was fatally injured in a series of falls avoided jail time Tuesday when a judge sentenced him to three months of house arrest.

Ryan Burke, who had pleaded guilty to four counts of hazing and five alcohol violations, apologized to the parents of Tim Piazza, who died in February 2017 after a night of drinking and hazing in the Beta Theta Pi house. Burke said he was “truly sorry” and accepted responsibility for his role in the events that led to Piazza's death from severe head and abdominal injuries he suffered the night he accepted a pledge bid.

Centre County Judge Brian Marshall also gave Burke 27 months of probation, fined him more than $3,000 and ordered 100 hours of community service. “The court was shocked by what happened that night,” Marshall said, adding he was “mindful that there were many involved.”

Burke's defense attorney, Philip Masorti, said afterward he thought the sentence was fair.  “This was an accident that nobody wanted to happen,” he told Marshall. “It led to a tragic death.”

Burke, 21, of Scranton, is the only one so far to plead guilty in the case, in which more than two dozen members of the now-closed fraternity face charges. A hearing for some others is planned for next month, and trial for at least some will be in February.

Prosecutor Brian Zarallo with the attorney general's office said Burke took a leading role in what occurred, as he led the fraternity's effort to recruit new members and physically led them into a drinking station “gauntlet” that began a night of heavy drinking that was captured on the building's elaborate video security system. Piazza “didn't know what was waiting for him,” that night, Zarallo said. “The defendant did. The defendant knew exactly what was waiting for him.”

He played a videotape in which a ball cap-wearing Burke could be identified plying the wannabe members with a bottle of 80-proof vodka, and said Burke seemed nonchalant about Piazza's medical condition after he endured a bad fall down the basement steps. Burke “can't be bothered” and left Piazza for others to deal with him, Zarallo said, describing his actions as callous.

“This is a big joke to these people,” Zarallo said, telling the judge that five pledges vomited that night and one other injured an ankle.

Piazza's parents, who have become anti-hazing advocates, recounted the horror of being summoned to the hospital to find their son with a range of visible and very severe injuries, not far from the death that would soon follow....  Jim Piazza credited Burke for pleading guilty, but noted that occurred after a judge ruled there was sufficient evidence to send the case to county court for trial....

When Burke was first charged in November, he also was accused of involuntary manslaughter, aggravated assault, simple assault and reckless endangerment, but the attorney general's office dropped the most serious charges in April and a district judge subsequently dismissed some other counts.

This other local article reports that prosecutors were asking for three months of imprisonment. I suspect that what prosecutors sought for a defendant who played a leading role, as well as the actual sentencing imposed, might have a big impact on the various charges still facing the other two dozen members of the fraternity.  It is likely that the sentence given to Burke will end up impacting future plea negotiations as well as any sentences that might be imposed on any defendants convicted after a trial.  In tragic incidents like this one in which is it so hard to know just what kind of sentence is "right" in response to unintended harms, I sense it becomes easier for lawyers and judges to gravitate toward sentences already imposed in related cases.

July 31, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Friday, July 27, 2018

At resentencing, former New York Assembly speaker gets (only?) seven years in federal prison for corruption

As reported here by the New York Post, "Sheldon Silver, the disgraced ex-speaker of the New York state Assembly, was sentenced to seven years in prison — less than the 12 years he was sentenced to previously."  Here is the context:

The judge cited the 74-year-old Silver’s advanced age and the substantial monetary penalties she plans to levy, including a $1.75 million fine, in the lower sentence.

Silver was convicted in May — for a second time — of selling his office for $4 million in kickbacks, plus $1 million in profits, tied to two schemes. Before his arrest in 2015, Silver was one of the most powerful men in Albany — along with Gov. Andrew Cuomo and former Senate Majority Leader Dean Skelos.

At his 2016 sentencing, Judge Valerie Caproni — who sentenced him again this time around — ordered him to serve 12 years in prison and to forfeit nearly $5.2 in ill-gotten gains and another $1.75 million in fines. But Silver never served a day in prison because his 2015 conviction was overturned on appeal amid questions about the validity of the jury instructions, which were raised after the US Supreme Court narrowed the definition of bribery.

Silver’s lawyer Michael Feldberg has said he plans to appeal the second verdict as well, saying the feds once again failed to prove that Silver promised anything in return for the lucrative referrals he received....

During Friday’s sentencing, Caproni blasted Albany’s culture of corruption, noting that recent months have all “touched, directly and indirectly, the ‘three men in a room'” — the derisive term used to describe the governor and top leaders of the Senate and Assembly. “This has to stop,” she said. “New York state has to get its act together and do something institutionally to stop corruption.”

Still, she commended Silver for apologizing for his conduct this time around, which he did not do in 2016. “That was a wise decision on Mr. Silver’s part,” she said. “Mr. Silver’s conduct clearly caused discernible harm.” She also remarked on signs of wear and tear. “I feel like visually he’s aged more than the three years that have gone by chronologically,” she said.

Silver also spoke at the sentencing, saying that he is “extremely, extremely remorseful” for having “brought out a great deal of distrust in NY’s government.”

As noted in prior posts linked below, the original 12-year sentence given to Silver was still way below a calculated guideline range of 20+ years.  And this time around, the feds were asking for a sentence "substantially in excess" of 10 years.  So, Silver probably should feel a bit lucky he did not get an even longer term than seven years.  But even with some likely time off for good behavior, Silver now cannot be making any real retirement plans until 2025. 

Prior related posts:

July 27, 2018 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, White-collar sentencing | Permalink | Comments (6)

Tuesday, July 24, 2018

A friendly brief on the intersection of Eighth Amendment juvenile sentencing jurisprudence and the federal sentencing guidelines

I was pleased to have as one project this summer helping to draft an amicus brief in support of a Ninth Circuit en banc petition in US v. Riley Briones. In a split decision handed down in May, a panel of the Ninth Circuit affirmed the district court adoption of the the federal sentencing guidelines as the key factor in the course imposing a life without parole federal sentence on a juvenile offender. The panel opinion is available at this link, with Judge Johnnie Rawlinson authoring the majority opinion (joined by district judge David Ezra) and Judge Diarmuid O’Scannlain authoring the dissent.

The amicus brief which can be downloaded below argues, in short form, that “It is unreasonable — and unconstitutional — for a court to routinely apply the Sentencing Guidelines when a defendant is subject to a Guideline sentencing range of life without parole for a crime committed as a juvenile.” In longer form, here is the start of the brief's "Summary of Argument":

The Supreme Court’s Eighth Amendment jurisprudence has long stressed that youth must matter in sentencing. Nearly four decades ago, in Eddings v. Oklahoma, 455 U.S. 104 (1982), the Supreme Court, explaining why an offender’s age and maturity is critical to any assessment of just punishment, stressed that “youth is more than a chronological fact” and that “minors often lack the experience, perspective, and judgment expected of adults.” Id. at 115–16.  More recently, in a line of cases beginning with Roper v. Simmons, 543 U.S. 551 (2005) (holding that the Eighth Amendment forbids execution of juvenile offenders), and extending now through Montgomery v. Louisiana, 136 S. Ct. 718 (2016) (holding that the Eighth Amendment forbids sentencing a juvenile offender to life without parole unless his crime reflects irreparable corruption), the Court has developed substantive and procedural rules to operationalize the Eighth Amendment mandate that “children are constitutionally different from adults for purposes of sentencing.” Id. at 733 (quoting Miller v. Alabama, 567 U.S. 460, 471 (2012)); accord Graham v. Florida, 560 U.S. 48, 68 (2010).  This constitutional principle flows from the reality that children, compared to adults, are less mature, more susceptible to negative influences, and more capable of reform — and so any penological justifications for the harshest adult punishments “collapse in light of ‘the distinctive attributes of youth.’” Montgomery, 136 S. Ct. at 733–34 (quoting Miller, 567 U.S. at 472).  Thus, both sound sentencing policy and settled constitutional doctrine forbid a sentencing court from treating a juvenile as though he were an adult.

Yet that is precisely what the U.S. Sentencing Guidelines encourage sentencing courts to do.  Problematically, the Guidelines have no provisions that readily permit consideration of “the distinctive attributes of youth.”  The Guidelines — designed with adult offenders in mind — give no attention to any youth-related consideration in standard offense-level calculations, and they discourage consideration of age “in determining whether a departure is warranted” except in “unusual” cases. U.S.S.G. § 5H1.1.  Given that the Guidelines impart to sentencing courts a strong “anchoring” effect — as the Supreme Court has recognized, see Peugh v. United States, 569 U.S. 530, 541–42 (2013) — and that in a majority of cases judges do not deviate from the Guidelines range absent a government motion to do so, routine application of the Guidelines to juvenile offenders is fundamentally inconsistent with the Supreme Court’s Eighth Amendment jurisprudence.

The highly deferential standard of review that appellate courts apply to within-Guidelines sentences only exacerbates the tensions between standard Guideline-sentencing procedures and constitutional requirements.  Absent searching substantive review of Guidelines sentences, an appellate court risks endorsing a sentencing system that unconstitutionally discourages consideration of an offender’s youth and its attendant characteristics.  The Guidelines, if applied in their standard manner to a juvenile offender, thus result in a federal sentencing regime that is fundamentally inconsistent with the Eighth Amendment requirements articulated in Roper, Graham, Miller, and Montgomery.

Download FILED Briones Brief of Amici Curiae Criminal-Sentencing Scholars ISO Petition for Rehearing En Banc

A terrific pair of lawyers at Sterne, Kessler, Goldstein & Fox helped make this brief become a reality (and get filed), and I am also thankful to a group of academics who signed on to this brief.

July 24, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Monday, July 23, 2018

A father's perspective on clemency and its potential (and limits)

A helpful reader alerted me to this interesting new commentary authored by John Owen, headlined "A father's plea for mercy for his imprisoned daughter."  Here are excerpts:

President Donald Trump’s recent pardons and commutations have spotlighted, once again, the importance of executive clemency to soften the harshness of our criminal justice system.  President Abraham Lincoln was famous for preferring mercy over “strict justice.”  In fact, he used his clemency power so liberally, his attorney general had to assign someone to shadow him to record the names of all those he pardoned or commuted, according to author Margaret Love....

That’s how executive clemency is supposed to work.  It operates outside our rule of law, but it also respects it. It is the personal prerogative of the leader and so, inevitably, can be arbitrary.  It is also a message to our branches of government and to our society to mitigate our desire for vengeance with compassion....

I have spent the past nine years grieving the almost 20-year sentence imposed on my daughter, Mary Anne Locke, for her low-level, non-violent role in a meth distribution conspiracy.  She was ordered to report to federal prison in 2009, six weeks after she had a Cesarean section.  Along with her baby, she left behind a loving husband and two other children.

Mary Anne did not have an easy life, and I accept the role I played in that.... In her early teens, Mary Anne found drugs and men who were themselves substance abusers and also physically violent....  She relapsed at age 28, triggered by personal tumult, as well as health problems for which she was prescribed amphetamines. It was around this time that she became involved with the head of the meth conspiracy charged in her federal case. He gave her an unlimited supply of meth and, in return, embroiled her in a supportive capacity in his drug distribution activities.

Pregnant with her second child in 2007, Mary Anne again disavowed the drug lifestyle.  The indictment in her federal case was handed down in 2008, when she was pregnant with her third child, after two years of sobriety and a wonderful marriage with her then husband, who had no connection with her drug activities. She cooperated fully upon arrest, at considerable risk to herself.

Imagine our family’s devastation when she was sentenced to 234 months, or 19.5 years.  Murderers get less time. Although nationally, statistics indicate that defendants with her characteristics would receive an almost 50 percent reduction of their applicable guideline, the judge gave her just a 20 percent reduction.  Mary Anne was not the kingpin or organizer. She never engaged in or threatened any violence.  She played a supportive role to fund her addiction.  She had never spent more than a night in custody.  She is precisely the kind of low-level player deserving of leniency.

Rather, her sentence was driven by the charging decisions of the prosecutors she faced and the particular sentencing philosophy of her judge.  This judge has been critiqued as one of the harshest in the country.  In fact, she is the only sitting judge to have been subject to a commutation by Trump (the 27-year sentence of Sholom Rubashkin).  Moreover, today, not only would another judge give Mary Anne an almost 50 percent reduction of her applicable guideline, Mary Anne’s sentencing guideline would be substantially lower....

Needless to say, Mary Anne has served the top end of that guideline.  And she has done so with distinction.  She has been an exemplary prisoner — discipline-free, who has worked and studied consistently throughout her sentence, completing her final year in a three-year college program in office administration.  Don’t get me wrong.  Mary Anne broke the law and deserved punishment.  But her lengthy sentence violates any basic notions of justice and proportionality.  She deserves mercy.

She applied for clemency before President Barack Obama, and has again applied before President Trump.  She was represented in both applications by the Clemency Project at the University of Minnesota Law School.  I am a lifelong Republican. I am, however, forever grateful to Obama for bringing executive clemency back to its roots — to address systemic unfairness, while also acknowledging the humanity of each person behind bars.  I am also buoyed by Trump’s recent clemency decisions, and his pronouncements that he plans to use it even more expansively.

But nothing beats a legislative solution that grants my daughter — and the thousands of prisoners like her — a “second look” at the severity and fairness of their sentence, in a public proceeding, with a judge and an advocate.

July 23, 2018 in Clemency and Pardons, Drug Offense Sentencing, Offender Characteristics, Race, Class, and Gender, Sentences Reconsidered, Who Sentences | Permalink | Comments (16)

Thursday, July 19, 2018

"Assessing the Real Risk of Sexually Violent Predators: Doctor Padilla’s Dangerous Data"

The title of this post is the title of this new paper authored by Tamara Rice Lave and Franklin Zimring now available via SSRN. Here is its abstract:

This Article uses internal memoranda and emails to describe the efforts of the California Department of Mental Health to suppress a serious and well-designed study that showed just 6.5% of untreated sexually violent predators were arrested for a new sex crime within 4.8 years of release from a locked mental facility. 

The Article begins by historically situating sexually violent predator laws and then explains the constitutionally critical role that prospective sexual dangerousness plays in justifying these laws.  The Article next explains how the U.S. Supreme Court and the highest state courts have allowed these laws to exist without requiring any proof of actual danger.  It then describes the California study and reconciles its findings with those of a well-known Washington study by explaining the preventive effects of increasing age.  Finally, the Article explains how these results undermine the justification for indeterminate lifetime commitment of sex offenders

July 19, 2018 in Data on sentencing, Offender Characteristics, Reentry and community supervision, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (6)

Monday, July 16, 2018

Big Massachusetts Supreme Judicial Court upholds "drug free" condition of probation

The Massachusetts Supreme Judicial Court handed down this morning a decision in the closely-watched case of Massachusetts v. Eldred, No. SJC--12279 (Mass. July 16, 2018) (available here). The opinion starts this way:

Following a probation violation hearing, a judge in the District Court found that the defendant, Julie A. Eldred, had tested positive for fentanyl, in violation of a condition of her probation requiring her to abstain from using illegal drugs. The judge ordered that the conditions of her probation be modified to require her to submit to inpatient treatment for drug addiction. The defendant appeals from that finding and disposition.  The judge also reported a question drafted by the defendant concerning whether the imposition of a "drug free" condition of probation, such as appeared in the original terms of defendant's probation, is permissible for an individual who is addicted to drugs and whether that person can be subject to probation violation proceedings for subsequently testing positive for illegal drugs.

