Thursday, April 27, 2017

"Criminal Law as Family Law"

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

The criminal justice system has expanded dramatically over the last several decades, extending its reach into family life.  This expansion has disproportionately and negatively impacted Black communities and social networks, including Black families.  Despite these pervasive shifts, legal scholars have virtually ignored the intersection of criminal, family, and racial justice.

This Article explores the gap in literature in two respects.  First, the Article weaves together criminal law, family law, and racial justice by cataloging ways in which the modern criminal justice state regulates family life, particularly for Black families.  Second, the Article examines the depth of criminal justice interference in family life and autonomy through analysis of the impact of community supervision on families.  These explorations reveal that community supervision, and criminal justice more broadly, operate as a de facto family law regime, negatively restructuring Black family autonomy, stability and loyalty, all of which family law seeks to promote.  The Article recommends that the practice of community supervision return to its roots in human services and calls on legal scholars to focus critical attention on criminal law’s creation of disparate and unequal family law systems.

April 27, 2017 in Collateral consequences, Offender Characteristics, Race, Class, and Gender | Permalink | Comments (3)

Wednesday, April 12, 2017

Might Dylann Roof have claimed ineffective assistance of counsel if he didn't get sentenced to death?

Most murderers who get sentenced to death at some point claim their lawyers were constitutionally ineffective. But this new local article, headlined "Dylann Roof calls his lawyers 'sneakiest people I ever met,' says mental health defense was 'a lie'," suggests one high-profile condemned mass murderer might have claimed his lawyer was ineffective if he wasn't sentenced to death. The full article is fascinating, and here is how it gets started:

Calling his attorneys "the sneakiest group of people I have ever met,” Dylann Roof reached out to federal prosecutors on the eve of his hate crimes trial in an effort to scuttle a planned mental health defense aimed at sparing him the death penalty.

Roof blistered his legal team in a three-page jailhouse letter, accusing them of tricking him into undergoing tests to challenge his competency to stand trial for killing nine black worshippers at Charleston's Emanuel AME Church in June 2015. Roof told prosecutors he wanted no part of this strategy, which he labeled "a lie."

"Because I have no real defense, my lawyers have been forced to grasp at straws and present a pathetic, fraudulent excuse for a defense in my name," he wrote in early November. "They have regularly told me in an aggressive manner that I have no say in my own defense, that my input doesn't matter, and that there is nothing I can do about it."

Roof's letter was among more than 70 filings that U.S. District Court Judge Richard Gergel unsealed Tuesday – one day after the 23-year-old white supremacist pleaded guilty to nine counts of murder in state court. Though Roof’s federal trial ended in January with a death sentence, Gergel had been reluctant to release records about his mental status while the state case was pending.

The newly unsealed documents show procedural disagreements over how Roof’s mental health would be evaluated and growing discord between the killer and his top-flight legal team of capital defense specialists. Roof railed at their “slick” tactics, and they in turn expressed frustration with a “delusional” client who seemed preoccupied with fantasies that white supremacists would break him out of prison and make him governor of South Carolina, the documents show.

In the handwritten November letter to “Prosecution,” Roof alleged that his legal team had told him he was being tested to determine if a thyroid condition had affected his brain when they were really compiling evidence to challenge his competency. He said he wanted the people trying to convict him to know that “what my lawyers plan to say in my defense is a lie and will be said without my consent or permission.”

“My lawyers have purposely kept me in the dark about my defense until the last minute in order to prevent me from being able to do anything about it, which is why I have been forced to write to you,” he stated. “Throughout my case they have used scare tactics, threats, manipulation, and outright lies to further their own, not my, agenda.” He warned prosecutors not to let his legal team “fool you or the court like they’ve fooled me.”

Prosecutors notified Roof's lawyers after receiving the letter, and lead defense attorney David Bruck agreed that Gergel, the trial judge, needed to see the missive, according to a chain of emails. After a closed-door meeting on Nov. 7, Roof's lawyers pleaded with the judge to delay planned jury selection in the case so Roof could undergo an extensive mental competency review. They repeatedly described Roof as delusional, and noted his "depression, extreme anxiety and autism spectrum disorder."

They stated that their tenuous working relationship with him had suffered "a severe rupture" when he "openly attempted to sabotage his own case" by reaching out to prosecutors. "(W)e are now faced with a client who would rather die than be labeled mentally ill or neuro-developmentally impaired, and who would rather communicate and ally himself with those who propose to execute him than us," his attorneys wrote.

The attorneys stated that Roof believed "the very white nationalists whom he considers his allies" would turn on him and persecute him for his "perceived infirmities" if he were to be labeled incompetent. They stated that Roof had "an irrational belief that being labeled mentally impaired will affect the defendant's standing with some hypothetical white nationalists whom the defendant has never met or communicated with — and cannot even name — but whom he believes may appoint him to a high government position some day."

They attached notes indicating that Roof had been so distracted by his delusional ideas that he was unable to respond to the basic needs of his defense. Among his odd notions was a fantasy that white supremacists would stage a prison break to rescue him from captivity, they said. "His single-minded focus on being rescued and made governor of South Carolina makes salient to him things that are irrational and he cannot rationally assist counsel as a result," they stated.

April 12, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (11)

Tuesday, April 11, 2017

AG Sesssions issues memo to federal prosecutors that "mandates the prioritization of criminal immigration enforcement"

As reported in this press release from the US Justice Department, "Attorney General Jeff Sessions today spoke to Customs and Border Protection personnel at the United States-Mexico border in Nogales, Arizona," and in his remarks the AG "announced that he has issued [this] attached memo to United States Attorneys that mandates the prioritization of criminal immigration enforcement."  Here is more from the press release and the speech it references:

The memo directs federal prosecutors to focus on particular offenses that, if aggressively charged and prosecuted, can help prevent and deter illegal immigration.  Additionally, the Attorney General revealed that the Department of Justice will add 50 more immigration judges to the bench this year and 75 next year. He also highlighted the Department's plan to streamline its hiring of judges, reflecting the dire need to reduce the backlogs in our immigration courts....

[From the AG's speech:]

[T]oday, I am pleased to stand here with you and announce new guidance regarding our commitment to criminal immigration enforcement.  As we speak, I am issuing a document to all federal prosecutors that mandates the prioritization of such enforcement.

Starting today, federal prosecutors are now required to consider for prosecution all of the following offenses:

  • The transportation or harboring of aliens. As you know too well, this is a booming business down here.  No more.  We are going to shut down and jail those who have been profiting off this lawlessness — people smuggling gang members across the border, helping convicted criminals re-enter this country and preying on those who don’t know how dangerous the journey can be.

  • Further, where an alien has unlawfully entered the country, which is a misdemeanor, that alien will now be charged with a felony if they unlawfully enter or attempt enter a second time and certain aggravating circumstances are present.

  • Also, aliens that illegally re-enter the country after prior removal will be referred for felony prosecution — and a priority will be given to such offenses, especially where indicators of gang affiliation, a risk to public safety or criminal history are present.

  • Fourth: where possible, prosecutors are directed to charge criminal aliens with document fraud and aggravated identity theft — the latter carrying a two-year mandatory minimum sentence.

  • Finally, and perhaps most importantly: I have directed that all 94 U.S. Attorneys Offices make the prosecution of assault on a federal law enforcement officer — that’s all of you — a top priority. If someone dares to assault one of our folks in the line of duty, they will do federal time for it.

To ensure that these priorities are implemented, starting today, each U.S. Attorney’s Office, whether on the border or interior, will designate an Assistant United States Attorney as the Border Security Coordinator for their District.  It will be this experienced prosecutor’s job to coordinate the criminal immigration enforcement response for their respective offices.

For those that continue to seek improper and illegal entry into this country, be forewarned: This is a new era.  This is the Trump era.  The lawlessness, the abdication of the duty to enforce our immigration laws and the catch and release practices of old are over.

April 11, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Sunday, April 09, 2017

"Mass incarceration, public health, and widening inequality in the USA"

The title of this post is the title of this new Lancet article authored by Christopher Wildeman and Emily Wang.  Here is the summary:

In this Series paper, we examine how mass incarceration shapes inequality in health.  The USA is the world leader in incarceration, which disproportionately affects black populations.  Nearly one in three black men will ever be imprisoned, and nearly half of black women currently have a family member or extended family member who is in prison. However, until recently the public health implications of mass incarceration were unclear.  Most research in this area has focused on the health of current and former inmates, with findings suggesting that incarceration could produce some short-term improvements in physical health during imprisonment but has profoundly harmful effects on physical and mental health after release. The emerging literature on the family and community effects of mass incarceration points to negative health impacts on the female partners and children of incarcerated men, and raises concerns that excessive incarceration could harm entire communities and thus might partly underlie health disparities both in the USA and between the USA and other developed countries.  Research into interventions, policies, and practices that could mitigate the harms of incarceration and the post-incarceration period is urgently needed, particularly studies using rigorous experimental or quasi-experimental designs.