We conclude that, in appropriate circumstances, a judge may order a defendant who is addicted to drugs to remain drug free as a condition of probation, and that a defendant may be found to be in violation of his or her probation by subsequently testing positive for an illegal drug. Accordingly, we affirm the finding that the defendant violated her probation and the order requiring her to submit to inpatient treatment for her addiction.

July 16, 2018 in Criminal Sentences Alternatives, Drug Offense Sentencing, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (2)

Thursday, July 12, 2018

US Sentencing Commission releases big new report detailing "inconsistently" applied federal mandatory minimum prior drug offense enhancement

851_coverThe United States Sentencing Commission today issued this big new report, titled "Application and Impact of 21 U.S.C. § 851: Enhanced Penalties for Federal Drug Trafficking Offenders," which examines the use and impact of the huge mandatory sentence increases for drug offenders who have a prior felony drug conviction (which are almost solely in the control of prosecutors and often called 851 enhancements).  A summary account of the 59-page report can be found on this USSC webpage and this two-page "Report-At-A-Glance" publication.  Here are highlights from the web account:

This publication examines the application and impact of the statutory penalty enhancement for federal drug trafficking offenders with a prior felony drug conviction (21 U.S.C. § 851). To trigger these enhanced penalties, a prosecutor must file an information providing notice of which prior convictions support the enhanced penalties.

Using fiscal year 2016 data, this publication provides comparisons between all offenders who appeared eligible for an 851 enhancement, offenders for whom an 851 information was filed, offenders for whom an 851 information was filed and later withdrawn, and offenders who remained subject to the 851 enhancement at sentencing.  The analysis builds on the Commission's 2011 report to Congress, in which the Commission recommended that Congress reassess the severity and scope of 851 enhancements.

Key Findings

Cases in which an 851 enhancement applied are rare.

  • The government filed an 851 information against 757 drug trafficking offenders, which represents just 12.3 percent of 6,153 offenders eligible for an 851 enhancement in fiscal year 2016.
  • The number of offenders is even smaller after considering cases in which the government withdrew the 851 information or made a motion for substantial assistance relief.  There were only 583 cases in which the 851 information was not withdrawn by the time of sentencing, and only 243 offenders (3.9% of eligible offenders) who ultimately remained subject to an enhanced mandatory minimum penalty.

The 851 enhancements were applied inconsistently, with wide geographic variations in the filing, withdrawal, and ultimate application of the 851 enhancements for eligible drug trafficking offenders.

  • In the majority of districts in fiscal year 2016, at least one-quarter of all drug trafficking offenders were eligible for an 851 enhancement.
  • There was, however, significant variation in the extent to which the enhanced penalties were sought against eligible offenders, ranging from five districts in which an 851 enhancement was sought against more than 50 percent of eligible drug trafficking offenders to 19 districts in which the enhancement was not sought against any of the eligible offenders.
  • Districts also varied significantly in the rate at which an 851 information was filed and later withdrawn.  Several of the districts with the highest rates of filing an 851 information also had among the lowest rates of withdrawal. Conversely, some districts have higher rates of withdrawal even where they appear to be more selective in filing an 851 information.

The 851 enhancements resulted in longer sentences for the relatively few drug offenders to which they apply.

  • In fiscal year 2016, offenders against whom an 851 information was filed received an average sentence that was over five years longer (61 months) than eligible offenders against whom the information was not filed (147 months compared to 86 months).
  • Offenders who remained subject to an enhanced mandatory minimum penalty at sentencing had average sentences of nearly 19 years (225 months), approximately ten years longer than the average sentence for offenders who received relief from an enhanced mandatory minimum penalty (107 months) and nearly 12 years longer than the average sentence for eligible offenders against whom the information was not filed (86 months).

While 851 enhancements had a significant impact on all racial groups, Black offenders were impacted most significantly.

  • Black offenders comprised the largest proportion of drug trafficking offenders (42.2%) eligible for an 851 enhancement in fiscal year 2016.
  • Black offenders constituted the majority (51.2%) of offenders against whom the government filed an information seeking an 851 enhancement, followed by White offenders (24.3%), Hispanic offenders (22.5%), and Other Race offenders (2.0%).
  • Such an information was filed against nearly 15 percent (14.9%) of Black offenders who were eligible to receive an 851 enhancement. This rate was higher than the rates for White offenders (11.4%), Other Race offenders (11.7%), and Hispanic offenders (9.4%).
  • The prevalence of Black offenders was even more pronounced for offenders who remained subject to an enhanced mandatory minimum penalty at sentencing, with Black offenders representing 57.9 percent of such offenders.

The is much to be drawn from and said about this data, but an important first-take summary is that this report proves yet again how mandatory minimums controlled by prosecutors can often operate to create rather than reduce sentencing disparities. And, disconcertingly, here is yet another report suggesting that black defendants face the hardest brunt of these disparities.

July 12, 2018 in Data on sentencing, Detailed sentencing data, Drug Offense Sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Will guilty plea and statement, after another baby's death, deter reliance on faith-healing more than prior prison terms for Oregon church members?

The question in the title of this post is prompted by this remarkable local crime and punishment story out of Oregon, headlined "Faith-healing parents plead guilty in death of newborn twin.' Here are some essentials (with a few details emphasized) from a case that highlights the potential limits of traditional punishment to deter when individuals are motivated by an even higher power:

The parents of a twin girl who died hours after a home birth attended by dozens of people from the faith-healing Followers of Christ Church pleaded guilty Monday to negligent homicide and criminal mistreatment.  It marked the fifth criminal case in Clackamas County after a child's death in the church community over the last nine years but the first to end in a plea deal.  The mother, Sarah Elaine Mitchell, 25, and father, Travis Lee Mitchell, 22, each were sentenced to prison for six years and eight months.

In an unusual development, the Mitchells not only acknowledged their failure to provide necessary medical care for their newborn but also said in a statement read aloud by one of their lawyers that "everyone in the church should always seek adequate medical care for our children.''

Sarah and Travis Mitchell are members of the Followers of Christ, which traces its origin to the Pentecostal movement of the late 19th century. Sarah Mitchell is a granddaughter of the church founder, Walter White. Her father is also named Walter White.  Sarah Mitchell's father signed the statement, which will be prominently posted inside the church for all to read, under the terms of the plea agreement....

The guilty pleas came in a Clackamas County courtroom before more than 50 church supporters and Multnomah County Circuit Judge Eric J. Bergstrom, who who helped the parties reach a settlement.... Senior Deputy District Attorney Bryan Brock called the outcome of the case, with the couple accepting responsibility and issuing a public statement, a "landmark resolution."

"These are senseless and avoidable deaths, and we keep asking ourselves what will it take" to convince others in the church to get the right medical care for their children, Brock said.  He said he hoped the message will be for church followers to "seek medical attention and prayer. They're not mutually exclusive.''

Sarah Mitchell's lawyer Stephen Houze called the couple "utterly sincere, decent, caring human beings," who have suffered with the loss of one of their children while separated in custody. They have had in-jail visits with their surviving daughter, who is now 16 months old and bonding with each parent, Houze said. She remains in foster care. The parents are accepting responsibility for their actions "knowing a price must be paid," Houze said.

The Mitchells' baby died in the master bedroom at the Oregon City home of Sarah Mitchell's parents.  It was the same place where Sarah Mitchell's older sister Shannon Hickman delivered a premature baby boy who died eight hours after birth in September 2009.

The first of the twins, Evylen, was born in a breech position -- bottom first, a significant potential complication -- at 2:30 p.m., weighing only 3 pounds, 8 ounces, nearly two months premature. Twenty-three minutes later, Ginnifer was born at 2:53 p.m., weighing only 3 pounds, 6 ounces. Breathing problems persisted for both newborns but no one called 911 or took the girls to a hospital. At 4:36 p.m., a relative texted others, asking, "R u guys hearing that the second baby is dark and they r wanting prayers?" according to investigators.

Over four hours, Ginnifer fought for her life, trying to take oxygen into her underdeveloped lungs. At 6:05 pm., Travis Mitchell "laid on hands" and the family took turns praying for healing as the baby continued labored breathing and changed colors. Ginnifer died at 7 p.m. that day. "I knew she was dead when she didn't cry out anymore,'' her father said, according to court documents.

Both Sarah and Travis Mitchell admitted in interviews that their daughter's death was just like the Hickman case, Brock wrote in court papers.  A jury convicted Hickman and her husband of second-degree manslaughter and they were sentenced to six years and three months in prison for not seeking medical treatment for their son born at 32 weeks. "The Mitchells were more knowledgeable of the risks and consequences to their newborns from having experienced the Hickman case," Brock wrote in court documents.

Also present at the birth were Sarah Mitchell's in-laws, three mid-wife birthing assistants and other family, including Sarah Mitchell's eldest sister, Stephanie Edwards, and her husband, Brian, as well as church members....

"We hope that this office is never again forced to prosecute parents in the Followers of Christ Church for neglecting the medical care of their children," the Clackamas County District Attorney's Office said in a statement. "However, we continue to stand ready to do so if the members of that congregation do not heed the call of this family."

The couple showed no emotion in court. As each stood to be handcuffed by sheriff's deputies before they were led out of the courtroom, Travis Mitchell, a 2014 graduate of Oregon City High School, mouthed "I love you" to his parents. The Mitchells will get credit for the 13 months they've already been in custody and credit for good time served. They'll face three years of post-prison supervision.

I always find stories of parents convicted and imprisoned for allowing their children to die are always heart-wrenching, and I find it almost hard to believe that the same large family would allow two newborns to die in the same room in their house in seemingly the same way only years apart.  And, as the title of this post is meant to highlight, it is remarkable to realize that a prior manslaughter conviction with a significant prison term was itself not enough to deter the family from the same sort of criminal behavior the second time around.

For the sake of everyone involved, I sure hope a statement prominently posted inside the church will start leading these church members to see the importance of getting traditional medical care. But I can understand why prosecutors want to stress their willingness to keep prosecuting neglectful parents. 

July 12, 2018 in Offender Characteristics, Offense Characteristics | Permalink | Comments (4)

Wednesday, July 11, 2018

"Intellectual Disability, The Death Penalty, and Jurors"

The title of this post is the title of this new paper on SSRN authored by Emily Shaw, Nicholas Scurich and David Faigman. Here is its abstract:

In Atkins v. Virginia (2002), the United States Supreme Court held that intellectually disabled defendants cannot be sentenced to death; but since then, the Court has continued to grapple with how intellectual disability should be legally defined. Typically, however, it is jurors who determine whether a defendant is intellectually disabled and therefore categorically ineligible for the death penalty. Very little is known empirically about how jurors reason about and make these decisions.

This Article presents the results of a novel experiment in which venire jurors participated in an intellectual disability hearing and a capital sentencing hearing. The diagnosis of a court-appointed expert was experimentally manipulated (defendant is or is not intellectually disabled), as was the provision of information about the crime (present or absent). Jurors were considerably more likely to find the defendant not disabled when the expert opined that the defendant was not disabled.  They were also more likely to find the defendant not disabled when they learned about the details of the crime. Similarly, jurors were more likely to sentence the defendant to death after learning about the details of the crime, which increased perceptions of both the defendant’s blameworthiness and his mental ability.  These findings highlight the reality that jurors’ assessments of intellectual disability are influenced by crime information, contrary to pronouncements made by the United States Supreme Court, and they support the use of bifurcated disability proceedings, as some states have recently adopted.

July 11, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (8)

Sunday, July 08, 2018

Notable federal capital defendant claims his killing age (20) should make him ineligible for death penalty

The name Donald Fell is likely familiar to capital punishment followers: Fell was convicted and sentenced to death in federal court for the November 2000 abduction and slaying of Teresca King,but his initial conviction and sentence were thrown out after revelations of juror misconduct.  Prior to his retrial, his attorney's have brought a series of challenges to the federal death penalty.   This local article, headlined "Fell seeks to avoid death penalty based on age," reports on their latest filings:

Lawyers representing Donald Fell, who was charged in the 2000 homicide of a North Clarendon woman, are asking a federal judge to rule out the death penalty because Fell was 20 years old at the time of the alleged murder. A second trial is pending for Fell, 38, for the carjacking and kidnapping of 53-year-old Terry King.

Fell is accused of kidnapping King from the Rutland Shopping Plaza. Police said Fell and his friend, Robert Lee, took King to New York where she was bludgeoned to death. Fell was convicted of the crimes with which he’s now charged in 2005 and he was sentenced to the death penalty in 2006. However, Fell’s attorneys found evidence of juror misconduct and Fell’s conviction was overturned in 2014....

The motion by Fell’s attorneys, filed on Tuesday, referred to a 2005 U.S. Supreme Court decision from 2005 that found capital punishment is unconstitutional if the person convicted committed the crime before he or she was 18.  The motion, filed by San Francisco attorney Michael Burt, a member of Fell’s defense team, said the question of whether Fell was too young at the time he allegedly killed King had not been heard.

“Mr. Fell has had no opportunity to show that Roper‘s age-18 cutoff does not account for the current medical and scientific consensus that brain development is not completed by age 18, and that Mr. Fell’s particular development at age 20 is insufficient to justify capital punishment.  Simply put, his evidence will show that at the time of the offenses, Mr. Fell did not function as an adult with sufficient moral culpability for capital punishment,” the motion said.

Dr. James Garbarino also filed a brief discussing his findings working with young people dealing with severe violence.  He said doctors who had previously examined Fell found psychological problems but the science of brain development was not advanced enough at the time to recognize Fell’s problem was “developmental brain immaturity” from developmental delays.  “In the case of Donald Fell, his social history indicates he is just such an individual — growing up with much adversity, including psychological adversity such as experiences of parental rejection, and physical maltreatment, including physical traumas which may have resulted in insults to his brain,” Garbarino wrote....

The second half of the motion argued that society opposed the execution of young criminals. “Executing individuals barely old enough to vote or drink, unable to rent a car, unable to serve in Congress, and still in the throes of cognitive development — based upon now-disregarded views of culpability — undermines the Supreme Court’s commitment to dignity, and the possibility of rehabilitation and redemption,” the motion said.

Fell, through his attorneys, requested a hearing on the issue, followed by an order precluding the government from seeking the death penalty. Prosecutors have not yet responded to the 550-plus page motion.  Many of the exhibits in the motion were papers on the adolescent brain or court rulings on defendants who committed crimes while young, although only Kentucky was cited as banning the death penalty for someone younger than 21 rather than someone younger than 18.