The Lancet piece is behind a pay-wall; this Atlantic article provides a helpful account of its themes. Here is an excerpt from the Atlantic coverage:

For children and communities, the impacts of a parent’s incarceration are unequivocally bad, write study authors Christopher Wildeman of Cornell University and Emily Wang of Yale. Kids whose fathers go to jail are at increased risk of depression, anxiety, learning disabilities, and obesity, and they are more likely to do drugs later in life. Because criminal records dampen job opportunities, according to some studies people who live in neighborhoods with high levels of incarceration are more likely to experience asthma from dilapidated housing. These consequences are especially severe for children of color: Because black men are jailed disproportionately, a black child born in 1990 had a one-in-four chance of having their father imprisoned, Wildeman and Wong write.

When imprisoned fathers return home, “they have trouble finding employment,” says Kristin Turney, a sociologist at the University of California, Irvine, who has studied the health of inmates’ children but was not involved with the study.  Part of the explanation is reduced income, she said, and “part of it is the relationship between the parents. Maintaining romantic partnerships while incarcerated is tricky, so it can lead to more [familial] conflict.”

But, paradoxically, going to prison can actually improve health — at least temporarily — for some inmates. Black male inmates, the authors write, have a lower mortality rate than similarly aged black men who aren’t in jail.  The reason?  The risk of death from violent accidents, overdoses on drugs or alcohol, and homicides is much lower in prison than it is in the neighborhoods where these men would be living otherwise.  What’s more, before the Affordable Care Act was passed, many states made it all but impossible for low-income, childless men to obtain health care.  Under the ACA, 32 states expanded Medicaid to cover all poor adults, but 19 have not.  Because of that, Wildeman and Wang write, prison is the first time many incarcerated young men receive regular health care.

The drop in mortality “is just an indicator of how dangerous the environment for African-Americans is on the outside, rather than being a function of how good the medical care is that they’re receiving” in prison, Wildeman told me.  (This health boost excludes the effect of solitary confinement, which has well-known, horrific consequences for mental health.)

April 9, 2017 in Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (5)

Wednesday, April 05, 2017

"Criminological Perspective on Juvenile Sex Offender Policy"

The title of this post is the title of this short new article authored by Franklin Zimring available via SSRN. Here is the abstract:

Persons under 18 are in the very early years of sexual maturity and lack both experience and perspective.  When juveniles commit sexual offenses, the behavior is typically not violent and most often involves conduct only referred to authorities because of an age difference between the offender and the victim.  Rates of future sexual offending in later years are quite low for most juvenile sex offenders and on current data the presence or absence of a juvenile sex offense is not a significant predictor of sexual offending in young adulthood.  Under these circumstances, requiring registration and public notification of juvenile sex offenders is very poor crime control policy as well as gross injustice to the juvenile offender.

April 5, 2017 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (3)

Tuesday, April 04, 2017

"Criminal Employment Law"

The title of this post is the title of this new article authored by Benjamin Levin available via SSRN. Here is the abstract:

This Article diagnoses a phenomenon, “criminal employment law,” which exists at the nexus of employment law and the criminal justice system. Courts and legislatures discourage employers from hiring workers with criminal records and encourage employers to discipline workers for non-work-related criminal misconduct. In analyzing this phenomenon, my goals are threefold: (1) to examine how criminal employment law works; (2) to hypothesize why criminal employment law has proliferated; and (3) to assess what is wrong with criminal employment law.

This Article examines the ways in which the laws that govern the workplace create incentives for employers not to hire individuals with criminal records and to discharge employees based on non-workplace criminal misconduct. In this way, private employers effectively operate as a branch of the criminal justice system.  But private employers act without constitutional or significant structural checks.  Therefore, I argue that the criminal justice system has altered the nature of employment, while employment law doctrines have altered the nature of criminal punishment.  Employment law scholars should be concerned about the role of criminal records in restricting entry into the formal labor market.  And criminal law scholars should be concerned about how employment restrictions extend criminal punishment, shifting punitive authority and decision-making power to unaccountable private employers.

April 4, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Purposes of Punishment and Sentencing, Reentry and community supervision | Permalink | Comments (5)

Monday, April 03, 2017

"Race, Plea, and Charge Reduction: An Assessment of Racial Disparities in the Plea Process"

The title of this post is the title of this notable article just published in Justice Quarterly authored by Christi Metcalfe and Ted Chiricos.  Here is its abstract:

With the growing recognition of the salience of prosecutorial discretion, attention to biases in the earlier phases of case processing is increasing.  Still, few studies have considered the influence of defendant race and race/sex within the plea process.  The present study uses a sample of felony cases to assess the influence of race and race/sex on the mode of disposition, similarities and differences in the factors that predict the likelihood of a plea across race, and potential racial disparities in the plea value received pertaining to a charge reduction.

The findings suggest that blacks, and black males in particular, are less likely to plea, and are expected to receive a lower value for their plea.  Also, the factors that predict the likelihood of a plea are substantively different across race. Conditioning effects of race and sex are found in the likelihood of a plea and probabilities of a charge reduction.

April 3, 2017 in Data on sentencing, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (0)

Sunday, April 02, 2017

"Briefing the Supreme Court: Promoting Science or Myth?"

The title of this post is the title of this new timely essay authored by Melissa Hamilton now available via SSRN. Here is the abstract:

The United States Supreme Court is considering Packingham v. North Carolina, a case testing the constitutionality of a ban on the use of social networking sites by registered sex offenders.  An issue that has arisen in the case is the state’s justification for the ban.  North Carolina and thirteen other states represented in a friend of the court brief make three claims concerning the risk of registered sex offenders: (1) sex offenders have a notoriously high rate of sexual recidivism; (2) sex offenders are typically crossover offenders in having both adult and child victims; and (3) sexual predators commonly use social networking sites to lure children for sexual exploitation purposes.  The collective states contend that these three claims are supported by scientific evidence and common sense.  This Essay explores the reliability of the scientific studies cited in the briefings considering the heteregenous group of registered sex offenders to whom the social networking ban is targeted.

April 2, 2017 in Collateral consequences, Criminal Sentences Alternatives, Offender Characteristics, Science, Sentences Reconsidered, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (2)

Tuesday, March 28, 2017

Ruling 5-3, SCOTUS rejects Texas effort to limit definition of intellectual disability for death penalty application

The Supreme Court this morning handed down an opinion in Moore v. Texas, No. 15-797 (S. Ct. March 28, 2017) (available here), in favor of a capital defendant.  Because I am on the road, I will not be able to provide context for this ruling until later today.  Short story seems to be that the more liberal Justices were not impressed by the more conservative standard Texas courts have used to apply the Atkins and Hall precedents concerning Eighth Amendment limits on executing the intellectually disabled.

UPDATE:  Now with a few minutes at a desktop, I can quote Justice Ginsburg's opinion for the Court:

Bobby James Moore fatally shot a store clerk during a botched robbery.  He was convicted of capital murder and sentenced to death. Moore challenged his death sentence on the ground that he was intellectually disabled and therefore exempt from execution.  A state habeas court made detailed factfindings and determined that, under this Court’s decisions in Atkins v. Virginia, 536 U.S. 304 (2002), and Hall v. Florida, 572 U.S. ___ (2014), Moore qualified as intellectually disabled. For that reason, the court concluded, Moore’s death sentence violated the Eighth Amendment’s proscription of “cruel and unusual punishments.”  The habeas court therefore recommended that Moore be granted relief.

The Texas Court of Criminal Appeals (CCA) declined to adopt the judgment recommended by the state habeas court. In the CCA’s view, the habeas court erroneously employed intellectual-disability guides currently used in the medical community rather than the 1992 guides adopted by the CCA in Ex parte Briseno, 135 S.W.3d 1 (2004).  See Ex parte Moore, 470 S.W.3d 481, 486–487 (2015).  The appeals court further determined that the evidentiary factors announced in Briseno “weigh[ed] heavily” against upsetting Moore’s death sentence. 470 S.W.3d at 526.

We vacate the CCA’s judgment.  As we instructed in Hall, adjudications of intellectual disability should be “informed by the views of medical experts.” 572 U.S., at ___ (slip op., at 19); see id., at ___ (slip op., at 7).  That instruction cannot sensibly be read to give courts leave to diminish the force of the medical community’s consensus.  Moreover, the several factors Briseno set out as indicators of intellectual disability are an invention of the CCA untied to any acknowledged source.  Not aligned with the medical community’s information, and drawing no strength from our precedent, the Briseno factors “creat[e] an unacceptable risk that persons with intellectual disability will be executed,” 572 U.S., at ___ (slip op., at 1).  Accordingly, they may not be used, as the CCA used them, to restrict qualification of an individual as intellectually disabled.

March 28, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (8)

Saturday, March 25, 2017

"End the death penalty for mentally ill criminals"

The title of this post is the title of this new Washington Post commentary that strikes me as notable because it is penned by two former midwestern governors, Bob Taft (who was governor of Ohio from 1999 to 2007) and Joseph Kernan (who was governor of Indiana from 2003 to 2005). Here are excerpts:

Legislators in six states — Indiana, Ohio, South Dakota, Tennessee, Texas and Virginia — have proposed legislation to prohibit the death penalty for individuals with severe mental illness. As former governors of states that are grappling with this issue, we strongly support this effort to end an inhumane practice that fails to respect common standards of decency and comport with recommendations of mental-health experts.

The overwhelming majority of people with severe mental illness are not violent; in fact, they are more likely to be victims than perpetrators of violent crime. For the very small number who do commit a capital crime while suffering from a severe mental disorder, current death-penalty law does not adequately take the effects of their illness into account.