Another motion, more than 1,100 pages long, was filed Tuesday seeking to stop prosecutors from having a mental health professional testify during the sentencing if Fell is convicted.

Prior related posts:

July 8, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (5)

Thursday, July 05, 2018

Interesting new Quick Facts report from US Sentencing Commission on "Women in the Federal Offender Population"

I am so pleased to see and to be able to report that the US Sentencing Commission is continuing to produce a steady stream of its insightful little data documents in its terrific series of reader-friendly "Quick Facts" publications.  Regular readers may recall from this prior post, roughly five years ago, the USSC started putting out these publications as a way to "give readers basic facts about a single area of federal crime in an easy-to-read, two-page format."

This month brings this new Quick Facts on "Women in the Federal Offender Population," and here are just a few data tidbits from the document that caught my attention:

July 5, 2018 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (0)

Saturday, June 30, 2018

"Originalism and the Common Law Infancy Defense"

The title of this post is the title of this new article by Craig Lerner now available via SSRN.  Though I consider any article about the Eighth Amendment to be timely, this one seems even more so with the recent retirement announcement of Justice Anthony Kennedy, who was often a "swing" SCOTUS voter in Eighth Amendment cases.  Here is this article's abstract:

Justice Thomas and the late Justice Scalia consistently argued that the original meaning of the Eighth Amendment was to foreclose only those modes or acts of punishment that were considered cruel and unusual at the time the Bill of Rights was adopted.  With respect to juvenile criminal responsibility, this would mean that the Constitution contemplated an infancy defense no broader than what existed in 1791.  Yet the common law infancy defense, as sketched by originalist judges, seems barbaric.  It treated all fourteen-year-olds as adults, and it permitted the imposition of punishment — even capital punishment — on offenders as young as seven.

This Article argues that the common law infancy defense was more nuanced than modern observers often recognize.  With respect to misdemeanors, the defense was more broadly applicable than is typical today.  Even with respect to felonies, offenders under the age of fourteen could be found liable only after an individualized inquiry as to their capacity to distinguish right from wrong.  The eighteenth-century culture and common law had higher expectations of juvenile abilities than prevail today; and not surprisingly, young people proved more mature than modern adolescents, who are told repeatedly that they are frail and vulnerable.

This Article speculates on how the original meaning of the Eighth Amendment, assuming it incorporates the common law approach to juvenile responsibility, might be applied to modern conditions, given the diminished maturity of young people.  However, the Article questions whether young people today are as immature as advertised; indeed, the study of the common law infancy defense could prompt a reconsideration of contemporary attitudes about the capacities of young people.

June 30, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (3)

Wednesday, June 27, 2018

Recommending FAMM's great new report "Everywhere and Nowhere: Compassionate Release in the States"

FammFamilies Against Mandatory Minimums (FAMM) now has at this link its big new report on compassionate release programs authored by Mary Price under the title "Everywhere and Nowhere: Compassionate Release in the States."  Here is how the report and related resources are introduced:

“Everywhere and Nowhere: Compassionate Release in the States,” is a comprehensive, state-by-state report on the early-release programs available to prisoners struggling with certain extraordinary circumstances, such as a terminal or age-related illness.

The report takes a deep dive into the regulations and requirements of these programs in each state, including the varying categories of release, eligibility criteria, and reporting. The analysis also reveals a troubling number of barriers faced by prisoners and their families when applying for early release.

The report is accompanied by a comparison chart, 21 recommendations for policymakers, and 51 individual state memos.

Here are more links to the resources from this report:

And here is an excerpt from the Executive Summary:

We were gratified to learn that 49 states and the District of Columbia provide some means for prisoners to secure compassionate release.  But we were dismayed to discover that very few prisoners actually receive compassionate release.

This report summarizes our findings. It describes the barriers and the best practices we uncovered and illustrates them with selected examples drawn directly from our research on individual states. Above all, we found that every state could improve compassionate release. Accordingly, this report closes with a set of recommendations for policymakers interested in bringing their state programs in line with best practices.

June 27, 2018 in Offender Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences | Permalink | Comments (1)

Monday, June 25, 2018

"Outraged By Kids In Cages? Look At Our Entire Juvenile Justice System."

The title of this post is the headline of this notable new HuffPost commentary authored by lawprof Cara Drinan, who is the author of The War on Kids: How American Juvenile Justice Lost Its Way (and who will be guest-blogging here come this August). Here are excerpts:

Last week, the nation witnessed an abrupt reversal from the White House. After claiming for days that he did not have the authority to address the family separation crisis at the border, President Donald Trump appeared to do just that with the stroke of a pen....

Trump’s reversal this week is progress; it’s a step in the right direction away from the inhumanity that the nation witnessed at the border. But let’s also be clear: There are vulnerable kids in cages in every state across America whose cases will not be affected by the president’s new order. In fact, on any given day there are approximately 50,000 juveniles being held in American correctional facilities, thousands of whom are in adult jails and prisons.

Despite inventing the juvenile court model in the late 19th century, the United States today is an international outlier in the severity of its juvenile justice practices. Today, every jurisdiction has some provision that permits a child to be charged as if they were an adult, and 23 states set no minimum age for employing this legal fiction.

Juveniles convicted in adult court are subject to lengthy mandatory minimums that were drafted with adults in mind. Juveniles can be housed in adult correctional facilities despite being extremely vulnerable to the risks of sexual and physical assault in those locations. Youth are subject to conditions of confinement that were designed for the most dangerous adult offenders, including mechanical restraints and even solitary confinement. Until 2005, we were the only developed nation to execute people for juvenile crimes, and today we are the only country that sentences children to die in prison.

Just like the migrant children crossing the border with their parents, American youth accused of a crime are typically traumatized and vulnerable. Our juvenile justice practices have hit poor, minority communities the hardest. Black youth are five times as likely as white youth to be detained, even as overall detention rates have fallen....

As we seek an end to family separation and the horrors of kids in cages at border facilities, we should also take a moment to reflect on our own domestic practice of keeping kids in cages. We should urge lawmakers to enact age-appropriate sentencing laws that reflect what brain science tells us: that juvenile brains really are different and that most kids simply outgrow delinquent tendencies. At the same time, we should offer education, substance-abuse treatment and therapy to those kids who enter the system rather than simply warehousing them and exacerbating their underlying trauma.

Just like the children of asylum-seekers crossing into America, juveniles accused of a crime are deserving of care and solicitude rather than condemnation and cruelty.

June 25, 2018 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (5)

Can we predict how federal immigration crackdowns will impact the modern drug war?

The question in the title of this post is prompted by this USA Today piece headlined "DOJ: Trump's immigration crackdown 'diverting' resources from drug cases." Here are excerpts:

Federal prosecutors warned they were diverting resources from drug-smuggling cases in southern California to handle the flood of immigration charges brought on by the Trump administration’s border crackdown, records obtained by USA TODAY show.

Days after Attorney General Jeff Sessions instructed prosecutors to bring charges against anyone who enters the United States illegally, a Justice Department supervisor in San Diego sent an email to border authorities warning that immigration cases “will occupy substantially more of our resources.”  He wrote that the U.S. Attorney’s Office there was “diverting staff, both support and attorneys, accordingly.”...

Sessions last month ordered federal prosecutors along the southwest border to bring criminal charges against every adult caught entering the United States illegally, a “zero tolerance” push meant to deter migrants. Those cases typically are seldom more than symbolic — most of the people who are charged are sentenced to no additional jail time and a $10 fee — but they have served as the legal basis for separating thousands of children from their parents at the border.

The border crackdown has produced a high-speed assembly line of minor cases in federal courts from California to Texas, more than doubling the caseloads there.  This month alone, USA TODAY identified more than 4,100 migrants who were charged with minor crimes after crossing into the United States from Mexico.

Kelly Thornton, a spokeswoman for the U.S. Attorney’s Office, said in a statement that the Justice Department “has given our district the necessary resources -- including 10 additional prosecutor positions plus at least five Department of Defense attorneys -- to prosecute all of these crimes.”  She said the number of smuggling cases prosecuted there is on track to go up this year.  Still, there are signs that border authorities are seeking to prosecute drug smugglers in state courts instead, even though the possible sentences typically are harsher in the federal system.

The District Attorney’s office in San Diego said Friday that the number of cases submitted to them by border authorities had more than doubled since the administration started its border crackdown.  Spokeswoman Tanya Sierra said Homeland Security agents referred 96 drug cases to the office between May 21 and June 21, compared to 47 over the same period last year.  Most of the cases involved more than a kilogram of drugs, Sierra said.

Meanwhile, the number of people charged in federal court has dropped since the start of the administration’s zero-tolerance push, said Reuben Cahn, the chief federal public defender in San Diego....

USA TODAY examined 2,598 written judgments in border-crossing cases filed in federal courts along the border since mid-May.  In nearly 70 percent of those cases, migrants pleaded guilty and immediately received a sentence of time served, meaning they would spend no additional time in jail.  Another 13 percent were sentenced to unsupervised probation, including a condition that they not illegally re-enter the United States.  In both cases, that meant they would immediately be returned to immigration officials to be processed for deportation, leaving them in essentially the same position as if they had not been prosecuted.

This newspaper analysis highlights just some ripple effects of any significant change in federal prosecutorial priorities: with more resources developed to federal immigration cases, there may be fewer federal drug cases brought; but more cases may be handed over to state authorities.  And, in various settings involving non-citizen subject, the results of state or federal prosecution may be impacted by the fact that deportation will follow any conviction.

June 25, 2018 in Drug Offense Sentencing, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (0)

Friday, June 22, 2018

Fourth Circuit affirms ruling that DC sniper Lee Malvo entitled to resentencing due to Miller and Montgomery

Last year, as reported in this prior post, a US District Judge concluded that infamous sniper Lee Boyd Malvo was entitled to re-sentencing as a consequence of Supreme Court rulings precluding mandatory life sentences for juvenile murderers.  Yesterday, the Fourth Circuit affirmed that decision in a unanimous panel ruling in Malvo v. Mathena, No. 17-6746 (4th Cir. June 21, 2018) (available here). This ruling gets started this way: 

In Virginia in 2004, a defendant convicted of capital murder, who was at least 16 years old at the time of his crime, would be punished by either death or life imprisonment without the possibility of parole, unless the judge suspended his sentence.  After a Virginia jury convicted Lee Boyd Malvo of two counts of capital murder based on homicides that he committed in 2002 when he was 17 years old, it declined to recommend the death penalty, and he was instead sentenced in 2004 to two terms of life imprisonment without parole, in accordance with Virginia law.  Thereafter, Malvo, again seeking to avoid the death penalty, pleaded guilty in another Virginia jurisdiction to one count of capital murder and one count of attempted capital murder — both of which he also committed when 17 years old — and received two additional terms of life imprisonment without parole.

After Malvo was sentenced in those cases, the Supreme Court issued a series of decisions relating to the sentencing of defendants who committed serious crimes when under the age of 18.  It held that such defendants cannot be sentenced to death; that they cannot be sentenced to life imprisonment without parole unless they committed a homicide offense that reflected their permanent incorrigibility; and that these rules relating to juvenile sentencing are to be applied retroactively, meaning that sentences that were legal when imposed must be vacated if they were imposed in violation of the Court’s new rules.  See Roper v. Simmons, 543 U.S. 551 (2005); Graham v. Florida, 560 U.S. 48 (2010); Miller v. Alabama, 567 U.S. 460 (2012); Montgomery v. Louisiana, 136 S. Ct. 718 (2016).

In these habeas cases filed under 28 U.S.C. § 2254, we conclude that even though Malvo’s life-without-parole sentences were fully legal when imposed, they must now be vacated because the retroactive constitutional rules for sentencing juveniles adopted subsequent to Malvo’s sentencings were not satisfied during his sentencings.  Accordingly, we affirm the district court’s order vacating Malvo’s four terms of life imprisonment without parole and remanding for resentencing to determine (1) whether Malvo qualifies as one of the rare juvenile offenders who may, consistent with the Eighth Amendment, be sentenced to life without the possibility of parole because his “crimes reflect permanent incorrigibility” or (2) whether those crimes instead “reflect the transient immaturity of youth,” in which case he must receive a sentence short of life imprisonment without the possibility of parole.  Montgomery, 136 S. Ct. at 734.

June 22, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (6)

Thursday, June 21, 2018

Split Michigan Supreme Court rejects Sixth Amendment challenge to state's new juve LWOP statute

Ruling 4-2, the Michigan Supreme Court issued a lengthy opinion yesterday upholding the procedures of its new juvenile sentencing statute.  The majority opinion in Michigan v. Skinner, No. 152448 (Mich. June 20, 2018) (available here), gets started this way:

At issue here is whether MCL 769.25 violates the Sixth Amendment because it allows the decision whether to impose a sentence of life without parole to be made by a judge, rather than by a jury beyond a reasonable doubt.  We hold that MCL 769.25 does not violate the Sixth Amendment because neither the statute nor the Eighth Amendment requires a judge to find any particular fact before imposing life without parole; instead, life without parole is authorized by the jury’s verdict alone.  Therefore, we reverse the judgment of the Court of Appeals in Skinner and affirm the part of Hyatt that held that “[a] judge, not a jury, must determine whether to impose a life-without-parole sentence or a term-of-years sentence under MCL 769.25.”  People v Hyatt, 316 Mich App 368, 415; 891 NW2d 549 (2016).  However, we reverse the part of Hyatt that adopted a heightened standard of review for life-without-parole sentences imposed under MCL 769.25 and that remanded this case to the trial court for it to “decide whether defendant Hyatt is the truly rare juvenile mentioned in [Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012)] who is incorrigible and incapable of reform.” Hyatt, 316 Mich App at 429. No such explicit finding is required.  Finally, we remand both of these cases to the Court of Appeals for it to review defendants’ sentences under the traditional abuse-of-discretion standard of review.

The dissenting opinion gets started this way:

There is much in the majority opinion with which I agree.  For example, I agree that if MCL 769.25 can reasonably be construed in a constitutional manner, we should so construe it.  And I generally agree with the majority’s discussion of the applicable legal principles.  But I respectfully dissent from the majority’s conclusion that there are two reasonable ways of interpreting MCL 769.25, one of which is constitutional.  Reading the statute as “murder-plus” would violate the Sixth Amendment under Apprendi v New Jersey, 530 US 466; 120 S Ct 2348; 147 L Ed 2d 435 (2000), and its progeny.  And I disagree with the majority that reading the statute as “murder-minus” cures all its constitutional deficiencies. In my view, reading the statute as murder-minus renders it unconstitutional under the Eighth Amendment as interpreted by the United States Supreme Court in Miller v Alabama, 567 US 460; 132 S Ct 2455; 183 L Ed 2d 407 (2012), and Montgomery v Louisiana, 577 US ___; 136 S Ct 718; 193 L Ed 2d 599 (2016). Read either way, MCL 769.25 suffers from a constitutional deficiency.

June 21, 2018 in Assessing Miller and its aftermath, Blakely in the States, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (5)

Wednesday, June 20, 2018

Suggesting home confinement as an incarceration alternative to avoid family separation back home

Tyler Cowen has this notable new commentary bringing home a controversy over immigration policies.  The piece is headlined "American Families Shouldn't Be Separated, Either: What if more parents, when convicted of crimes, were sentenced to house arrest for the benefit of their children?".  Here is how it starts and ends:

One of the worst American policies today is the decision of President Donald Trump’s administration to separate many immigrant parents from their children after they illegally cross the U.S. border.  Obviously, a case can be made for enforcing the border, but deliberate cruelty is never a good idea.  Those children — innocent victims all of them — will likely be traumatized for life.  I am uncomfortably reminded of the U.S.’s long history of separating parents and children from the days of slavery and during Native American removal and extermination.

If you agree with me on this, I’d like to push you one step further.  It’s horrible to forcibly separate lawbreaking parents from their young children, but we do that to American citizens, too.  According to one 2010 study, more than 1.1 million men and 120,000 women in U.S. jails and prisons have children under the age of 17.  These separations can be traumatic, and they help perpetuate generational cycles of low achievement and criminal behavior.

These problems are especially pressing for female prisoners and their children.  From 1991 to 2007, the number of children with a mother in prison more than doubled, rising 131 percent. About two-thirds of the women in state prisons are there for nonviolent offenses.  Sixty percent of those women have children under the age of 18, and in one survey one-quarter of the prisoners’ children were under the age of 4. Forty-one percent of the women in state prison had more than one child.

I have a simple proposal: Let’s take one-tenth of those women and move them from prison to house arrest, combined with electronic monitoring.  That would allow for proximity to their children.  If the U.S. isn’t plagued by a subsequent wave of violent crime — and I don’t think it will be — let us try the same for yet another tenth.  Let’s keep on doing this until it’s obviously not working.  In some of these cases the court might rule that the mother — especially if she is prone to child abuse or substance abuse — will not have full custody rights to her children.  Many other children, though, will benefit, and even visitation rights can help a child....

One estimate suggests that 11 percent of the children of imprisoned mothers end up in foster care.  This is not an area of investigation where data collection has been thorough or systematic, another sign of our neglect of the issue.  Nonetheless it seems that after the arrest of a parent, treatment of the children by the police is irregular across the country and often poorly handled.

In citing this evidence, I don’t mean to normalize the current treatment of illegal immigrant families — I consider it a moral disgrace.  What I am saying is that our treatment of outsiders is rarely an accident, and it so often mirrors how we have been treating each other all along.  That is yet another reason to be nicer to those who are most vulnerable.

June 20, 2018 in Collateral consequences, Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (4)

Split Second Circuit panel reverses lengthy child porn sentence for second time; dissent notes "sentence is barbaric without being all that unusual"

I do not tend to blog much any more about circuit opinions conducting reasonableness review because, now more than a decade since the Supreme Court ensured reasonableness review would be very deferential thanks to Rita, Gall and Kimbrough, few circuit sentencing opinions break any new ground.  But though a Second Circuit panel opinion yesterday, US v. Sawyer, No. 15-2276 (2d Cir. June 19, 2018) (available here), does not break new ground, it still struck me as blogworthy for both the majority opinion and the dissent.

The majority opinion in Sawyer is well summarized by the preamble to the opinion: 

Appeal from a judgment of the United States District Court for the Northern District of New York (D’Agostino, J.) imposing a sentence of 300 months of imprisonment for the offenses of producing child pornography and receiving child pornography. This court previously vacated as substantively unreasonable a sentence of 360 months of imprisonment for the same offenses, identifying specific deficiencies in the district court’s analysis. The district court did not sufficiently address those deficiencies on remand and suggested that it would have difficulty putting aside its previously-expressed views.

The key factor that appears to have driven the original panel opinion and this second reversal was the "the district court’s failure to give sufficient downward weight to the effect of the severe sexual abuse Sawyer endured at home throughout his childhood."  Tellingly, even at the second sentencing, the district court stressed that the guidelines called for 80 years in prison(!), suggesting no "failure to afford sufficient weight to the way [the defendant was] raised in determining [his] sentence, looking at the fact that [the original sentence] departed by 50 years from the [80 year] guideline range."  In this way in this case,  we can and should see how extreme guideline ranges can persistently distort a district court's sentencing decision-making even after a circuit court has concluded that the district court failed to comply with the requirements of the first time around 3553(a).

Beyond noticing the impact and import of broken guidelines even in a case in which everyone agrees they should not be followed, the Sawyer case struck me as blogworthy because of a (casual?) line in the dissenting opinion by Judge Jacobs. Here is the context for the line quoted in the title to this post, with my emphasis added:

In decrying the 25-year sentence, the majority opinion observes (fairly) that this case is not the most heinous or egregious on record.  At the same time, however, this is not a case such as United States v. Dorvee, 616 F.3d 174 (2d Cir. 2010), or United States v. Brown, 843 F.3d 74 (2d Cir. 2016), in which decades of imprisonment were imposed solely for looking at images created by others, and in which any harm to a child was inflicted at one or more removes. This defendant was hands-on.  He produced the pornography, and he used a 4-year-old and a 6-year-old to do it.  For these acts, a 25-year sentence is not a shocking departure from sentences routinely imposed in federal courts for comparable offenses — especially considering that the mandatory minimum is fifteen.  The sentence is barbaric without being all that unusual.

I appreciate the candor and yet remain stunned by Judge Jacobs stating simply that the defendant's sentence here is "barbaric" but yet not "all that unusual" and thus ought to be affirmed despite the obligation of circuit courts to review sentences for their reasonableness in light of the requirements of 3553(a).

June 20, 2018 in Booker in district courts, Booker in the Circuits, Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (7)

Tuesday, June 19, 2018

"Whether the Bright-line Cut-off Rule and the Adversarial Expert Explanation of Adaptive Functioning Exacerbates Capital Juror Comprehension of the Intellectual Disability"

The title of this post is the title of this new paper on SSRN authored by Leona Deborah Jochnowitz.  Here is its abstract:

This paper examines a sample of Capital Jury Project (CJP 1) cases with available trial transcripts in which jurors were presented with mitigating intellectual disability evidence and may have been confused by issues of proof, definitions, and extralegal factors.  It tests the hypothesis that jurors’ receptivity to mitigating intellectual disability (ID) was limited by their difficulties with the adversarial mental proof and clinical definitions needed to establish it.  Further the juror decision-making may have been obscured by distractions from extralegal factors, unrelated to the evidence like premature decision-making and heuristic shortcuts, pro-death bias, and racial prejudice.  It also examines whether the bright line cut-off rule, followed in some sample states prior to the Supreme Court decision in Hall v. Florida (2014), exacerbated jurors’ understanding of the disability, and encouraged popular stereotypes and misconceptions about intellectual disability.

In Kentucky, a state with the bright line cut-off rule, at the time these cases were decided, jurors were confused about a range of IQ scores and intellectual declines during developmental years. “IQ was perhaps not above what we consider a moron? I think they were contending that he had an IQ of 70 or 76 or so, had been tested as high as the 80s I recall.” (CJP KY death case #531, juror #725).  Even in non-bright line sample States like South Carolina, with no ID exemption at the time, jurors misunderstood the range of numerical IQ evidence. The study concludes that juror assessment of intellectual disability (ID) is variable.  Some jurors view ID as a more “organic” sympathetic disorder than other mental disorders, and they seem to understand it in practical, lay terms.  Yet, capital juror decision making is marred by extra-legal factors that impair consideration of the mitigating evidence.

The study concludes that juror misunderstanding regarding mitigating evidence has stubbornly persisted throughout the history of the Capital Jury Project and arises from shortcomings in human cognition which impede jurors’ moral consideration of intellectual disability evidence.  In light of these flaws, it may be impossible to avoid the unacceptable risk that persons with intellectual disability will be executed.  This study suggests that mildly intellectually disabled persons were indeed executed because jurors misunderstood the ID evidence and were persuaded by extralegal racial biases and premature decision making.

June 19, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (3)

Sunday, June 17, 2018

Focus on fathers behind bars on Father's Day

Last month, to mark Mother's Day, I collected in this post a lot of commentary about mothers in prison.  I have noticed far less comparable commentary to mark  Father's Day (perhaps because everyone is busy debating what Phil Mickelson did yesterday).  But I have seen these two new pieces authored by Pat Nolan:

June 17, 2018 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (3)

Thursday, June 14, 2018

Sixth Circuit panel struggles to figure out Tennessee law to assess Miller challenge in high-profile case

As reported in this local article, headlined "While considering Cyntoia Brown's case, appeals court scrutinizes conflicting sentencing laws," an interesting federal circuit panel struggled during oral argument today to sort through applicable state sentencing law in an interesting Eighth Amendment habeas case. Here are the details:

A federal appeals court seems poised to consult the Tennessee Supreme Court before they rule on the case of Cyntoia Brown, a Nashville woman serving a life sentence in prison for a murder she committed at 16.  Brown's attorneys this year appealed to the Sixth Circuit Court of Appeals in Cincinnati, arguing her life sentence was unconstitutional. The U.S. Supreme Court ruled in 2012 that giving juveniles life sentences without parole was cruel and unusual in most cases.

Brown, now 30, has been locked up since 2004, when she was convicted of shooting 43-year-old Nashville real estate agent Johnny Allen. Allen had picked her up at an East Nashville fast food restaurant and drove her to his home.  Prosecutors said she committed a cold blooded murder, then robbed Allen before she fled with his car. Advocates for Brown say she was a victim of child sex trafficking who feared for her life, and that her age and fetal alcohol syndrome made it impossible for her to consider the full ramifications of her actions.

Attorneys representing the state have argued the 2012 ruling from the U.S. Supreme Court does not apply in Brown's case because she is not serving a true life sentence. They cite parts of Tennessee law that suggest Brown could be eligible for release after 51 years behind bars.  The three-judge panel in Cincinnati suggested at multiple points that if she was serving a 51-year sentence, the U.S. Supreme Court ruling might not apply.

But Brown's attorneys pushed back, citing another section of the law that says "there shall be no release eligibility" for offenders convicted of first degree murder, like she was. Thorny questions on sentencing law in Tennessee dominated the debate on both sides of the oral arguments Thursday morning, which lasted less than an hour....

At multiple points, the judges read directly from contradictory passages in Tennessee code, as they tried to decipher what portions applied to Brown's case. They suggested that they might seek clarification from the Tennessee Supreme Court before moving forward.  Judge Joan L. Larsen, who was appointed by President Donald Trump, asked multiple questions about the proper way to do so.

Judge Amul Thapar, another Trump appointee, aggressively questioned the argument from state attorneys that case law had established a way to cherry pick parts of Tennessee sentencing law to apply to Brown while ignoring other parts. Thapar rubbed his face and shook his head while questioning attorneys on dueling sections of the law. "We're trying to guess what Tennessee is doing here," Thapar said, later adding, "The way I read this statute is that she's got life without the possibility of parole."

The Tennessee Court of Criminal Appeals has already sided with the state on this issue, saying that Brown's sentence is not entirely for life.  But Brown's attorneys say the Tennessee Court of Appeals issued a conflicting ruling.

Judge Julia Smith Gibbons, who was appointed by former President George W. Bush, said she couldn't believe a Tennessee court hadn't issued a definitive ruling on the appropriate reading of the sentencing law.  Gibbons said Brown's case "raises some interesting, tricky issues."

If the panel does ask the Tennessee Supreme Court to clarify sentencing in this case, that court could decide whether or not it would offer an answer. The appeals court would then take the response into consideration while ruling on the broader case.  "Can we certify that to the Tennessee Supreme Court and ask them?" Thapar said.  "If they're ever going to answer one question that's the one to answer."...

The judges did not address the argument from Brown's attorneys that she should not be held responsible for a premeditated murder at 16 because fetal alcohol syndrome had slowed her mental development.

The pending federal appeal is one of multiple tracks Brown's attorneys are pursuing in their high-profile attempt to get her out of prison.  Brown also is asking Gov. Bill Haslam for clemency; the state parole board made conflicting recommendations to the governor after a hearing in May. Brown's previous appeals have been denied.  But a surge of interest from news outlets, celebrities and national legal groups has galvanized efforts that are unusual for a case like hers.

Brown was featured in the documentary "Me Facing Life: Cyntoia's Story" by filmmaker Dan Birman. In 2016, a joint reporting project on juvenile sentencing laws by the USA TODAY NETWORK - Tennessee, Dan H. Birman Productions and "Independent Lens" explored Brown's trial and conviction in depth.  Then, in 2017, celebrities including Rihanna and Kim Kardashian West called for Brown's release, dramatically increasing the scrutiny of the case.  On social media, the hashtag #FreeCyntoiaBrown went viral.

June 14, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Monday, June 11, 2018

Spotlighting the role of prisons and jails as our modern mental health facilities

Esquire has this lengthy piece on modern prison realities that is notable for both its content and its author.  The full title and subtitled reveals its contents and author:

'THIS PLACE IS CRAZY': Our mental-health-care system is broken.  Ten of every eleven psychiatric patients housed by the government are incarcerated. Here’s what this crisis looks like from the inside—a series of lost lives and a few rare victories—as reported by a prisoner-journalist.

Here is the full bio from the article of the article's author:

John J. Lennon, a contributing writer at The Marshall Project, has written for Vice, The Atlantic, and The New York Times.  He is currently in Sing Sing Correctional Facility in Ossining, New York.  He will be eligible for parole in 2029.

And here is a snippet from the piece worth reading in full:

Nearly 20 percent of the fifty-two thousand prisoners in New York’s prison system — ten thousand in all — have mental illness.  The Department of Corrections and Community Supervision (DOCCS), which runs the state’s correctional facilities and supervises its parolees, is not alone: Nearly four hundred thousand of 2.2 million prisoners nationwide have a psychiatric diagnosis. Compare that with the thirty-eight thousand patients that the country’s state-run psych hospitals can accommodate.  The math is as easy as it is shocking: Ten out of every eleven psychiatric patients housed by the government are behind bars.

The financial toll is enormous: Treating prisoners with mental illness costs twice as much as providing community-based care.  State prisons spend an estimated $5 billion each year to imprison nonviolent offenders with a disorder.  As the National Alliance on Mental Illness says, “In a mental-health crisis, people are more likely to encounter police than get medical help.”  Jails and prisons have become our de facto asylums.