As a result, defendants with severe mental illness — such as schizophrenia, bipolar disorder, post-traumatic stress disorder and traumatic brain injury — continue to be sentenced to death and executed. Last March, Texas executed Adam Ward, a man recognized as “diagnosed with bipolar disorder and placed on lithium as early as age four,” according to appellate court documents.  And in 2015, Georgia executed Andrew Brannan, a decorated Vietnam War veteran who also had a pronounced mental illness. He qualified for 100 percent disability from the Department of Veterans Affairs because of his PTSD and bipolar disorder.

Although their grave illnesses do not excuse these defendants’ crimes, we believe that life imprisonment without the possibility of parole would have been a more appropriate punishment. Illnesses such as schizophrenia and bipolar disorder are characterized by impairments that — when untreated — significantly affect one’s ability to distinguish fact from reality, to make rational decisions or to react appropriately to events and other people. Under these conditions, the degree of culpability may not rise to the level of cold, unimpaired calculus that justifies the ultimate penalty....

Studies have also shown that death- penalty jurors often misunderstand mental illness, which is often viewed as an aggravating factor — that is, a reason to sentence someone to death — rather than as a mitigating factor, which is what it should be. The troubling consequence is that some defendants may end up on death row because of their mental illness.

The fact that the death penalty applies to those with mental illness also means that veterans with demonstrated PTSD may be executed. Even though most of the thousands of veterans struggling with PTSD do not commit the serious crimes that may be eligible for the death penalty, an estimated 10 percent of the United States’ death-row inmates are veterans — some of whom suffered from active and severe symptoms of PTSD at the time of their crime. These veterans have experienced trauma that few others have faced and have made a vital contribution to the safety of our country that deserves our recognition....

The death penalty was not intended for people in the throes of severe delusions, living with schizophrenia or suffering from combat-related PTSD. These are not the blameworthy individuals whose executions can be justified. We come from different political parties, but we join the majority of Americans — supporters and opponents of the death penalty alike — who believe it should not be imposed on defendants with such serious impairments.  This is a fair, efficient and bipartisan reform that would put an end to a practice that is not consistent with current knowledge about mental illness and fundamental principles of human decency.

March 25, 2017 in Death Penalty Reforms, Offender Characteristics, Purposes of Punishment and Sentencing | Permalink | Comments (8)

Thursday, March 23, 2017

"How long should Louisiana keep old, ill criminals in prison?"

The title of this post is the headline of this lengthy NOLA.com article. Here are excerpts:

Emanuel Lee [is] doing life for strangling his girlfriend in New Orleans.... Lee arrived at Angola 26 years ago [and] unless something drastic changes, he will die at Angola, one of the hundreds of aging and ill inmates who are costing taxpayers hundreds of thousands of dollars every year to treat and incarcerate.

What to do with Lee and prisoners like him is likely to be a major topic of discussion in the Louisiana Legislature's 2017 session starting April 10. Gov. John Bel Edwards is expected to make a push to lower Louisiana's highest-in-the-world incarceration rate, in part by opening options for parole for non-violent offenders who serve shorter prison sentences. But the governor also has said he is interested in reducing the number of Louisiana inmates with longer sentences as well.

Many of Louisiana's older, long-term prisoners might no longer pose a threat to society, judging from national studies of recidivism. And for prisoners with serious illnesses, the costs of treatment can be daunting. Taxpayers are responsible for prison medical care, but some of that money could be used elsewhere, such as for higher education and mental health care for children, if ill prisoners were released.

The governor's task force on reducing the prison population recommended last week that Louisiana expand parole opportunities to prisoners with long sentences, including lifers. It suggested that lifers be eligible for parole after serving 30 years in prison and reaching age 50, unless they were convicted of first-degree murder. People serving long but less-than-life sentences should be eligible for parole after 20 years in prison and reaching age 45, even if they committed violent or sex crimes, according to the task force.

These provisions are often referred to as "geriatric parole." If put into place, geriatric parole would immediately make about 570 prisoners eligible for parole, and also would affect convicts who are sentenced in the future to life terms. Lee might come up for parole in four years, after serving 30 years of his sentence.

The task force has also suggested that Edwards and lawmakers make it easier for people with serious medical conditions, no matter their age, to get out of prison. They are proposing a medical furlough program to let any inmate who is not on death row be released temporarily from prison to a hospital or nursing home for medical treatment.

These recommendations aren't without controversy. The Louisiana District Attorneys Association has said geriatric parole and other proposals to let violent offenders out of prison are non-starters. The group's representative on the governor's task force, District Attorney Bo Duhe of the 16th Judicial District, voted against geriatric parole.

Duhe supported the medical furlough concept, but the District Attorneys Association said its members have concerns about that recommendation, too, and many want to alter it if it has a chance of becoming law. "Those issues have been suspect because of their potential for abuse," said Pete Adams, executive director of the association.

In a state where the law-and-order crowd insists "life means life," it's easy to see why some are nervous at the prospect of offering the possibility of freedom to a criminal who was banished for life, even if the criminal is sick, old or dying. Many of Louisiana's 4,850 lifers have committed very serious crimes....

Louisiana is an outlier in how it punishes crimes such as Lee's. Only Louisiana and one other state, Mississippi, mandate life without parole for second-degree murder; there is no option in the law. In Texas that crime is punished by five to 99 years in prison, with parole eligibility after 30 years. In Arkansas, it is a 10- to 40-year sentence, according to a report issued by the Louisiana governor's sentencing task force....

One of the arguments for giving older inmates a shot at parole, even those convicted of violent crime, centers on their unlikelihood of committing crimes again. Research suggests that most people "age out" of criminal activity after their 20s....

Even if parole becomes possible for people with life sentences, it's not automatic. That's a decision for the Pardons and Parole Board, which in 2015 granted only 2 percent of discretionary parole requests, according to the governor's task force report....

While some advocates for geriatric and medical parole make a moral argument to release old or ill prisoners, there is also a practical reason: It's expensive for the public. During the fiscal year that ended June 30, the Department of Corrections spent about $52.3 million on hospital and medical wards in its prisons, plus $22.7 million for health care at off-site locations, for a total of $75 million.

Older inmates require treatment for dementia, blindness, hypertension, hearing loss and vision problems at a higher rate than their younger counterparts. Older people who have been locked up for decades are more likely to need medical care than a person who is the same age but not in prison: They go to the doctor about five times more often, according to the Vera Institute of Justice.

March 23, 2017 in Offender Characteristics, Prisons and prisoners, Scope of Imprisonment | Permalink | Comments (10)

Wednesday, March 22, 2017

Tenth Circuit clarifies and emphasizes import and reach of Graham's limit on extreme juve sentences

Yesterday in Budder v. Addison, No. 16-6088 (10th Cir. March 21, 2017) (available here), a Tenth Circuit panel granted habeas relief to a juvenile non-homicide offender sentenced in Oklahoma to serve over 131 years in prison before being eligible for parole. The Budden opinion discusses the Supreme Court's Graham ruling at great length in the course of rejecting Oklahoma's effort to defend a sentence that was not technically "life without parole."  Here are some excerpts from the opinion:  

Despite Oklahoma’s arguments to the contrary, we cannot read the Court’s categorical rule as excluding juvenile offenders who will be imprisoned for life with no hope of release for nonhomicide crimes merely because the state does not label this punishment as “life without parole.”  The Constitution’s protections do not depend upon a legislature’s semantic classifications.  Limiting the Court’s holding by this linguistic distinction would allow states to subvert the requirements of the Constitution by merely sentencing their offenders to terms of 100 years instead of “life.” The Constitution’s protections are not so malleable.

More importantly, the Court did not just hold that it violated the Eighth Amendment to sentence a juvenile nonhomicide offender to life without parole; it held that, when a state imposes a sentence of life on a juvenile nonhomicide offender, it must provide that offender with a “meaningful opportunity to obtain release.”  Id. at 75; see also id. (“[The Eighth Amendment] does prohibit States from making the judgment at the outset that those offenders never will be fit to reenter society.”).  Further, the Court explained that its categorical holding was necessary because it would “give[] all juvenile nonhomicide offenders a chance to demonstrate maturity and reform.” Graham, 560 U.S. at 79 (emphasis added).  If the rule announced in Graham is to provide all juvenile offenders such an opportunity, it must be read to apply to all sentences that are of such length that they would remove any possibility of eventual release.  Thus, we conclude, the sentencing practice that was the Court’s focus in Graham was any sentence that denies a juvenile nonhomicide offender a realistic opportunity to obtain release in his or her lifetime, whether or not that sentence bears the specific label “life without parole.” ...