June 11, 2018 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (1)

Thursday, June 07, 2018

After SCOTUS rejected its standards, Texas Court of Criminal Appeals again rejects Bobby Moore's intellectual disability claim to preclude death penalty

As noted in this post last year, the US Supreme Court in Moore v. Texas, No. 15-797 (S. Ct. March 28, 2017) (available here), rejected the restrictive factors then being used by the Texas Court of Criminal Appeals to assess intellectually disability for death penalty ineligibility under the Eighth Amendment.  But the defendant in that case, as reported in this local article, has now had his intellectually disability claim rejected again by the Texas Court of Criminal Appeals.  Here are the basics:

The Texas Court of Criminal Appeals has upheld the death sentence of Bobby Moore in a case over the definition of intellectual disability — despite pleas from both Moore and the prosecution to change his sentence to life in prison.

More than a year ago, the U.S. Supreme Court knocked down Texas’ method of determining intellectual disability for death-sentenced inmates in Moore's case, ruling the state used outdated medical standards and rules invented by elected judges without any authority. In a 5-3 ruling on Wednesday, the all-Republican Texas Court of Criminal Appeals accepted the use of current medical standards to determine intellectual disability but said Moore still fails to qualify — making him eligible for execution.

Moore was sentenced to death nearly 38 years ago, three months after he walked into a Houston supermarket with two other men and fatally shot James McCarble, the 73-year-old clerk behind the counter, according to court documents....

In a new evaluation using the current medical framework, the majority of the Court of Criminal Appeals ruled that Moore still did not show enough adaptive deficits to qualify as intellectually disabled, citing the fact that he learned to read and write in prison and buys items from commissary — the prison’s store. The Supreme Court had warned against using strengths gained in a controlled environment like prison, but the Texas court said some of Moore’s deficits were due to the “lack of opportunity to learn,” according to the opinion written by Presiding Judge Sharon Keller.

The court’s opinion also noted that before the U.S. Supreme Court ruled in 2002 that people with intellectual disabilities were exempt from execution, Moore had claimed in court that he did not have a disability and that his difficulties were due to an abusive childhood and his lack of learning opportunities.

In a 67-page dissent, death penalty critic Judge Elsa Alcala, joined by Judges Bert Richardson and Scott Walker, said the court’s majority erred in its use of the current medical standards and that Moore is intellectually disabled. Alcala said the court disregarded the standards by improperly weighing Moore’s strengths against his deficits in his adaptive functioning and put too much weight on his progress in a controlled death row environment.

She cited the decision by the lower Texas court that held a live hearing on the issue, Harris County District Attorney Kim Ogg’s request for a change of sentence based on Moore’s deficiencies and many observations in the Supreme Court ruling that appeared to agree Moore was disabled. “I’m in good company in reaching this conclusion,” Alcala wrote. “There is only one outlier in this group that concludes that applicant is ineligible for execution due to his intellectual disability, but unfortunately for applicant, at this juncture, it is the only one that matters.”...

Though it hasn’t changed his sentence, the Supreme Court ruling in Moore’s case has had repercussions throughout Texas. At least two men on death row had their sentences changed to life in prison after the ruling, and on Tuesday, the Court of Criminal Appeals halted an execution set for June 21 because of the Moore case. The judges sent the case of Clifton Williams back to a lower court to look into claims of intellectual disability given the Supreme Court ruling.

Though Moore will remain on the row in solitary confinement, it seems unlikely he will get an execution date set while Ogg, a Democrat elected in 2016, is in office. Execution dates are set by convicting county courts after appeals have been exhausted, usually prompted by the district attorney’s office. And Ogg asked the Court of Criminal Appeals to change Moore’s sentence to life in prison last November, agreeing that he was intellectually disabled. Ogg did not answer a question from The Texas Tribune about seeking an execution date for Moore. Instead, she said in an emailed statement Wednesday afternoon that she anticipated the court’s decision to use “correct scientific standards” would immediately be applied to assess intellectual disability claims of other death row inmates, without mentioning Moore at all.

The 35-page majority opinion in Ex parte Bobby James Moore is available here, the 67-page dissenting opinion is available here.

June 7, 2018 in Death Penalty Reforms, Offender Characteristics, Sentences Reconsidered, Who Sentences | Permalink | Comments (0)

Sunday, June 03, 2018

Lots worth reading on eve of historic recall vote of Califorinia Judge Aaron Persky after his lenient treatment of Brock Turner

Regular readers surely already know a lot of the story and backstory surrounding the controversial sentencing of Brock Turner and the controversial recall campaign against the judge who sentenced him.  That recall campaign culminates in a vote this coming Tuesday, and that has prompted another notable round of media coverage.  Here are some recent media pieces with varying degrees of depth:

From CNN here, "Will voters bench the judge who gave a 6-month sentence in the Stanford sexual assault case?"

From the Los Angeles Times here, "Vandalism, threats, broken friendships: The heated campaign to recall judge in Brock Turner case"

From Vox here, "Brock Turner was sentenced to 6 months in jail for sexual assault. Now voters may recall the judge."

From HuffPost here, "When the Punishment Feels Like A Crime: Brock Turner's twisted legacy — and a Stanford professor's relentless pursuit of justice."

I would especially encourage readers to find the time to read the lengthy HuffPost piece, which is particularly focused around Stanford Law Professor Michele Dauber's work on the recall campaign.  The reporting in the piece stuck me as particularly thoughtful and balanced, and I learned new things big and small about the campaign and her efforts and goals.

Despite all this new reporting, I must note my own sense that there are still lots of angles on this case that are still not getting fully explored.  In particular, these articles and others only give passing mention of the fact that Turner was sentenced to a lifetime on the sex offender registry.  I have long speculated that this reality — which I believe was mandatory for his convictions — not only may have largely accounted for Judge Persky's short jail sentence, but also may have been a main reason Turner was unwilling to plead guilty and accept responsibility in the way the victim wished.  Ever since BuzzFeed published the full courtroom statement of Turner's victim (available here and recommended reading), I have always been struck by this passage: "Had Brock admitted guilt and remorse and offered to settle early on, I would have considered a lighter sentence, respecting his honesty, grateful to be able to move our lives forward. Instead he took the risk of going to trial, added insult to injury and forced me to relive the hurt as details about my personal life and sexual assault were brutally dissected before the public."   This passage still has me wondering about what kind of plea had been offered to Turner and whether the prospect of a lifetime on the sex offender registry was central to his decision to go to trial.

The CNN article linked above does make one (possibly overstated) point about the sex offender registry part of his punishment: "That's a penalty so burdensome that if Turner were to have children someday, he wouldn't be able to get near their school."  Of course, being on the registry for life means a whole lot more, too.  I continue to wonder not only if that reality influenced Judge Persky, but if other judges in California or around the nation regularly adjust their prison terms knowing the severe impact of the collateral consequences of sex offender registration.  I hear stories all the time of prosecutors and defense attorneys looking to "charge or plea around" particular crimes that carry sex offender registration or other severe collateral consequences.  If these collateral sanctions influence attorneys, surely they influence sentencing judges in various settings in various ways.  I would love to see more reporting on this element of the Turner case and Judge Persky's decision-making (recalling that Persky himself has been a state sex crimes prosecuot).  But perhaps only a sentencing nerd like me really cares all that much about this part of the story. 

In any event, readers can gear up for the recall election also by reviewing a number of prior posts here about the Brock Turner case.  I think it is fair to say that in these posts I have expressed various concerns about both the lenient sentence Turner received and about the campaign to recall Judge Persky.  Here is just a sampling of the prior posts this case has generated:

June 3, 2018 in Collateral consequences, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences | Permalink | Comments (9)

Monday, May 28, 2018

Sad uncertain realities behind ugly headline about child rape sentencing

The headline of this story understandably caught my attention and had me wondering: "California man sentenced to 90 days of house arrest for rape of 5-year-old girl."  A bit of digging revealed, via press reports here and here, a bit more of the story behind the story that would seem to partially explain this outcome.  Excerpts below come from the two linked pieces, respectively:

A 79-year-old man who pleaded no contest to felony statutory rape of a child was sentenced this week to 90 days' detention and will not have to register as a sex offender. The sentence upset the parents after they gave emotional testimony at the hearing....

Despite the word "rape," the crime did not involve penetration, said Robert Himelblau, supervising deputy district attorney for San Joaquin County. Gregory Davenport, an attorney for Burgess, said the charge is based on a claim by the girl's mother that she saw Burgess stick his hand down her daughter's pants in 2016.

At the hearing, the judge reminded the parents that they thought the plea agreement was fair when it was reached.... Davenport told the Associated Press on Friday that Burgess accepted the plea deal despite being innocent because he is in frail health and wanted to move on with his life. Burgess denies ever touching the child inappropriately. "The whole case was based upon some minor touching that my client denied even occurred," Davenport said....

Lyle Burgess, 79, was sentenced by San Joaquin County Superior Court Judge Ron Northup to either 90 days in an alternative-work program or in-home detention plus five years of informal probation. He does not have to register as a sex offender.

Burgess, who founded Rare Parts Inc. in Stockton in 1981 — an automotive parts manufacturer and distributor — will in all likelihood opt for in-home detention due to his frail physical and mental health, according to defense attorney Gregory Davenport. “My client maintains his innocence,” Davenport said outside the courtroom.

During Wednesday’s sentencing hearing, both parents of the victim gave emotional testimony about what their daughter has been going through, the impact on their family and their dissatisfaction with Burgess’ conviction. The parents’ names are not being used to protect the identity of the minor victim. “Our daughter has been harmed by this man continuously,” the victim’s mother said through tears, describing two incidents she says she witnessed between Burgess and her daughter at Burgess’ cabin in Calaveras County in the fall of 2016.

“I’m incredibly disgusted by his behavior and continuously disgusted by his lies,” she said before describing his sentence as “getting off so easy” and not registering as a sex offender. “I want other kids to be protected by possible future abuse by this man,” she said.

The victim’s father, who has known Burgess for more than two decades, said: “I don’t have too many prized possessions in this world other than my family. (My daughter) will remember this the rest of her life. She sleeps on the floor outside our room.”

Northup told the parents their statements do have an impact but “courts are somewhat limited” in ruling on a negotiated plea and reminded them that at the time it was reached, they felt it was fair.

The parents and the victim recently filed a civil case against Burgess seeking unspecified damages for sexual abuse and intentional infliction of emotional distress.... Davenport, Burgess’s attorney, said: “I believe the allegations are motivated by greed. They are using this instance to try to gain financially.”

I do not know the ins-and-outs of California plea and sentencing procedure, but these articles suggest that the sentence here was largely determined by the terms of a plea deal (and one that the parents of the victim assented to).  This other local article, notably, provides this additional (confounding?) account of matters from the prosecutors:

According to the San Joaquin County District Attorney's Office, Burgess' sentence was initiated by the county court because of his age and health.  When Burgess was arrested in 2016, he was originally booked on four counts of lewd acts upon a child.  The charge was later changed to unlawful sexual intercourse with a minor, though the DA says there were no allegations the girl was "sexually penetrated." Prosecutors say the plea deal was agreed upon by both Burgess and the girl's family.

I do not know what it means for this sentence to have been "initiated by the county court because of his age and health," but I do know it now sounds as if the sentencing judge largely attributes the outcome to the plea deal and the prosecutions largely attribute the plea deal to the sentencing judge.   As I see it,  sadness persists from every perspective in this case.  And I surmise from my Twitter feed that the case is generating anger, too, and I wonder if recall or other campaigns targeting the judge or DAs might be in the offing.

May 28, 2018 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sex Offender Sentencing, Victims' Rights At Sentencing, Who Sentences | Permalink | Comments (9)

Thursday, May 24, 2018

Amazing new empirical research in federal sentencing outcomes detailing disparities based on political background

This week brought this amazing new working paper by Alma Cohen and Crystal Yang titled simply "Judicial Politics and Sentencing Decisions." I did not want to blog about the paper until I had a chance to read it, and doing so make me want to now do dozens of blog posts to capture all the issues the paper covers and raises. The paper's simple abstract provides a hint of why the paper is so interesting and provocative:

This paper investigates whether judge political affiliation contributes to racial and gender disparities in sentencing using data on over 500,000 federal defendants linked to sentencing judge.  Exploiting random case assignment, we find that Republican-appointed judges sentence black defendants to 3.0 more months than similar non-blacks and female defendants to 2.0 fewer months than similar males compared to Democratic-appointed judges, 65 percent of the baseline racial sentence gap and 17 percent of the baseline gender sentence gap, respectively.  These differences cannot be explained by other judge characteristics and grow substantially larger when judges are granted more discretion.

Each of these three sentences could alone justify multiple postings on just research particulars: e.g., I believe a database with over 500,000 sentencings might be the largest ever assembled and analyzed; I wonder if the data looks different for Clinton and Obama judges among the Ds, for Nixon and Reagan and others judges among the Rs; I fear many judge characteristics like prior jobs and connections to certain communities are really hard to control for.  In other words, just the scope and methods of this research is fascinating.

Moreover and more importantly, there is great richness in the findings of the full paper.  For example, the authors find "statistically significant differences in racial gaps in base offense level and final offense level by judge political affiliation."  In other word, the authors have discovered worrisome disparities in how guideline ranges are set/calculated, not just in how judges sentence in reaction to a particular guideline range.   Some additional notable findings are summarized in this recent WonkBlog piece at the Washington Post headlined "Black defendants receive longer prison terms from Republican-appointed judges, study finds."  Here are excerpts:

Federal judges appointed by Republican presidents give black defendants sentences that are, on average, six to seven months longer than the sentences they give to similar white defendants, according to a new working paper from Alma Cohen and Crystal Yang of Harvard Law School.  That racial sentencing disparity is about twice as large as the one observed among judges appointed by Democrats, who give black defendants sentences that are three to four months longer than the sentences they give to white defendants with similar histories who commit similar crimes....

They did find, however, that the gap between sentences for black and white defendants was smaller for more-experienced judges than for less-experienced ones.  They also found that differences between how Republican and Democratic judges treat black and white defendants grew larger after the Supreme Court's 2005 decision in United States v. Booker, which gave federal judges much more leeway to depart from federal sentencing guidelines.

Importantly, however, they found that growing differences between Democratic and Republican judges in the post-Booker era are due to Democratic judges reducing disparities in how they sentence black and white defendants.  Given more discretion, in other words, Democratic judges treated defendants of different races more equally, while Republican judges continued to carry on as they had before.

Cohen and Yang also found one important geographical effect: Black defendants fared particularly poorly in states with high amounts of population-level racial bias, measured here by the percentage of white residents in a given state who believe there should be laws against interracial marriage.  These states tend to be clustered in the South, and previous research has shown a similar racial sentencing bias in these states when it comes to capital punishment.

Finally, they also observed an opposite effect in how Democratic and Republican judges treated female defendants: While all judges tended to hand down shorter sentences to women than to men charged with similar crimes, Republican judges were considerably more lenient to women.  “Overall, these results indicate that judicial ideology may be a source of the persistent and large racial and gender disparities in the criminal justice system,” Cohen and Yang conclude.