Again, we must emphasize that states may not circumvent the strictures of the Constitution merely by altering the way they structure their charges or sentences.  Just as they may not sentence juvenile nonhomicide offenders to 100 years instead of “life,” they may not take a single offense and slice it into multiple sub offenses in order to avoid Graham’s rule that juvenile offenders who do not commit homicide may not be sentenced to life without the possibility of parole.  When the Court compared the severity of the crime with the severity of the punishment, in light of the characteristics of the offender, it did not look to the state’s definitions or the exact charges brought.  It looked to whether the offender was a juvenile, whether the offender killed or intended to kill the victim, and whether the sentence would deny the offender any realistic opportunity to obtain release.  The Court specifically concluded that, not only was a categorical rule appropriate, it was “necessary,” id. at 75, because a case specific approach “would allow courts to account for factual differences between cases and to impose life without parole sentences for particularly heinous crimes,” id. at 77.  The Court found this approach to pose too great a risk that some juveniles would receive life without parole sentences “despite insufficient culpability.” Id. at 78 (quoting Roper, 543 U.S. at 572–73).  The Court was not convinced “that courts taking a case-by-case proportionality approach could with sufficient accuracy distinguish the few incorrigible juvenile offenders from the many that have the capacity for change.” Id. at 77.  Not only did the Court draw the line at homicide, it structured a categorical rule specifically to prevent the possibility that a sentencing judge would ever impose a sentence of life without the possibility of parole on a juvenile who did not commit homicide.  The Eight Amendment prohibits such a sentence, regardless of the severity of nonhomicide crimes a juvenile has committed.

March 22, 2017 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (3)

Monday, March 20, 2017

Over Posnerian dissent, Seventh Circuit panel upholds two-year prison term for elderly, ill fraudster

A Seventh Circuit panel recently issued an interesting set of opinions discussing federal prison care in the course of rejecting a sentencing appeal in US v. Rothbard,  No. 16-3996 (7th Cir. March 17, 2017) (available here). The start of the majority opinion by Chief Judge Wood provides the basics of the case and ruling:

Jeffrey Rothbard pleaded guilty to one count of wire fraud in connection with his participation in a scheme to defraud companies that were interested in obtaining loans for environmentally friendly upgrades to their facilities. He committed this offense, which yielded more than $200,000 for him, while he was on probation for a felony forgery conviction in Indiana.  The district court sentenced him to 24 months’ imprisonment, despite the fact that Rothbard is an older man with serious health problems and the Probation Office thought that incarceration was not necessary. On appeal, Rothbard urges us to find that his sentence is substantively unreasonable, both because he has stayed out of trouble for nearly three years and because he fears that the Bureau of Prisons (BOP) may be unable to furnish the medication on which his health critically depends.

Perhaps, had we been the sentencing judges, we would have accepted his arguments. But the district court here gave sound reasons for its chosen sentence. In addition, both the evidence in the record before the district court, and supplemental information that we requested about BOP’s ability to provide appropriate care, satisfy us that the nominal 24-month sentence will not, in reality, spell doom for Rothbard. We therefore affirm the district court’s judgment.

Judge Posner dissented from the majority ruling, citing an array of sources to support his contention and concern that BOP might not adequately attend to the defendant's medical needs.  His dissent concludes this way:

To conclude, my inclination would be to reverse the judgment of the district court with directions to impose the sentence recommended by the probation service. But I would be content to reverse and remand with instructions that the district judge appoint neutral expert witnesses drawn both from the medical profession and from academic analysis of prison practices and conditions, with particular emphasis on the federal prison system, and that the judge reconsider his sentence in light of evidence presented by these witnesses as well as any witnesses that the government or the defendant may care to call.

What is clear is that Jeffrey Rothbard is entitled to a more informed and compassionate judicial response to his physical and mental illnesses than he has received from the district court and this court.

March 20, 2017 in Booker in the Circuits, Offender Characteristics, Prisons and prisoners | Permalink | Comments (3)

Split Louisiana Supreme Court refuses to allow jury to hear about potentially applicable mandatory minimum sentence for habitual offender

I just learned today about an interesting set of opinions handed down last week by the Louisiana Supreme Court in Louisiana v. Guidry, No. 2016-KK-1412 (La. March 15, 2017) (available here).  This lengthy local article about the decision, headlined "Jurors shouldn't be told possible mandatory minimums for repeat offenders, La. Supreme Court rules," provides this basic summary of the ruling and its context:

Louisiana jurors should not be told of possible mandatory minimum sentences defendants might face under the state's habitual offender law, because the knowledge could distract from their duty to determine guilt or innocence in a case, the Louisiana Supreme Court said in a split decision issued late Wednesday (March 15).

In a 5-2 ruling, the high court said the issue of possible mandatory minimums for repeat defendants "is too far attenuated from the guilt phase of trial to be discussed before a jury," and for a trial judge to allow such disclosure constitutes error. Chief Justice Bernette J. Johnson and Justice John L. Weimer dissented.

The decision comes in response to the Orleans Parish case of Corei Guidry, an accused drug dealer whose trial before Criminal District Court Judge Byron C. Williams has been stayed over this issue since last July.  Guidry, 29, faces 10 to 50 years if found guilty of possession with the intent to distribute heroin. Should he be convicted of what would be his fourth felony offense, District Attorney Leon Cannizzaro's office would have the post-trial option to file a multiple-offender bill.  If Guidry's prior history of three or more felony convictions can be proven at a post-conviction hearing, the judge would be required under state law to impose a mandatory minimum sentence of 50 years to life.

Here is how the majority opinion in this case begins:

The issue presented in this case is whether the trial court may allow a criminal jury to be informed of the possible mandatory minimum sentence faced by the defendant if, after a conviction on the offense being tried, he were to be sentenced under the Habitual Offender Law. For the reasons set forth below, we find the district court erred in denying the State’s motion in limine, which sought to disallow the defendant from mentioning in argument the mandatory minimum sentence the defendant could be subject to under the Habitual Offender Law should the State seek to enhance his sentence under that law and should the court find the State has proved all of the elements to warrant enhancement of the sentence. We find the issue of the possible mandatory minimum sentences that may be imposed if the defendant is convicted and the State successfully pursues enhancement of the sentence under the Habitual Offender law is too attenuated from the guilt phase of trial to be discussed before a jury, because it shifts the focus of the jury from its duty to determine guilt or innocence to issues regarding sentencing, possibly causing confusion of the issues and inviting the jury to speculate as to why a defendant may be facing such a term of imprisonment. Accordingly, we reverse the district court’s ruling.

And here is how the chief dissenting opinion starts:

I respectfully dissent and would deny the writ because the state has shown no abuse of discretion in the trial court’s denial of the state’s motion to prohibit the defense from referencing the possible life sentence that defendant will all but certainly face if convicted and adjudged a habitual offender. It has long been settled that it is within the trial judge’s discretion, in instances in which a specific punishment is not statutorily mandated, to permit or deny instruction or argument as to sentencing. The majority has accepted the invitation of the Orleans Parish District Attorney’s Office to establish a new per se rule which will substantially limit trial court discretion to control the information given to the jury. Under this new rule, any reference — whether by the court or in argument from the parties — to the enhanced sentence a defendant will face if he is convicted and adjudged a habitual offender, will be impermissible, unless perhaps the defendant elects to testify and subject himself to cross-examination about his prior convictions.

The trial court has the discretion to permit or prohibit references to sentencing, other than for those sentences automatically mandated by statute, because the trial judge sits in the best position to determine whether the penalty provisions at issue, including those applicable under the Habitual Offender Law, constitute “law applicable to the case,” of which the jury should be apprised under the circumstances of the particular prosecution.

I am unpersuaded that the trial court abused its discretion here by refusing to prohibit the defense from referencing the potential habitual offender sentence, especially in light of the overwhelming evidence that the Orleans Parish District Attorney’s Office almost reflexively (through his assistant district attorneys) institutes habitual offender proceedings upon securing the conviction at trial of a defendant with a prior felony. The prosecuting attorneys in Orleans Parish routinely wield the Habitual Offender Law, both during pre-trial plea negotiations and, in the event that tactic fails to yield a guilty plea, after obtaining a conviction at trial, to secure the harsher punishment of even non-violent offenders.

As the start of the dissenting opinion hints, there is a significant back-story to both the substantive and procedural issues surrounding this Louisiana case and the application of the state's Habitual Offender law.  Because various opinions in Guidry engage in that back-story in various ways, the full opinion is definitely worth a full read.

March 20, 2017 in Mandatory minimum sentencing statutes, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (0)

Sunday, March 19, 2017

"Taking Medical Judgment Seriously: Professional Consensus As a Trojan Horse for Constitutional Evolution"

The title of this post is the title of this notable new paper authored by Charlie Eastaugh and available via SSRN. Here is the abstract:

In the 2015 case of Hall v. Florida, the Supreme Court of the United States (SCOTUS) undertook a revolutionary approach to its ‘evolving standards’ jurisprudence in punishments clause adjudication.  Hall demonstrated for the first time an earnest embrace of ‘professional consensus’ as an indicia of evolving standards — decided by the liberal-leaning wing of the Court, with Justice Kennedy as the swing.

Through an analysis of Atkins v. Virginia, a case which finally protected intellectually disabled offenders from execution in 2002, this article introduces the professionally-accepted psychiatric definitions of intellectual disability (ID) and challenges the assumptions — still visible across the nation — that intelligence is as straightforward as numerical fact.  It will be shown that an accurate assessment of ID for Atkins claims has so far not been forthcoming in many cases, with Hall as a prime example.