Anyone with any experience in the federal sentencing system knows full well how judicial ideology may be a source of the persistent and large disparities in the operation of the system. But reflecting on my own experiences as a defense attorney and expert in a number of federal sentencing settings, I am eager here to highlight how the impact of judicial ideology may be impacted by the work of other actors involved in the federal sentencing process. I often sense that those judges (perhaps disproportionately Republican Appointees) with an earned reputation as a "by the guideline" type may not consistently receive the same type of mitigating information from probation officers and defense attorneys as do those judges known often to depart or now vary.

If readers are as intrigued and engaged by this new paper as I am, please say so in the comments, and I may try to see if I can encourage some folks to write up some guest-postings about this research.

UPDATE: A helpful reader sent me this link to the full paper in case folks are not able to access it via the NEBR site.

May 24, 2018 in Booker in district courts, Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Race, Class, and Gender, Who Sentences | Permalink | Comments (10)

Wednesday, May 23, 2018

Disconcerting updated data on state prisoner recidivism from the Bureau of Justice Statistics

The Bureau of Justice Statistics has just released this notable "Special Report" that updates its data on criminal justice interactions of a huge cohort of state prisoners released in 2005.  This new report is titled "2018 Update on Prisoner Recidivism: A 9-Year Follow-up Period (2005-2014)." Here is how the document get started:

Five in 6 (83%) state prisoners released in 2005 across 30 states were arrested at least once during the 9 years following their release. The remaining 17% were not arrested after release during the 9-year follow-up period.

About 4 in 9 (44%) prisoners released in 2005 were arrested at least once during their first year after release. About 1 in 3 (34%) were arrested during their third year after release, and nearly 1 in 4 (24%) were arrested during their ninth year.

This report examines the post-release offending patterns of former prisoners and their involvement in criminal activity both within and outside of the state where they were imprisoned.  The Bureau of Justice Statistics analyzed the offending patterns of 67,966 prisoners who were randomly sampled to represent the 401,288 state prisoners released in 2005 in 30 states.  This sample is representative of the 30 states, both individually and collectively, included in the study (see Methodology).  In 2005, these 30 states were responsible for 77% of all persons released from state prisons nationwide.

There is lots more data in this report, and the data I always want to look at closely in there recidivism settings is what type of crime or activity led to re-arrest for these released prisoners. It appears, if I am reading the data correctly, that rearrests were significantly more common for drug or property crime than for violent crime. But still the data show a significant number of rearrests for violent crimes.

As is true for any detailed criminal justice data, these latest recidivism numbers can be spun in support of all sorts of sentencing argument. Some can say (and some surely will say) that disconcerting recidivism data shows why it is so important to enact meaningful sentencing and prison reform at all levels. Others can say (and surely will say) that disconcerting recidivism data shows why any reduction in prison sentences will result in more crime sooner.

May 23, 2018 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (8)

Saturday, May 19, 2018

Noting the distinctive juve sentencing realities to face the Texas school mass murderer

Yet another horrific school shooting, this time by a juvenile offender, provides yet another need to work through modern sentencing realities facing a mass murderers.  This local article reviews the sentencing basics under the headline "The accused Santa Fe shooter will never get the death penalty. Here’s why." Here are excerpts:

The high school junior accused of gunning down 10 students and teachers at a Santa Fe school is facing a capital murder charge - but he’ll never face the death penalty, even in Texas. Some day, he’ll even be eligible for parole.

Though Dimitrios Pagourtzis was charged as an adult and jailed without bond, even if he’s found guilty he can’t be sentenced to death because of a 2005 U.S. Supreme Court ruling. And in the Lone Star State, he can’t be sentenced to life without parole as the result of a 2013 law that banned the practice for minors....

The Santa Fe High School student admitted to the mass shooting that killed 10 and wounded 10 others early Friday, according to court documents. He planted fake explosives and selected his targets so as to spare the students he liked, he later told police.

For an adult, that sort of crime could lead to the death chamber.  Murders involving multiple victims can be charged as capital offenses, and for adults that leaves two options: death or life without parole.

At one time, those options were both on the table for teens, too. But then in 2005, Christopher Simmons, a Missouri killer condemned to die, won a landmark case in the Supreme Court. After surveying practices in death penalty states, the justices decided that the national consensus was against executing minors.  Only a few states — including Texas —  were the outliers still carrying out death sentences for those convicted of crimes committed as minors....

Before the court’s decision, Texas had been the biggest executioner of juvenile offenders, Dunham said.  Across the nation, there were 22 convicts executed for crimes committed as juveniles - and more than half of them were in Texas. After the court eliminated the practice, in June 2005 Gov. Rick Perry commuted a slew of death sentences to life, removing 28 prisoners from death row, including 12 from Harris County.

Then in 2012, the Supreme Court took it one step further when the justices struck down mandatory life without parole sentences for juveniles.  The following year, Texas legislators passed a law making life with parole — instead of life without parole — the only sentencing option for minors charged with capital crimes. For life sentences where parole is an option, Marzullo said, the first chance at release comes after 40 years in prison.

Whether or not he’s ultimately convicted, the accused Santa Fe shooter will be behind bars for the foreseeable future.  During his first court appearance Friday night, a judge opted to hold him without bond. "At the moment he's in solitary confinement," Judge Mark Henry said after the teen's first court appearance Friday evening. "He's going to be here a while."

Because Pagourtzis slaughtered 10 people and injured many more, his case has me wondering about the application of consecutive sentences under Texas laws to potentially extend the period in which a juvenile offender would not be eligible for parole under life sentences. As regular readers know, there is a robust debate in lower courts about whether and how the Supreme Court's announced Eighth Amendment jurisprudence limiting life without parole for juvenile offenders ought to be applied in cases in which a juvenile has committed multiple very serious crimes. That debate may well end up impacting how this latest school shooter gets sentenced.

May 19, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (11)

Interesting discussions of new prison units dedicated to offenders who are veteran

The start of this local article, headlined "Allegheny County Jail designates cell block for inmates who are veterans," really struck me:

The new veterans pod at the Allegheny County Jail made David Francis feel welcome in a way he didn't experience when returning from Vietnam.  “(The pod) gives veterans hope where there hadn't been any,” Francis said.  “We were not liked when we came back from Vietnam.  We weren't welcomed in coming home.  It wasn't like other wars.  So this is a blessing.”

Here is more from the piece:

An American flag and other patriotic images are also painted near the pod's entrance — the work of three inmates over the weekend. The paintings are the only visual difference between the pod and others in the jail. It consists of two levels of cells in a circle surrounding a common area, where jail and county officials held a news conference Monday.

The difference, though, will be the specialized services offered to veterans, as well as a chance to interact with their fellow veterans on a daily basis. “We decided we need to do something for the veterans in our facility and prepare them for a successful re-entry into society,” said Warden Orlando Harper, an Army veteran himself.

At least 86 prisons and jails across the country have pods designated for veterans. Many of them have been created in the past five years, according to an Associated Press report in January. Nationally, veterans account for about 8 percent of all inmates....

Placing many of the jail's veterans all in one place makes it easier for organizations to serve them, as well as less costly for the county, officials said. “We want more veterans assistance programs,” Harper said. Many have already committed to participate.

The Allegheny Intermediate Unit will offer workforce literacy classes, including help with cover letter and resume writing, according to a county news release. Veterans Administration Veterans Justice Outreach will help the inmates apply for enrollment in the VA health care system, discuss treatment options and legal issues, along with presentations on post-traumatic stress, suicide prevention and job opportunities.

Organizations Soldier On; PAServes; the Veterans Leadership Program; the Duquesne School of Nursing; and Veterans Thinking for Change-Pittsburgh Mercy also have committed to providing services.

The AP article referenced above is available at this link and reports on some encouraging data emerging from this form of prison reform:

Inmates and officials say the Albany pod is cleaner and less troublesome than other tiers. When a guard was attacked here in 2016 by an inmate from another unit, the pod inmates ran from across the common area to the guard’s aid.

“We send all these young men and women overseas and when they come back, a lot of them with PTSD, domestic violence, drug issues,” said Albany County Sheriff Craig Apple, who started the veterans pod more than three years ago. “And I just felt we could have treated them better or done something for them.”

Apple said 6 percent of the roughly 331 participating veterans in Albany over the years have returned to jail, far better than the typical jail recidivism rates of more than 40 percent.

It helps that Soldier On also provides post-release services like housing.  So when Tommy Hartmann was released from the Albany jail last year after 90 days he had a place to go. The 29-year-old Army veteran moved into Soldier On’s transitional housing in Leeds, Massachusetts. He also got a job with Soldier On, on the resident staff.

When the group helped serve a holiday meal recently, Hartmann returned to his old block to chat up inmates he knew. This time he wore khakis and a tie. And he got to go home at the end of the night. “They set me up to succeed when I got out,” Hartmann said before his visit. “Rather than just sitting on the tier, playing cards, watching TV, doing pushups, whatever, I was doing positive stuff toward my recovery and becoming a better part in society.”

These stories lead me to want to call modern prison reform efforts another important way to support our troops.

May 19, 2018 in Offender Characteristics, Prisons and prisoners, Reentry and community supervision | Permalink | Comments (0)

Thursday, May 17, 2018

Updated accounting of America's aging prison population

In this post four years ago, I spotlighted a notable white paper from The Osborne Association titled ""The High Costs of Low Risk: The Crisis of America’s Aging Prison Population." Today, via this Crime Report piece, I see that a new version of this paper is available at this link.  Here is the start of the Crime Report's review of its coverage:

At least one-third of the U.S. prison population will be over 50 by 2030, according to a white paper released Thursday by the Osborne Association.

The association, a New York-based advocacy group that works with justice-involved people and their families, cited figures showing that even as states are working to reduce prison populations, the number of older adults in prison and jail is projected to grow by a “staggering 4,400 percent” in the 50-year period between 1980 and 2030—to an estimated 400,000 people.

According to statistics quoted by the researchers, adults over 50 comprised just three percent of the total incarcerated population in 1993, representing 26,300 individuals.

“Justice isn’t served by keeping elderly people locked up as their bodies and minds fail them and they grow infirm and die,” said Elizabeth Gaynes, president and CEO of the Osborne Association, which advocates for improved conditions in prisons and jails, better discharge planning, and expanded compassionate release of the elderly and infirm. “It’s both inhumane and inefficient.”

According to the report, entitled “The High Cost of Low Risk: The Crisis of America’s Aging Prison Population,” extreme sentences doled out during the tough- on-crime era, as well as limited mechanisms for compassionate release, have driven what is now a costly and inhumane crisis that the corrections system is unequipped to manage.

The medical costs of caring for a burgeoning elderly population behind bars alone will add to the strains of resource-strapped corrections systems, many experts have said. According to data analyzed by the American Civil Liberties Union, it costs twice as much to incarcerate someone over 50; in some cases, it may cost up to five times more when medical costs are added.

Between 40 percent and 60 percent of prisoners over 50 have some type of mental illness or cognitive impairment, according to data from the Bureau of Justice Statistics. Some prisons are setting up makeshift hospice wings and opening nursing wards for people with serious cognitive degeneration.

Elsewhere, inmates suffer from such pronounced dementia that they are unable to follow rules, and may not remember why they are incarcerated. For many with cognitive, visual, or hearing loss, a diminished capacity leads to behaviors that are mistaken for disobedience, subjecting them to punishments such as solitary confinement.

Prisons were never designed to be geriatric care facilities and this surging elder incarceration comes at a high cost,” wrote the authors of the Osborne report. At the same time, research by the Pew Center on the States shows that incarcerated people over 50 pose little public safety risk, and have the lowest recidivism rate as any other inmate demographic.

May 17, 2018 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (15)

US Sentencing Commission releases new research report on "The Criminal History of Federal Offenders"

Cover_2018-crim-histAs reported via this webpage, the US Sentencing Commission has released a new research publication titled simply "The Criminal History of Federal Offenders." The full report, available here, has lots of notable data and charts and graphs, and here is how the USSC summarizes its contents and key findings on its website:

Summary

The publication The Criminal History of Federal Offenders provides for the first time complete information on the number of convictions and types of offenses in the criminal histories of federal offenders sentenced in a fiscal year.

While the Commission has collected the criminal history points and Criminal History Category (CHC) as determined under the guidelines, it has not collected complete information on the number of convictions or the types of offenses in the criminal histories of federal offenders until now. The Commission is now able to utilize recent technological improvements to expand the scope of information it collects on an offender’s criminal history and provide a more complete assessment of the criminal history of federal offenders. In completing this report, the Commission collected additional details about the criminal histories for 61,946 of the 67,742 federal offenders sentenced in fiscal year 2016 for whom complete documentation was submitted to the Commission.

Key Findings

Key findings of the Commission’s study are as follows:

  • Almost three-quarters (72.8%) of federal offenders sentenced in fiscal year 2016 had been convicted of a prior offense. The average number of previous convictions was 6.1 among offenders with criminal history.

  • Public order was the most common prior offense, as 43.7 percent of offenders with prior criminal history had at least one conviction for a public order offense.

  • A conviction for a prior violent offense was almost as common as prior public order offenses, as 39.5 percent of offenders with criminal history had at least one prior violent offense. Assault was the most common violent offense (29.5%), followed by robbery (8.1%), and rape (4.4%). Just under two percent of offenders with criminal history had a prior homicide offense.

  • The nature of offenders’ criminal histories varied considerably by their federal instant offense.  The substantial majority (91.7%) of firearms offenders had at least one previous conviction compared to about half of fraud (52.4%) and child pornography (48.2%) offenders.  Firearms offenders were also most likely to have violence in their criminal histories, as 62.0 percent of firearms offenders with a previous conviction had a violent previous conviction.  Fraud offenders were the least likely of offenders with criminal history to have a violent previous conviction (26.2%).

  • Most (86.6%) federal offenders with criminal history had convictions that were assigned criminal history points under the guidelines.  Offenders who had at least one three-point conviction were the most likely of all offenders with convictions to have a murder (3.8%) or rape/sexual assault (7.0%) offense in their criminal histories.

  • A criminal history score of zero does not necessarily mean an offender had no prior criminal history. Almost one in ten offenders (9.8 percent) in fiscal year 2016 had a criminal history score of zero but had at least one prior conviction.

May 17, 2018 in Data on sentencing, Detailed sentencing data, Federal Sentencing Guidelines, Offender Characteristics | Permalink | Comments (1)

Tuesday, May 15, 2018

Lots of juvenile sentencing developments as Oklahoma sorts through application of Miller

Last week brought interesting developments in the arena of juvenile sentencing in Oklahoma thanks to all three branches of the state government.   As this local article details, the Oklahoma legislature earlier this month passed, with some controversy, a new law to seeking to operationalize existing Eighth Amendment limits on LWOP sentences for juveniles:

Senate Bill 1221 would put sentencing for teen killers in the hands of a judge, not the jury that convicted them....  The bill passed Wednesday in the state Senate would require judges to determine sentencing based on a number of factors including the underage killers’ maturity, psych tests, and take jury’s out of the sentencing equation.