In Moore v. Texas — for which an eight-Justice Court heard oral argument in November 2016 — SCOTUS is faced with the chance to provide further, essential clarity to this debate. The immediate ramifications of Moore are likely to see this inmate spared from execution.  This paper develops the claim that the case could mean far more: The Court’s novel acceptance of professional standards in Hall has created a precedential Trojan Horse — one loaded with medical professionals and armed with epistemic knowledge, and one which provides the strongest opportunity for further Eighth Amendment evolution.  Should the Court follow the Hall trajectory in Moore, such an attack is primed for undermining another fundamental portion of capital punishment deemed abhorrent by medical professionals and civil liberties organisations across the nation: long — often decade-long — stays on death row, invariably in extreme solitary confinement.

March 19, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (19)

Friday, March 17, 2017

"Good, Bad and Wrongful Juvenile Sex: Rethinking the Use of Statutory Rape Laws Against the Protected Class"

The title of this post is the title of this new article authored by Anna High that a helpful reader flagged for me. Here is the abstract:

This article considers the question of whether statutory rape laws can and should be used against members of the class they were designed to protect.  Many commentators have argued that meaningfully consensual sex among similarly situated and sufficiently mature teenagers should be beyond the scope of strict liability rape laws, but the question becomes more fraught in the context of the “contested outer limits” of adolescent sexuality — sexual contact among children and adolescents that offends social norms, leads to harmful outcomes or appears to be exploitative.  What are the implications of using statutory rape laws against minors to target “bad sex”?

I contend that even in relation to “bad sex,” there are serious policy and constitutional objections to the use of statutory rape laws against a member of the class they are designed to protect.  In jurisdictions without all-encompassing age-gap provisions, the response to sex among adolescents needs to be reformulated to ensure that the use of statutory rape laws against minors is confined to cases involving wrongful, as opposed to mere bad, sex, and is predicated on a clear and objective definition of exploitation, as opposed to mere fornication, as the punitive target.

March 17, 2017 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (13)

Eleventh Circuit panel declares Alabama murderer incompetent to be executed

A panel of the Eleventh Circuit on Wednesday reached the rare conclusion that an Alabama death row prisoner was not competent to be executed.  The majority opinion authored by Judge Martin in Madison v. Commissioner, No. 16-12279 (11th Cir. March 15, 2017) (available here), gets started this way:  

Thirty years ago, the Supreme Court held that the Eighth Amendment prohibits the execution of a person who is incompetent.  Ford v. Wainwright, 477 U.S. 399, 409–10, 106 S. Ct. 2595, 2602 (1986).  The Court has since clarified that a person cannot be executed if he lacks a “rational understanding” of the reason for his execution. Panetti v. Quarterman, 551 U.S. 930, 954–60, 127 S. Ct. 2842, 2859–62 (2007).  This standard requires the prisoner to be able to rationally understand the connection between the crime he committed and the punishment he is to receive.  See Ferguson v. Sec’y, Florida Dep’t of Corr., 716 F.3d 1315, 1336 (11th Cir. 2013).  The Supreme Court told us that if the prisoner does not understand this connection, “the punishment can serve no proper purpose” and cannot be carried out. Panetti, 551 U.S. at 960, 127 S. Ct. at 2862.

This habeas petitioner, Vernon Madison, is a 66-year-old man on death row for the murder of a police officer over three decades ago.  In recent years, Mr. Madison has suffered strokes resulting in significant cognitive and physical decline.  His lawyers argue here that he is mentally incompetent to be executed under Ford and Panetti.  Finding that Mr. Madison had made a substantial threshold showing of incompetency, an Alabama trial court held a competency hearing.  At the hearing, Mr. Madison presented unrebutted testimony from Dr. John Goff that his strokes caused major vascular disorder (also known as vascular dementia) and related memory impairments and that, as a result, he has no memory of committing the murder — the very act that is the reason for his execution.  To the contrary, Mr. Madison does not believe he ever killed anyone. Dr. Goff testified that due to his memory impairments, Mr. Madison does not have a rational understanding of why the state is seeking to execute him.  The State presented expert testimony from Dr. Karl Kirkland. Dr. Kirkland testified that Mr. Madison was able to accurately discuss his legal appeals and legal theories with his attorneys and — on pretty much this basis alone — concluded that Mr. Madison has “a rational understanding of [his] sentence.”  Accepting the testimony of Dr. Kirkland, the Alabama trial court decided that Mr. Madison is competent to be executed.  Mr. Madison argues that the trial court’s decision relied on an unreasonable determination of the facts and involved an unreasonable application of the law. We agree.

In so holding, we are mindful of the great deference due to state court decisions on federal habeas review, particularly when the state court is applying a general standard like the one in Panetti.  See Harrington v. Richter, 562 U.S. 86, 101, 131 S. Ct. 770, 786 (2011) (“The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.” (quotation omitted)).  But “even a general standard may be applied in an unreasonable manner.” Panetti, 551 U.S. at 953, 127 S. Ct. at 2858. Panetti may set out a general standard for competency, but the focus of the inquiry is clear. Panetti doesn’t ask whether the prisoner can talk about the history of his case or legal theories with his attorneys.  Instead, Panetti requires courts to look at whether the prisoner is able to rationally understand the connection between the crime he committed and the punishment he is to receive. See Panetti, 551 U.S. at 960, 127 S. Ct. at 2862.  One of the experts testified that due to a mental disorder, Mr. Madison was not able to make this connection.  The other expert never addressed this question at all. This record is therefore wholly insufficient to support the trial court’s decision.  We conclude that the state court’s decision that Mr. Madison is competent to be executed rested on an unreasonable determination of the facts and involved an unreasonable application of Panetti. We therefore reverse the District Court’s denial of habeas relief.

A dissent authored by Judge Jordan gets started this way:

After reviewing the record, I believe that Vernon Madison is currently incompetent.  I therefore do not think that Alabama can, consistent with the Constitution, execute him at this time for his murder of a police officer three decades ago. See generally Panetti v. Quarterman, 551 U.S. 930, 958 (2007) (explaining that a state cannot put to death a prisoner who “cannot reach a rational understanding of the reason for the execution”). But Congress has chosen to generally prohibit federal courts from adjudicating constitutional claims anew on habeas review, so Mr. Madison’s competency (or lack thereof) is not our initial call to make. Under the restrictive standards we are required to apply, see 28 U.S.C. § 2254(d), and given the way we interpreted Panetti in Ferguson v. Secretary, 716 F.3d 1315 (11th Cir. 2013), I do not think Mr. Madison can obtain habeas relief.

March 17, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (12)

Thursday, March 16, 2017

New Sentencing Project report on "Immigration and Public Safety"

Via email, I got word that the Sentencing Project has released this new report discussing research about the impact of immigration on public safety. Here is the report's executive summary:

Foreign-born residents of the United States commit crime less often than native-born citizens.  Policies that further restrict immigration are therefore not effective crime-control strategies.  These facts — supported by over 100 years of research — have been misrepresented both historically and in recent political debates.

Starting from his first day as a candidate, President Donald Trump has made demonstrably false claims associating immigrants with criminality.  As president, he has sought to justify restrictive immigration policies, such as increasing detentions and deportations and building a southern border wall, as public safety measures.  He has also linked immigrants with crime through an Executive Order directing the Attorney General to establish a task force to assist in “developing strategies to reduce crime, including, in particular, illegal immigration, drug trafficking, and violent crime,” and by directing the Department of Homeland Security to create an office to assist and publicize victims of crimes committed by immigrants.

By surveying key research on immigration and crime, this report seeks to enable the public and policymakers to engage in a more meaningful policy debate rooted in facts. Immigrants’ impact on public safety is a well-examined field of study.

A rigorous body of research supports the following conclusions about the recent impact of immigrants in the United States:

1. Immigrants commit crimes at lower rates than native-born citizens.

2. Higher levels of immigration in recent decades may have contributed to the historic drop in crime rates.

3. Police chiefs believe that intensifying immigration law enforcement undermines public safety.

4. Immigrants are under-represented in U.S. prisons.

March 16, 2017 in National and State Crime Data, Offender Characteristics | Permalink | Comments (7)

Sunday, March 12, 2017

NY Times editorial makes pitch for raising the age

This New York Times editorial, headlined "Crime and the Adolescent Brain," makes the case for moving up the age for adult court treatment. Here are excerpts:

Over the last decade, seven states — Connecticut, Illinois, Louisiana, Massachusetts, Mississippi, New Hampshire and South Carolina — have passed laws that channel most young offenders into juvenile courts, where they can receive counseling and support, instead of into adult courts and adult prisons, which are not equipped to deal with adolescents.

This wise approach has bypassed New York, which is one of only two states — the other being North Carolina — that automatically try 16-year-olds as adults. While New York lawmakers fear that raising the age for adult courts would make them seem “soft on crime,” some state legislatures are now considering proposals to raise the age to 21.

Connecticut’s experience is instructive. In 2007, it raised the age of adult prosecution from 16 to 18 as part of a package of criminal justice reforms. It moved most nonviolent infractions — things like shoplifting, drug possession and disorderly conduct — out of the formal court system and invested in counseling and intervention programs that allowed teenagers to avoid criminal records.

A 2016 report by the Malcolm Wiener Center for Social Policy at the Harvard Kennedy School found that raising the age for adult prosecution produced sharp reductions in arrests, court caseloads and incarceration costs. Sixteen-year-olds who are tried as juveniles are less likely to be rearrested than those tried as adults. And arrests for people under 18 dropped by an astonishing 68 percent while the crime rate has continued to decline....

Encouraged by these results, Gov. Dannel Malloy of Connecticut has introduced a bill that would include 18- to 20-year-olds who commit all but the most serious crimes under a new category, “young adult” offenders.... Both Massachusetts and Illinois are also considering bills that would channel most 18-, 19- and 20-year-old offenders into the juvenile system.

Setting the age for adult criminal responsibility at 16, as New York does, is inhumane.  New York’s record on this is doubly shameful because state lawmakers in 1962 settled on 16 temporarily when they could not agree on a definition of adulthood.  The Legislature promised to revisit the issue, but inertia set in.  Generations of young offenders were damaged, some irreparably, by this decision.  Surely, it’s time to correct this mistake.

March 12, 2017 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)

Sunday, March 05, 2017

"Women in Prison: Should they be treated differently from men?"

The title of this post is the title of a lengthy new examination of the incarceration rates of women in recent years just published here by the CQ Researcher, which seeks to provide "in-depth reporting on issues in the news." The full report requires a subscription, but here is the preview via the CQ Researcher website:

The number of women in state and federal prisons has surged since 1978 by nearly 800 percent — twice the growth rate for men.  Mandatory sentences for drug offenses enacted during the 1980s and 1990s have hit women particularly hard, many experts say.  But some prosecutors and Republicans dispute the claim that the so-called war on drugs has disproportionately hurt women.  They say mandatory sentencing has reduced crime, helped break up drug rings and ended sentencing disparities.

Reformers hope states' recent efforts to reduce prison populations and spend more on drug treatment will help women. But they say women still remain an afterthought in the penal system.  For example, reformers say courts and prisons rarely recognize women's responsibility as mothers or the factors underlying their participation in crime, such as domestic abuse.  The justice system, women's advocates say, needs to think creatively about how to help female prisoners.  Meanwhile, in the juvenile system, girls often receive harsher punishments than boys who commit similar offenses.

March 5, 2017 in Mandatory minimum sentencing statutes, Offender Characteristics, Prisons and prisoners, Race, Class, and Gender, Scope of Imprisonment | Permalink | Comments (2)

Thursday, March 02, 2017

Washington Supreme Court rules Eighth Amendment precludes applying mandatory minimum adult sentencing scheme to juvenile offenders

The Supreme Court of Washington issued a very significant new ruling expanding the reach of the Eighth Amendment as adumbrated by the Supreme Court in Graham and Miller. The extended ruling in Washington v. Houston-Sconiers, No. 92605-1 (Wash. March 2, 2016) (available here), gets started this way:

"[C]hildren are different." Miller v. Alabama,_ U.S. _, 132 S. Ct. 2455, 2470, 183 L. Ed. 2d 407 (2012). That difference has constitutional ramifications: "An offender's age is relevant to the Eighth Amendment, and [so] criminal procedure laws that fail to take defendants' youthfulness into account at all would be flawed." Graham v. Florida, 560 U.S. 48, 76, 130 S. Ct. 2011, 176 L. Ed. 2d 825 (2010); U.S. CONST. amend. VIII.  The defendants in this case -- Zyion Houston-Sconiers and Treson Roberts -- are children. On Halloween night in 2012, they were 17 and 16 years old, respectively.  They robbed mainly other groups of children, and they netted mainly candy.

But they faced very adult consequences.  They were charged with crimes that brought them automatically into adult (rather than juvenile) court, without any opportunity for a judge to exercise discretion about the appropriateness of such transfers.  They had lengthy adult sentencing ranges calculated under adult Sentencing Reform Act of 1981 (SRA), chapter 9.94A RCW, rules.  And they received lengthy adult firearm sentence enhancements, with their mandatory, consecutive, flat-time consequences, without any opportunity for a judge to exercise discretion about the appropriateness of that sentence increase, either.

As a result, Houston-Sconiers faced a sentencing range of 501-543 months (41.75-45.25 years) in prison.  Clerk's Papers (Houston-Sconiers) (CPHS) at 227.  Of that, 3 72 months (31 years) was attributable to the firearm sentence enhancements and would be served as '"flat time,"' meaning "in total confinement" without possibility of early release. Id.; RCW 9.94A.533(3)(e).  Roberts faced a sentencing range of 441-483 months (36.75-40.25 years) in prison. Clerk's Papers (Roberts) (CPR) at 154.  Of that, 312 months (26 years) would be "'flat time"' attributable to the firearm sentence enhancements. Id.

To their credit, all participants in the system balked at this result. But they felt their hands were tied by our state statutes.

We now hold that the sentencing judge's hands are not tied.  Because "children are different" under the Eighth Amendment and hence "criminal procedure laws" must take the defendants' youthfulness into account, sentencing courts must have absolute discretion to depart as far as they want below otherwise applicable SRA ranges and/or sentencing enhancements when sentencing juveniles in adult court, regardless of how the juvenile got there.  We affirm all convictions but remand both cases for resentencing.

March 2, 2017 in Assessing Graham and its aftermath, Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, State Sentencing Guidelines | Permalink | Comments (10)

Saturday, February 25, 2017

Disconcerting review of modern America highlighting impacts of opioid epidemic and mass criminal enforcement

March_2017_CoverA helpful reader highlighted to me this extended article from Commentary by Nicholas Eberstadt that covers a lot of (depressing) ground about modern realities in the United States.  The full title of the piece highlights its themes: "Our Miserable 21st Century: From work to income to health to social mobility, the year 2000 marked the beginning of what has become a distressing era for the United States." I recommend the full article for lots of reasons (especially for those still struggling to figure out why so many folks were inclined to vote for Prez Trump), and here snippets of passages that struck me as particularly interesting for those concerned with modern opioid problem and broader criminal justice realities:

The opioid epidemic of pain pills and heroin that has been ravaging and shortening lives from coast to coast is a new plague for our new century. The terrifying novelty of this particular drug epidemic, of course, is that it has gone (so to speak) “mainstream” this time, effecting breakout from disadvantaged minority communities to Main Street White America. By 2013, according to a 2015 report by the Drug Enforcement Administration, more Americans died from drug overdoses (largely but not wholly opioid abuse) than from either traffic fatalities or guns. The dimensions of the opioid epidemic in the real America are still not fully appreciated within the bubble, where drug use tends to be more carefully limited and recreational. In Dreamland, his harrowing and magisterial account of modern America’s opioid explosion, the journalist Sam Quinones notes in passing that “in one three-month period” just a few years ago, according to the Ohio Department of Health, “fully 11 percent of all Ohioans were prescribed opiates.” And of course many Americans self-medicate with licit or illicit painkillers without doctors’ orders.

In the fall of 2016, Alan Krueger, former chairman of the President’s Council of Economic Advisers, released a study that further refined the picture of the real existing opioid epidemic in America: According to his work, nearly half of all prime working-age male labor-force dropouts — an army now totaling roughly 7 million men — currently take pain medication on a daily basis....

But how did so many millions of un-working men, whose incomes are limited, manage en masse to afford a constant supply of pain medication? Oxycontin is not cheap. As Dreamland carefully explains, one main mechanism today has been the welfare state: more specifically, Medicaid, Uncle Sam’s means-tested health-benefits program.... In 21st-century America, “dependence on government” has thus come to take on an entirely new meaning....

The drop in crime over the past generation has done great things for the general quality of life in much of America. There is one complication from this drama, however, that inhabitants of the bubble may not be aware of, even though it is all too well known to a great many residents of the real America. This is the extraordinary expansion of what some have termed America’s “criminal class” — the population sentenced to prison or convicted of felony offenses — in recent decades. This trend did not begin in our century, but it has taken on breathtaking enormity since the year 2000.

Most well-informed readers know that the U.S. currently has a higher share of its populace in jail or prison than almost any other country on earth, that Barack Obama and others talk of our criminal-justice process as “mass incarceration,” and know that well over 2 million men were in prison or jail in recent years. But only a tiny fraction of all living Americans ever convicted of a felony is actually incarcerated at this very moment. Quite the contrary: Maybe 90 percent of all sentenced felons today are out of confinement and living more or less among us. The reason: the basic arithmetic of sentencing and incarceration in America today. Correctional release and sentenced community supervision (probation and parole) guarantee a steady annual “flow” of convicted felons back into society to augment the very considerable “stock” of felons and ex-felons already there. And this “stock” is by now truly enormous.

One forthcoming demographic study by Sarah Shannon and five other researchers estimates that the cohort of current and former felons in America very nearly reached 20 million by the year 2010. If its estimates are roughly accurate, and if America’s felon population has continued to grow at more or less the same tempo traced out for the years leading up to 2010, we would expect it to surpass 23 million persons by the end of 2016 at the latest. Very rough calculations might therefore suggest that at this writing, America’s population of non-institutionalized adults with a felony conviction somewhere in their past has almost certainly broken the 20 million mark by the end of 2016. A little more rough arithmetic suggests that about 17 million men in our general population have a felony conviction somewhere in their CV. That works out to one of every eight adult males in America today.

We have to use rough estimates here, rather than precise official numbers, because the government does not collect any data at all on the size or socioeconomic circumstances of this population of 20 million, and never has. Amazing as this may sound and scandalous though it may be, America has, at least to date, effectively banished this huge group—a group roughly twice the total size of our illegal-immigrant population and an adult population larger than that in any state but California—to a near-total and seemingly unending statistical invisibility. Our ex-cons are, so to speak, statistical outcasts who live in a darkness our polity does not care enough to illuminate—beyond the scope or interest of public policy, unless and until they next run afoul of the law.