But some lawmakers cried foul. “We are going to circumvent an Americans right to equal protection under the law because the kid is 17 years old not 21,” said Senator AJ Griffin (R) Guthrie....  “It’s disrespectful to the citizens of this state that elected us and put us here in order to do our job. If an adult deserves a jury a kid deserves a jury,” Senator Griffin said.

As this excerpt indirectly reveals, because jury sentencing is the norm in Oklahoma, this new law would have created a distinctive judge-centric sentencing procedure just for juvenile murders in Oklahoma.  But before Oklahoma's Governor acted on this bill, the Oklahoma Court of Criminal Appeals (the state's highest criminal court) handed down a big new juve sentencing ruling in Stevens v. Oklahoma, 2018 OK CR 11 (Ok. Crim. App. May 10, 2018) (available here). Stevens is yet another notable example of another state court working through just how Miller and Montgomery should be applied, and it includes these notable passages (with most cites removed):

In all future trials where the State intends to seek a sentence of life without the possibility of parole for an offender who committed his or her offense under the age of eighteen (18) years of age the State shall give notice of this fact by stating at the bottom of the Information in bold type: "The State is seeking the punishment of life without the possibility of parole for the offense of Murder in the First Degree, as Defendant (state last name here) is irreparably corrupt and permanently incorrigible." See Parker v. State, 1996 OK CR 19, ¶ 24, 917 P.2d 980, 986 (adopting notice pleading). Both parties shall be afforded full discovery on this issue in accordance with established discovery law. 22 O.S.2011, § 2001 et seq. The assigned trial judge has the authority under our Discovery Code to issue any orders necessary to accomplish this task.

The Sixth Amendment demands that the trial necessary to impose life without parole on a juvenile homicide offender must be a trial by jury, unless a jury is affirmatively waived. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). The defendant's trial shall be bifurcated and the issue of the defendant's guilt shall be separately determined from the enhancement of his or her sentence.... [E]ach party shall be afforded the opportunity to present evidence in support of its position as to punishment in the second stage of the trial. The trial court shall submit a special issue to the jury as to whether the defendant is irreparably corrupt and permanently incorrigible....

It is the State's burden to prove, beyond a reasonable doubt, that the defendant is irreparably corrupt and permanently incorrigible. Luna, 2016 OK CR 27, ¶ 21 n. 11, 387 P.3d at 963 n. 11; see also Ring v. Arizona, 536 U.S. 584 (2002) (holding facts increasing punishment beyond the maximum authorized by a guilty verdict must be proven beyond a reasonable doubt). The State shall have the opportunity to present any evidence tending to establish this fact subject to the limitations of 12 O.S.2011, § 2403. Generally, this will include, but not be limited to, evidence concerning the defendant's: (1) sophistication and maturity; (2) capability of distinguishing right from wrong; (3) family and home environments; (4) emotional attitude; (5) pattern of living; (6) record and past history, including previous contacts with law enforcement agencies and juvenile or criminal courts, prior periods of probation and commitments to juvenile institutions; and (7) the likelihood of the defendant's rehabilitation during adulthood. See Luna, 2016 OK CR 27, ¶ 20, 387 P.3d at 962; Cf. 10A O.S.2011, § 2-5-205(E).

Similarly, the defendant must be permitted to introduce relevant evidence concerning the defendant's youth and its attendant characteristics. Miller, 567 U.S. at 489 ("[A] judge or jury must have the opportunity to consider mitigating circumstances before imposing the harshest possible penalty for a juveniles."). Generally, this will include, but not be limited to, evidence concerning the defendant's: "(1) chronological age and its hallmark features--among them, immaturity, impetuosity, and failure to appreciate risks and consequences; (2) the incompetencies associated with youth--for example, his inability to deal with police officers or prosecutors (including on a plea agreement) or his incapacity to assist his own attorneys; and (3) whether the circumstances suggest possibility of rehabilitation." Luna, 2016 OK CR 27, ¶ 20, 387 P.3d at 962 (quotations and citation omitted).

If the sentencer unanimously finds that the defendant is irreparably corrupt and permanently incorrigible it is then authorized to consider imposing a sentence of life without the possibility of parole.  If the sentencer does not make this finding it is prohibited from considering a sentence of life without the possibility of parole and may only impose a sentence of life imprisonment.

Notably, Oklahoma's Governor followed up all this activity by vetoing the bill that would allow for juvenile sentencing to be before a judge.  Gov Mary Fallin's veto statement here states:

Senate Bill 1221, also known as the Alyssa Wiles Juvenile Life Without Parole Sentencing Act, has provisions that, are in my opinion, in violation of the United States Supreme Court decision in Miller v. Alabama, 567 U.S. 460, 132 SCt. 2455, 183 L.Ed.2d 407. That decision was followed by the Oklahoma Court of Criminal Appeals in its decision rendered May 10, 2018, in Roberts A. Stevens v. The State of Oklahoma. Case No. PC-2017-219.

In case anyone cares, I believe there is at least a plausible argument that Apprendi jurisprudence does not demand that a jury make the essential "findings" that Miller and Montgomery seem to make constitutionally required under the Eighth Amendment for sentencing a juvenile to life without parole.  Readers with long memories may recall that I have long argued that Blakely's Sixth Amendment rule makes most sense only when applied to offense facts rather than to offender characteristics.  The Supreme Court has vaguely, but not conclusively, rejected such a conceptual distinction in the reach of the Sixth Amendment.  But even though I can see possible constitutional uncertainty as to how offender-eligibility factors are must be adjudicated under the Supreme Court's Sixth and Eighth Amendment jurisprudence, I think it may well be sound practice for these kinds of determinations to be given to juries (perhaps particularly in a state with a strong tradition of jury involvement in sentencing decision-making).

May 15, 2018 in Assessing Miller and its aftermath, Blakely Commentary and News, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences | Permalink | Comments (3)

Monday, May 14, 2018

"Killer Nanny" gets LWOP sentence plus 50 years for murdering kids in her care

Though I am never quite sure how often to blog about individual cases, I sometimes cannot resist reporting on the high-profile sentencing of defendants who get notorious monikers.  Today, as reported in this New York Daily News piece, the "Killer Nanny" got sentenced.  Here are some details:

The Upper West Side nanny who butchered two helpless children in 2012 was sentenced to life in prison without parole plus 50 years Monday, capping a harrowing story that has gripped the city for nearly six years.

Yoselyn Ortega, 55, was convicted of first-degree murder on April 18 after a heartbreaking two-month trial in Manhattan Supreme Court. The conviction, which carries a mandatory sentence of life without parole, sealed her fate of never seeing the light of day as a free woman.

It provided a much-needed measure of relief for the parents of 6-year-old Lulu and 2-year-old Leo Krim, who were savagely slain in the bathroom of their W. 75th St. home on Oct. 25, 2012, while the mom was out at a swim class with their middle sibling Nessie, then 3.

The children's parents, Kevin Krim, 42, and Marina Krim, issued statements thanking the judge and jurors and the district attorney's office. Marina Krim, 41, went a step further, and called out the "evil defendant" and her "entire family of bad, unethical people." Her husband echoed her sentiments, but dedicated his statement to memories of their two slain children....

At trial, Ortega's lawyer argued she should be found not responsible by reason of mental disease or defect — a bid the jury rejected after weeks of psychiatric testimony from experts on both sides. Ortega stabbed and slashed the adorable children in the rear bathroom of the second-floor apartment of the La Rochelle before plunging a kitchen knife into her own throat in a failed suicide attempt.

She settled her affairs by leaving her important documents for her sister and family heirlooms for her 17-year-old son — which prosecutors argued was proof she was of sound mind when she planned the unthinkable acts of that day.

Assistant District Attorney Stuart Silberg argued she was driven by spite aimed at Marina and rage over her own personal failures. "It was her intention to take their lives and to destroy the family," he said at the sentencing. "This defendant to this day has shown no remorse. She has never shed a tear for these children. Why isn't she in tears now?"

Little Lulu, who desperately tried to defend herself, sustained about 30 knife wounds, many defensive, while her kid brother suffered about five. Ortega cut them both across the throat leaving the tots no chance for survival. "Every stab, every slash — each one had a purpose and that purpose was to end the lives of those children," Silberg argued in summations....

Ortega also cried a little just before the sentence was imposed, framing herself as the real victim. "I'm very sorry for everything that happened, but I hope that no one goes through what I have gone through," she told the court.

May 14, 2018 in Offender Characteristics, Offense Characteristics | Permalink | Comments (6)

A couple dozen Dimaya GVRs in federal criminal cases in latest SCOTUS order list

The US Supreme Court this morning handed down this order list, and criminal justice fans should take notice of the significant number of federal criminal cases in which certiorari is granted followed by the "judgments are vacated, and the cases are remanded to the United States Court of Appeals ... for further consideration in light of Sessions v. Dimaya." 

Based on a quick scan, it would appear that SCOTUS has now "GVRed" at least one of every type of post-Dimaya case that John Elwood flagged in this SCOTUSblog "Relist Watch" post a few weeks ago (though in one case it appears SCOTUS said the GVR was to allow further consideration in light of Beckles).

Long story short: the fall-out from the Dimaya vagueness ruling seems likely to take many months (perhaps years) and many rulings to sort out.  Of course, I said this same thing about the Johnson vagueness ruling in 2015, and Dimaya et al three years later is really just itself one big part of the post-Johnson fall-out.  And because Johnson was fundamentally the product of the late Justice Scalia's continued railing against the residual clause of the Armed Career Criminal Act, the long tail of the Johnson/Dimaya jurisprudence serves as an interesting (and perhaps never-ending) part of his constitutional legacy.

May 14, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter, Who Sentences | Permalink | Comments (0)

Sunday, May 13, 2018

Mother's Day review of moms in incarceration nation

Growing awareness and concern with incarceration levels in the US are reflected in the significant number of articles I have noticed this week discussing incarcerated mothers.  I figure Mother's Day is a fitting day to round-up some of these recent pieces:

From The Crime Report here, "Mother’s Day Behind Bars"

From Teen Vogue here, "Mother's Day Needs to Be Inclusive of Incarcerated Moms, and Here’s How You Can Help"

From USA Today here, "In remembering her own mother, activist and attorney makes Mother's Day plea for incarcerated women"

From Jezebel here, "Mothers Are Incarcerated at Record Rates, Yet Prison-Nursery Beds Go Empty"

From Leafy here, "9 Ways to Help Moms Jailed for Cannabis"

From Yahoo here, "Mom serving 16 years for marijuana pens Mother's Day letter to daughters: 'I'm dreaming of your sleepy faces'"

May 13, 2018 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender | Permalink | Comments (2)

Thursday, May 10, 2018

Oregon Supreme Court upholds 112-year aggregate sentence for juve mass murderer Kip Kinkel

A helpful reader made sure I did not miss the notable Oregon Supreme Court's ruling today in Kinkel v. Persson, 363 Or 1 (Oregon May 10, 2018) (available here). The defendant in this case, Kip Kinkel, is a high-profile juvenile offender because back in 1998, at age 15, he killed his parents and then the next day at his high school shot two classmates and wounded 25 others.  The start of the Oregon Supreme Court majority opinion explains the sentencing proceedings and the court's ruling: 

Petitioner pled guilty to four counts of murder and 25 counts of attempted murder, as well as pleading no contest to a twenty-sixth count of attempted murder.  As part of a plea bargain, petitioner and the state agreed that he would receive concurrent 25-year sentences for the four murders.  They also agreed that each side would be free to argue that the mandatory 90-month sentences for each of the attempted murders should run consecutively or concurrently.  After a six-day sentencing hearing, the trial court ordered that 50 months of each 90-month sentence for attempted murder would run concurrently but that 40 months of each of those sentences would run consecutively to each other and to the four concurrent 25-year sentences. As a result of that ruling, petitioner’s aggregate sentence totals slightly less than 112 years.

In this post-conviction proceeding, petitioner argues that, because he was a juvenile when he committed his crimes, the Eighth Amendment prohibits the imposition of an aggregate sentence that is the functional equivalent of a life sentence without the possibility of parole. Petitioner’s federal argument entails primarily three issues.  The first is whether, as a matter of state law, petitioner’s Eighth Amendment claim is procedurally barred.  See ORS 138.550(2) (barring post-conviction petitioners from raising grounds for relief that were or reasonably could have been raised on direct appeal); Verduzco v. State of Oregon, 357 Or 553, 355 P3d 902 (2015) (applying a related statute).  If it is, the second issue is whether Montgomery v. Louisiana, ___ US ___, 136 S Ct 718, 193 L Ed 2d 599 (2016), requires this court to reach petitioner’s Eighth Amendment claim despite the existence of that state procedural bar.  Third, if petitioner’s Eighth Amendment claim is not procedurally barred, the remaining issue is whether and how Miller v. Alabama, 567 US 460, 132 S Ct 2455, 183 L Ed 2d 407 (2012), applies when a court imposes an aggregate sentence for multiple crimes committed by a juvenile.

As explained below, we hold that, even if ORS 138.550(2) does not pose a procedural bar to petitioner’s Eighth Amendment claim, his claim fails on the merits.  More specifically, the issue in Miller was whether the Eighth Amendment prohibited a juvenile from being sentenced to life imprisonment without the possibility of parole for a single homicide.  The Court held that such a sentence could be imposed but only if the trial court found that the crime reflected irreparable corruption rather than the transience of youth.  The Court did not consider in Miller whether a juvenile who has been convicted of multiple murders and attempted murders, as in this case, may be sentenced to an aggregate consecutive sentence that is the equivalent of life without the possibility of parole.  This case thus poses a different issue from the issue in Miller.  Beyond that, we conclude that the facts in this case, coupled with the sentencing court’s findings, bring petitioner within the narrow class of juveniles who, as Miller recognized, may be sentenced to life without the possibility of parole.

May 10, 2018 in Assessing Miller and its aftermath, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered | Permalink | Comments (3)

Wednesday, May 09, 2018

Lots of sentencing fun — thanks to enduring Johnson fallout — to be found in cert pool relists

The Justice of the Supreme Court will have a conference tomorrow to discuss cert petitions, and that means John Elwood has another of his always valuable "Relist Watch" posts up at SCOTUSblog. This version of relists has lots that should interest sentencing fans, and I will reprint those parts here:

Before we head on to this week’s new relists, a word about the old. The big tangle of Sessions v. Dimaya relists returns this week. During the intervening week, yet another court of appeals has weighed in on one of the issues awaiting resolution in the wake of Dimaya, namely whether yet another criminal code provision defining “crime of violence” with a problematic residual clause, 18 U.S.C. §924(c)(3)(B), is unconstitutionally vague in light of Johnson v. United States (and now Dimaya). The U.S. Court of Appeals for the 10th Circuit has now weighed in, favoring defendants. These Section 924(c)(3)(B) cases strike me as the best candidates of the remaining Dimaya relists for an outright grant. But we’ll see soon whether four justices agree, or whether they call an audible and do something else....