Thus we cannot describe with any precision or certainty what has become of those who make up our “criminal class” after their (latest) sentencing or release. In the most stylized terms, however, we might guess that their odds in the real America are not all that favorable. And when we consider some of the other trends we have already mentioned — employment, health, addiction, welfare dependence — we can see the emergence of a malign new nationwide undertow, pulling downward against social mobility.

February 25, 2017 in Collateral consequences, Drug Offense Sentencing, Offender Characteristics | Permalink | Comments (3)

Wednesday, February 15, 2017

"Emotional Judges and Unlucky Juveniles"

The title of this post is the title of this notable new paper on SSRN authored by two economists, Naci Mocan and Ozkan Eren. Here is the abstract:

Employing the universe of juvenile court decisions in a U.S. state between 1996 and 2012, we analyze the effects of emotional shocks associated with unexpected outcomes of football games played by a prominent college team in the state. We investigate the behavior of judges, the conduct of whom should, by law, be free of personal biases and emotions. We find that unexpected losses increase disposition (sentence) lengths assigned by judges during the week following the game. Unexpected wins, or losses that were expected to be close contests ex-ante, have no impact.

The effects of these emotional shocks are asymmetrically borne by black defendants. We present evidence that the results are not influenced by defendant or attorney behavior or by defendants’ economic background. Importantly, the results are driven by judges who have received their bachelor’s degrees from the university with which the football team is affiliated. Different falsification tests and a number of auxiliary analyses demonstrate the robustness of the findings.

These results provide evidence for the impact of emotions in one domain on a behavior in a completely unrelated domain among a uniformly highly-educated group of individuals (judges), with decisions involving high stakes (sentence lengths). They also point to the existence of a subtle and previously-unnoticed capricious application of sentencing.

February 15, 2017 in Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Who Sentences? | Permalink | Comments (4)

Repeat rape and murder for sex offender subject to monitoring shows limits of GPS as incapacitation tool

This article in my local paper about a local murder that has received a lot of attention provides a cold reminder that GPS monitoring typically cannot and will not alone serves as fool-proof crime prevention tool.  The article is headlined "Ex-convict charged in slaying of Ohio State student was on GPS monitoring," and here are the details:

A sex offender who is accused of abducting, raping and killing an Ohio State University student was on GPS monitoring. Brian L. Golsby, 29, who was released from state prison on Nov. 13 after serving six years for robbery and attempted rape, had special conditions of supervision under his post-release control for five years.

"I can confirm that he was on GPS monitoring, which is not uncommon due to the fact that he did not have a permanent residence upon his release," said JoEllen Smith, a spokeswoman for the Ohio Department of Rehabilitation and Correction. Golsby was living in a state-contracted residential housing program that granted him a temporary residence.

Grove City police arrested Golsby after 21-year-old Reagan Tokes' body was found on Feb. 9 near the entrance of Scioto Grove Metro Park. Detectives say Golsby abducted Tokes after she left work Feb. 8 in the Short North.  He forced her to withdraw $60 from an ATM, raped her and fatally shot her twice in the head before dumping her body. Investigators already had Golsby's DNA from prior offenses and matched it to a cigarette butt left in Tokes' car. Tokes was set to graduate from OSU in May with a degree in psychology.

Smith said state law prevents her from going into details of the conditions Golsby had to follow.  All offenders are prohibited from carrying guns, but it's unclear whether travel restrictions were placed on Golsby in addition to what sex offenders have to abide by.  "DRC contracts with community providers for electronic monitoring and GPS services. The level of monitoring depends on the offender and circumstances for which the service is requested," Smith said.

She would not specify which vendors are used or describe the level of monitoring that offenders like Golsby could have. It's unclear whether he triggered an alert while wearing the bracelet, or, if he had discarded the monitor, how parole officers would have been notified. It's also unknown how often parole officers check the movements of offenders assigned to them, or how far back the monitor records travel. "DRC is not providing specifics relative to this case due to the ongoing criminal investigation," Smith said.

Columbus police have been looking at Golsby as a possible suspect in a series of attacks on women in German Village and near Nationwide Children's Hospital.

February 15, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (28)

Tuesday, February 14, 2017

Hard-to-believe harshness in prosecution of Virginia teen receiving underage pics

This new Reason piece by Lenore Skenazy tell a tale about a teenager in Virginia prosecuted for a sex offense that seem truly hard to believe. The piece is fully headlined "Teen Girl Sent Teen Boy 5 Inappropriate Pictures. He Faced Lifetime Registry as a 'Violent Sex Offender' or 350 Years in Jail. Welcome to the world of teens, computers, and prosecutors who want to look tough on sex offenders." And here is the story:

Zachary, now 19, is in jail awaiting sentencing for five pictures his teenage girlfriend sent him of herself in her underwear.  He faced a choice between a possible (though unlikely) maximum sentence of 350 years in prison, or lifetime on the sex offender registry as a "sexually violent offender" — even though he never met the girl in person. Here's what happened.

About two years ago, when Zachary was a 17-year-old high school senior in Stafford County, Virginia, a girl in his computer club invited him over to visit.  She introduced him to her younger sister, age 13.  This younger sister told Zachary he reminded her of a friend: this friend, also a 13-year-old girl, shared Zachary's love of dragons and videogames.

The two 13-year-olds started skyping Zachary together.  Eventually Zachary and the dragon-lover struck up a online friendship, which developed into a online romance.  By the summer, a month after Zachary turned 18, the girl sent him five pictures of herself in her underwear.  Her face was not visible, nor were her private parts.

That's according to information provided by Zachary's parents, as well as an evaluation with Zachary conducted by a psychologist.  Zachary is incredibly smart, according to the psychologist, though socially awkward and emotionally immature.  Importantly, he does not possess "distorted" ideas about sex, according to the psychologist.

Even so, Zachary was arrested and charged with 20 felonies, including indecent liberties with a minor, using a computer to propose sex, and "child porn reproduce/transmit/sell," even though he did not send or sell the pictures to anyone.  All this, from five underwear pictures.  If convicted, Zachary's father told me, he faced a theoretically possible maximum sentence of 350 years.

Instead, he took a plea bargain.  This is what prosecutors do: scare defendants into a deal.  Zachary agreed to plead guilty to two counts of "indecent liberties with a minor." For this, he will be registered as a violent sex offender for the rest of his life. Yes, "violent" — even though he never met the girl in person.

Zachary's dad wrote to the authorities asking about this, and got a letter back from the Virginia State Police reiterating that, "This conviction requires Zachary to register as a sexually violent offender."  The letter, which was obtained by Reason, added that in three years, "a violent sex offender or murderer" can petition to register less frequently than every three months.  "How do you like that?" said the dad in a phone conversation with me. "Same category as a murderer."

As part of the plea, Zachary also agreed never to appeal. He will be sentenced on March 9. Until then, he remains in jail. If this sounds like a punishment wildly out of whack with the crime, welcome to the world of teens, computers, and prosecutors who want to look tough on sex offenders. The girl did not wish to prosecute Zachary, according to his dad. He told me the pictures came to light because she had been having emotional issues, possibly due to her parents' impending divorce.  Eventually she was admitted to a mental health facility for treatment, and while there she revealed the relationship to a counselor.  The counselor reported this to her mother, the police, or both (this part is unclear), leading the cops to execute a search warrant of Zachary's electronic devices where they found the five photos and the chat logs....

Outraged readers should root for two things. First, that this case prompts the Virginia legislature to review the laws that enable draconian persecutions like the one against Zachary.

Second, that Zachary be given a punishment that truly fits the crime. If you recall the case of another Zach — Zach Anderson, a 19-year-old who had sex with a girl he honestly believed was 17 (because she said so) but was actually 14 — he was originally sentenced to 25 years on the sex offender registry.  But after public outcry, he got two years' probation instead, on a "diversion program." A program like this is sometimes available for first-time offenders. It sounds far more reasonable. Or maybe Zachary could do some community service — like speaking at high school assemblies to warn students that what seems like consensual teenage shenanigans could land them on the registry for the rest of their lives.

I have no basis to question the basic account of this case, but I cannot help but think there is more to this story given that the defendant he was charged with 20 felonies. I do not know Virginia law well, but really wonder just how five texted pics alone could provide the foundation for charging 20 felonies.

UPDATE:  A helpful reader alerted me to this local article from last month with suggests that part of the crimes of the defendant here included trying to arranging a meeting for sex with the underage girl discussed above.  This addition aspect of the story makes it a little easier to believe and understand, though it does not undercut the apparent reality that prosecutors here took a remarkably aggressive posture in a case involving essentially teen sexting.

February 14, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Offense Characteristics, Sex Offender Sentencing, Who Sentences? | Permalink | Comments (20)

"Maryland prosecutor sentenced for hotel sex acts in front of glass door in Ocean City"

The title of this post is the headline of this Washington Post article, which sort of has a Valentine's Day theme.  I recommend the article if full in order to get the "full monty" details, but here are highlights from the start of the article and its update:

It’s Valentine’s Day, and the top prosecutor in Cecil County, Md., having already celebrated his love with his wife in full view of numerous others, will stand before a judge today and receive a criminal sentence for such public displays of affection.