Lester v. United States17-1366, would justify readers in feeling a bit of déjà vu all over again.  The case presents the question whether the residual clause of the career offender sentencing guideline was unconstitutionally vague back before United States v. Booker when the Sentencing Guidelines were still mandatory.  If that seems as familiar as Indiana Jones 4, that very question is already before the court in a number of serial relists: Allen v. United States17-5684Gates v. United States17-6262James v. United States17-6769 (all relisted nine times) and Robinson v. United States17-6877 (relisted seven times).  This case is unusual in that the improbably named petitioner Stoney Lester filed his petition before the court of appeals had even ruled on his case, and certiorari before judgment is a rare (and rarely successful) move.  Lester’s petition was filed after Allen and Gates and James had already been relisted five times, making me wonder whether my boy Jack rushed to file a petition hoping the court would pick this case to be the sole combatant on this issue.  This case has one benefit: According to Lester, his case, alone among all cases presenting the question, was granted a certificate of appealability by the relevant court of appeals.  But the government waived its right to file a responsive brief, so unless the court calls for a response, Lester is a longshot for bringing home the roses.

Finally, I am at a loss for what might have enticed the court to relist Kitchen v. United States17-7521.  Neither of the issues it presents is very promising.  First, the petitioner argues that a prior Florida conviction for drug trafficking that rests upon the mere possession of drugs does not qualify as a “controlled substance offense” for purposes of a federal sentencing guidelines enhancement, because the Florida statute lacks an element of intent to distribute.  But the case simply involves the construction of one of the sentencing guidelines, and the court usually just allows the Sentencing Commission to resolve such splits.  The other issue the petition raises — whether the federal prohibition on felons possessing firearms exceeds Congress’ authority under the commerce clause when applied to intrastate possession of a handgun — is interesting, but splitless, and would be reviewed only for plain error because Kitchen did not raise it in district court. Which raises the question why this case is here. Did the cert-pool author have too much vino rosso? Maybe the court simply kept the case around because of the petitioner’s unusual name: Sadonnie Marquis Kitchen.

May 9, 2018 in Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Vagueness in Johnson and thereafter | Permalink | Comments (0)

Tuesday, May 08, 2018

"Are Elderly Criminals Punished Differently Than Younger Offenders?"

The question in the title of this post is the headline of this new piece at HowStuffWorks.  The question is prompted by the upcoming sentencing of 80-year-old Bill Cosby, and I had the pleasure of speaking to the reporter on the topic.  Here are excerpts from the piece (with a few links from the original):

After Bill Cosby's recent conviction in a Montgomery County, Pennsylvania court on three counts of aggravated indecent assault, the judge in the case rejected the prosecution's request that the 80-year-old comedian and actor, who his attorneys say is legally blind, be sent immediately to jail pending sentencing.   "With his age, his medical condition, I'm not going to simply lock him up right now because of this," Judge Stephen T. O'Neill explained when he allowed Cosby to remain at home on bail as he awaits sentencing, according to the Philadelphia Inquirer.

Some think that decision gives a hint of how Cosby's sentencing will go.  Under the law, he could receive as much as 30 years in prison, and the state's sentencing guidelines recommend between five-and-a-half and nine years.  But as CNN reports, many legal experts suspect that Cosby may get a lesser sentence, at least in part because of his age and health.

The Cosby case raises a discomforting question.  Should elderly offenders be treated more leniently by the courts than younger criminals, because they have less time left to live, and because their physical frailty might make it more difficult for them to survive a prison term?....

The relatively few studies on the subject suggest that judges do often give older offenders a break.  One study published in the Journals of Gerontology: Series B in 2000 found that in Pennsylvania courts, offenders in their 60s were 25 percent less likely to be sentenced to prison than those who were in their 20s, and their sentences were eight months shorter on average.  Those who were in their 70s got an even sweeter deal — they were 30 percent less likely to end up behind bars than 20-somethings, and those who were incarcerated served 13 months less on average.

More recently, a study by Arizona State University researchers, published in 2014 in the journal Criminal Justice Studies, similarly found that in the federal court system, judges gave older offenders a "senior citizen discount" when it came to jail time.

Prior related posts:

May 8, 2018 in Celebrity sentencings, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (9)

Saturday, May 05, 2018

"A Rational Approach to the Role of Publicity and Condemnation in the Sentencing of Offenders"

The title of this post is the title of this interesting article recently posted to SSRN authored by Mirko Bagaric and Peter Isham. Here is the abstract:

The punishment imposed on criminal offenders by courts often does not exhaust the hardship they experience.  There are a number of collateral forms of punishment that many offenders are subjected to as a result of their offending.  Some of these deprivations are institutional, such as being dismissed from employment or being disqualified to vote. Other hardships are less predictable and harder to quantify.  Public scorn, often directed towards high profile offenders, such as O.J. Simpson and Anthony Weiner, can be the cause of considerable additional suffering to offenders.  It can engender feelings of shame, embarrassment and humiliation.  At the same time, the high profile nature of the cases provides courts with an opportunity to demonstrate to the wider community the consequences of violating the law.

There is no established jurisprudence regarding the role that public criticism of offenders should have in sentencing decisions.  Some courts take the view that it should increase the penalty imposed on high profile offenders in order to deter others from committing similar offences.  By contrast, it has also been held that public condemnation should reduce penalties because the offender has already suffered as a result of the public condemnation.  On other occasions, courts have held public condemnation is irrelevant to sentencing.  The issue is increasingly important because the internet and social media have massively increased the amount of publicity that many criminal offenders receive. Simultaneously, this is an under-researched area of the law.

In this Article, we develop a coherent jurisprudential and evidence-based solution to the manner in which public opprobrium should be dealt with in sentencing decisions.  We argue that sentencing courts should neither increase nor decrease penalties in circumstances where cases have attracted wide-ranging media attention.  The hardship stemming from public condemnation is impossible to quantify and in fact causes no tangible suffering to some offenders.  Thus, the extent of publicity that an offender receives for committing a crime should be an irrelevant consideration with respect to the choice of punishment. In proposing this reform, we carefully analyze the jurisprudence in the United States.  We also consider the position in Australia, where the issue has been considered at some length.

May 5, 2018 in Celebrity sentencings, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing | Permalink | Comments (9)

Tuesday, May 01, 2018

Feds forego capital prosecution for airport mass murderer, allowing guilty plea to LWOP

This new local article from Florida, headlined "Airport shooter Esteban Santiago to plead guilty, spend life in prison," highlights how (jury) sentencing discretion and other procedural rights in capital cases can impact how prosecutors approach charging and bargaining even in horrible murder cases.  Here are the details (with my emphasis added), with a bit of commentary to follow:

Esteban Santiago, the man who confessed to fatally shooting five people and wounding six at Fort Lauderdale’s international airport, has agreed to plead guilty and spend the rest of his life in federal prison.

Prosecutors have accepted his offer and are not seeking the death penalty but the judge first wants Santiago to undergo a mental health evaluation to make sure he’s legally competent to plead guilty.

The decision takes a very expensive and potentially long and emotional trial — followed by years of appeals — off the table.  Santiago’s documented history of severe mental illness, the fact that he went to the FBI and asked for help two months before committing the mass shooting, his willingness to plead guilty and his military service in the Iraq War were likely among the top factors that affected the decision, experts said.

Santiago, 28, had pleaded not guilty to a 22-count indictment in the Jan. 6, 2017 mass shooting at Fort Lauderdale-Hollywood International Airport.  Ten of those charges carried a potential death sentence or life in federal prison. His change-of-plea hearing is expected to be scheduled in the next several weeks in federal court in Miami.

Both sides are due back in court May 23 for a competency hearing with U.S. District Beth Bloom. If the judge is satisfied that Santiago is mentally competent, she would then allow him to plead guilty....

He was briefly hospitalized for psychiatric care in Alaska in November 2016, two months before the shooting. He had driven to the FBI office in Anchorage, asked for help and told agents he was hearing voices and thought the government was controlling his mind.

After Santiago surrendered at the airport, FBI agents said he confessed and told them he was “programmed” to act under government mind control. Later in the interview, he said he was inspired by the Islamic State extremist group, but authorities said no terrorism links have been found.

Though the line highlighted above tells a big part of the story, I still find myself left wondering about what factors played a central role in the sentencing decision-making of federal prosecutors here. I wonder if many or even most of the victims/family members supported this decision to forego a capital prosecution (and also wonder if they at all troubled that this critical decision lingered for 16 months from the time of this awful crime). I also wonder if prosecutors, perhaps concerned about a possible insanity defense and criticisms of mental health care given to veterans, we not even confident about getting a guilty verdict, let alone a death sentence, were this case to go to trial.

Whatever the reasons for the feds decision-making here (which will remain hidden and are essentially unreviewable), this case helps reveal the range of forces that necessarily place brakes on any efforts by the Trump Administration and Attorney General Sessions to make significantly more use of the death penalty.  A mass shooting in an airport of nearly a dozen people with five deaths would seem to be a textbook example of a "worst-of-the-worst" offense.  But because the defendant can make the case that he is not a worst-of-the-worst offender, federal prosecutors (in a pro-death penalty state) are not even willing to try to secure a death sentence.  

May 1, 2018 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences | Permalink | Comments (9)

Wednesday, April 25, 2018

New Jersey Supreme Court finds unconstitutional requiring juveniles to be subject to lifetime sex-offender registration

The Supreme Court of New Jersey yesterday handed down a lengthy unanimous opinion in Interest of C.K., No. A-15-16 (N.J. April 24, 2018) (available here) declaring that the state's sex-offender registry law is unconstitutional as applied to some juvenile offenders. Here is how the opinion begins:

Juveniles adjudicated delinquent of certain sex offenses are barred for life from seeking relief from the registration and community notification provisions of Megan’s Law. N.J.S.A. 2C:7-1 to -11, -19; N.J.S.A. 2C:7-2(g).  That categorical lifetime bar cannot be lifted, even when the juvenile becomes an adult and poses no public safety risk, is fully rehabilitated, and is a fully productive member of society.  Defendant C.K. was adjudicated delinquent for sex offenses committed more than two decades ago and now challenges the constitutionality of N.J.S.A. 2C:7-2(g)’s permanent lifetime registration and notification requirements as applied to juveniles.

Subsection (f) of N.J.S.A. 2C:7-2 subjects all sex offenders, including juveniles, to presumptive lifetime registration and notification requirements.  Unlike subsection (g), however, subsection (f) allows a registrant to seek relief from those requirements fifteen years after his juvenile adjudication, provided he has been offense-free and is “not likely to pose a threat to the safety of others.”  Subsection (g) imposes an irrebuttable presumption that juveniles, such as defendant, are irredeemable, even when they no longer pose a public safety risk and are fully rehabilitated.

The record in this case reveals what is commonly known about juveniles -- that their emotional, mental, and judgmental capacities are still developing and that their immaturity makes them more susceptible to act impulsively and rashly without consideration of the long-term consequences of their conduct.  See State v. Zuber, 227 N.J. 422 (2017).  The record also supports the conclusion that juveniles adjudicated delinquent of committing sex offenses, such as C.K., who have been offense-free for many years and assessed not likely to reoffend, pose little risk to the public. Indeed, categorical lifetime notification and registration requirements may impede a juvenile’s rehabilitative efforts and stunt his ability to become a healthy and integrated adult member of society.

We conclude that subsection (g)’s lifetime registration and notification requirements as applied to juveniles violate the substantive due process guarantee of Article I, Paragraph 1 of the New Jersey Constitution. Permanently barring juveniles who have committed certain sex offenses from petitioning for relief from the Megan’s Law requirements bears no rational relationship to a legitimate governmental objective.  In the absence of subsection (g), N.J.S.A. 2C:7-2(f) provides the original safeguard incorporated into Megan’s Law: no juvenile adjudicated delinquent will be released from his registration and notification requirements unless a Superior Court judge is persuaded that he has been offense-free and does not likely pose a societal risk after a fifteen-year look-back period.

Defendant may apply for termination from the Megan’s Law requirements fifteen years from the date of his juvenile adjudication, and be relieved of those requirements provided he meets the standards set forth in N.J.S.A. 2C:7-2(f).

April 25, 2018 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Sex Offender Sentencing | Permalink | Comments (2)

Friday, April 20, 2018

Effective (and depressing) report on compassionate release (or lack thereof) in Wisconsin and nationwide

Gina Barton of the Milwaukee Journal Sentinel has this terrific (and lengthy) piece on compassionate release programs titled "Release programs for sick and elderly prisoners could save millions.  But states rarely use them."  I recommend the full piece, and here is how it gets started:

A Wisconsin program that allows elderly and severely ill prisoners to be released early from prison could save state taxpayers millions of dollars a year.  But thousands of the state’s elderly prisoners — many of whom prison officials acknowledge pose little or no risk of committing new crimes — aren’t allowed to apply, a Milwaukee Journal Sentinel investigation found.

More than 1,200 people age 60 and older were serving time in Wisconsin prisons as of Dec. 31, 2016, the most recent count available.  By one estimate, the average cost to incarcerate each of them is $70,000 a year — for an annual total of $84 million.  Last year, just six inmates were freed under the program.  Among those who didn’t qualify were a blind quadriplegic and a 65-year-old breast cancer survivor who uses a breathing machine and needs a wheelchair to make it from her cell to the prison visiting room.

Around the country, early release provisions for elderly and infirm prisoners are billed as a way to address problems such as prison overcrowding, skyrocketing budgets and civil rights lawsuits alleging inadequate medical care. But throughout the U.S., they are used so infrequently that they aren’t having much impact.

Of the 47 states with processes to free such prisoners early or court rulings requiring them to do so, just three — Utah, Texas and Louisiana — released more than a dozen people in 2015, according to a Journal Sentinel survey.  The reasons for the low numbers, according to experts, are usually found in the statutes that created the programs, known as compassionate release, geriatric release and medical parole, among other things.

Some laws, like Wisconsin’s, exclude inmates based on the type of sentence or the crime committed. Some allow release only for people who are terminal — a definition that varies by medical provider and doesn’t apply to chronic conditions or disabilities.  Some lack an efficient process for application and approval, leaving sick prisoners to die before they can complete it.  It’s also hard to find care facilities willing to accept former prisoners.

Because many of these laws were written without input from doctors who specialize in aging and end-of-life care, they exclude the people who would benefit most, according to Brie Williams, a physician and professor of medicine at the University of California-San Francisco.  “We’ve taken health out of criminal justice policy to such a degree that the policies that have been developed do not have the geriatric and palliative care knowledge they need to make sense,” she said.

While these programs are presented as money savers, in 2015 a majority of states granted release to fewer than four applicants each.  Within states that have a compassionate release program and track the numbers, there were 3,030 people who applied, with only 216 being granted release.

April 20, 2018 in Offender Characteristics, Prisons and prisoners, Procedure and Proof at Sentencing | Permalink | Comments (0)