Edward “Ellis” Rollins III (R) was arrested in June for indecent exposure and disorderly conduct, for having sex, standing naked and other related acts at the sliding glass door of his tenth-floor Ocean City, Md., hotel room, while four tourists, a security officer and two Ocean City police officers watched.  He was convicted by a Worcester County, Md., jury after a two-day trial in December. Rollins, 61, likely will not face jail time for the two misdemeanor convictions.... He did remove himself from consideration for a circuit court judgeship, which he was scheduled to interview for with the governor shortly after his arrest, on a bench where both his father and grandfather served.

Rollins did not return phone and email messages Monday, and his attorney, Cullen Burke, also did not return a call.  At trial, Rollins did not testify, but his lawyer did not deny that Rollins and his wife enjoyed various carnal relations next to the sliding glass door of their hotel room.  Burke described Rollins and his wife, Holly Rollins, as “still newlyweds” after six years of marriage, according to the Cecil Whig, and Holly Rollins testified she had no idea anyone was watching from the adjacent condominiums. Burke said there was 172 feet between the two buildings and that the Rollins’ hotel room “was a speck” in the vision of the tourists’ apartment.

But the four Pennsylvania women who spotted the activity, on two different days, felt it was much more visible than a speck. They returned to Ocean City and testified in detail about Rollins’ actions. It really wasn’t the sex so much as Rollins’ naked dancing and posing at the sliding glass door that truly offended the visitors, according to the media reports of their testimony. “You’re just sickening,” one woman turned and said to Rollins during her testimony. “I have nightmares because of you. I argue with my husband because it’s all I can talk about.”

UPDATE, 2:02 p.m.: Worcester County Circuit Judge Brian Shockley imposed a $1,000 fine and a 90-day jail sentence with all time suspended for Ellis Rollins, along with 100 hours of community service, 18 months of supervised probation and mental health treatment.  Worcester County State’s Attorney said he asked for a two-year sentence with 18 months suspended, which would have meant Rollins would have spent six months in the Worcester jail, but Shockley did not take that recommendation.

February 14, 2017 in Offender Characteristics, Offense Characteristics, Sex Offender Sentencing | Permalink | Comments (5)

Poll shows strong commitment to rehabilitation and prison alternatives for youth

A new poll sponsored by the Youth First Initiative reveals notable support for a rehabilitative approach to juvenile justice.  This webpage from Youth First reports on the essentials:

A new poll released today by Youth First shows that 78 percent of Americans favor keeping young people out of prisons and instead prefer community-based alternatives that are proven to lead to better outcomes.

At a time when partisan polarization is dominating the political landscape, the poll finds that Americans from a wide range of backgrounds and all political stripes support shifting the youth justice system’s focus from incarceration and punishment to prevention and rehabilitation.  Youth First, a national advocacy organization working to end the unconscionable practice of youth incarceration and reform the youth justice system, commissioned the poll which was conducted by GBA Strategies.

“Youth prisons are notoriously dangerous, ineffective, and outdated – and there is a clear consensus that it’s time to change the system,” said Liz Ryan, President of Youth First. “We know that kids can be rehabilitated without being locked up, if given the opportunity. States across the nation should unify behind this growing movement to close youth prison facilities and focus on solutions that actually work.”

The survey of over 1,000 adults found that:

· 89 percent support design treatment and rehabilitation plans that include a youth’s family in planning and services.

· 83 support providing financial incentives for states and municipalities to invest in alternatives to youth incarceration, such as intensive rehabilitation, education, job training, community services, and programs that provide youth the opportunity to repair harm to victims and communities.

· 69 percent support increasing funding to provide more public defenders to represent children in court.

· 70 percent support requiring states to reduce racial and ethnic disparities in the youth justice system.

Respondents cut across partisan affiliations, with 81% of Democrats, 83% of Independents, and 68% of Republicans supporting reform efforts.

February 14, 2017 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (4)

Saturday, February 11, 2017

A (crazy) harsh sentence for a voter fraud conviction in Texas

According to Prez Trump, voter fraud may be one of the most prevalent federal crimes in the United States (perhaps second only to marijuana use).  In light of the President's claims in this regard, I have to think the crazy harsh sentence imposed by a state court in Texas reported in this New York Times article is intended to try to deter this rampant crime.  The lengthy front-page NYT article is headlined "Illegal Voting Gets Texas Woman 8 Years in Prison, and Certain Deportation," and here are the interesting details:

Despite repeated statements by Republican political leaders that American elections are rife with illegal voting, credible reports of fraud have been hard to find and convictions rarer still.

That may help explain the unusually heavy penalty imposed on Rosa Maria Ortega, 37, a permanent resident and a mother of four who lives outside Dallas. On Thursday, a Fort Worth judge sentenced her to eight years in prison — and almost certainly deportation later — after she voted illegally in elections in 2012 and 2014.

The sentence for Ms. Ortega, who was brought to this country by her mother as an infant, “shows how serious Texas is about keeping its elections secure,” Ken Paxton, the Texas attorney general, said in a statement. Her lawyer called it an egregious overreaction, made to score political points, against someone who wrongly believed she was eligible to vote.

“She has a sixth-grade education. She didn’t know she wasn’t legal,” said Ms. Ortega’s lawyer, Clark Birdsall, who once oversaw voter fraud prosecutions in neighboring Dallas County. “She can own property; she can serve in the military; she can get a job; she can pay taxes. But she can’t vote, and she didn’t know that.”

The punishment was strikingly harsh for an offense that usually merits far less jail time, if any. A second fraudulent ballot case in metropolitan Fort Worth ended in 2015 with probation. Ms. Ortega insisted in court that she had been unaware that she was ineligible to vote and was confused by registration forms and explanations by election officials.

Prosecutors for Mr. Paxton and Tarrant County said that she had lied and that the same forms and conversations proved it. A jury convicted her Wednesday of two felony charges. Mr. Birdsall said Mr. Paxton’s office had been prepared to dismiss all charges against Ms. Ortega if she agreed to testify on voting procedures before the Texas Legislature. But the Tarrant County criminal district attorney, Sharen Wilson, vetoed that deal, he said, insisting on a trial that would showcase her office’s efforts to crack down on election fraud.

Both the attorney general’s office and the county prosecutor declined to comment on the specifics of Mr. Birdsall’s statement, citing privacy rules for plea-bargain negotiations. A spokeswoman for Ms. Wilson, Sam Jordan, said any negotiations were only “discussions,” a description Mr. Birdsall disputed....

Ms. Ortega’s case is unusual not just for its harshness but for its circumstances. Many fraud convictions that draw prison sentences — and some that do not — involve clear efforts to influence election results. Texas prosecutors won prison sentences for four men who moved into a hotel in 2010 to claim residency so they could sway a local election. A woman in Brownsville, Tex., was placed on five years’ probation for casting five absentee ballots under different names in elections in 2012.

Lawyers offered no clear motive for Ms. Ortega’s decision to cast ballots beyond her desire to participate in elections. Ms. Ortega, a native of Monterrey, Mexico, came to Texas with her mother when she was an infant. More than a decade later, the family was scattered after the mother was arrested and deported. Two brothers born in Dallas automatically gained citizenship; Ms. Ortega became a permanent resident and gained a green card, her brother Tony Ortega, 35, said in an interview.

As a Dallas County resident, she registered to vote and later cast ballots in elections in 2012 and 2014, her lawyer, Mr. Birdsall, said. While that was illegal, there was no attempt to break the law, he maintained: Some government forms allow applicants to declare that they are permanent residents, but the voting registration form asks only whether an applicant is a citizen. Lacking the permanent resident option, he said, she ticked the “citizen” box. When the county later mailed her a registration card, he said, she believed she “was good to go.”

Ms. Ortega moved to neighboring Tarrant County and again registered, but this time checked a box affirming that she was not a citizen. When her application was rejected in March 2015, the trial showed, she called election officials and told them that she had previously voted in Dallas County without difficulty. Told that she could not vote unless she was a citizen, she asked for another application, and returned it with a check in the box affirming citizenship. That raised questions, and law enforcement officials arrested her on fraud charges.

Jonathan White, an assistant attorney general who helped prosecute the Ortega case with Tarrant County officials, said the evidence of fraud was unambiguous. “She told the elections office she was a citizen,” he said. “She told everyone else she wasn’t,” including a recorded statement to prosecutors in which she said she was a citizen of Mexico.

Mr. Birdsall said the arrest and prosecution are punishing a woman for her own confusion over whether residency and citizenship confer the same rights. “She wasn’t trying to topple the country,” he said. “She was trying to make more serious decisions about our country than the 50 percent of the people who didn’t bother to vote in the last election.”...

Ms. Ortega is now in a Fort Worth jail awaiting transfer to a state prison. Her four children, ages 13 to 16, are being cared for by siblings and her fiancé, Oscar Sherman, 27, a trucker who said her arrest had scotched their plans to marry. The children’s fate is unclear. Mr. Sherman lacks legal custody; her siblings are still debating their options.

Ms. Ortega’s future is bleak. The federal government frowns on giving green cards to felons. “She’ll do eight years in a Texas prison,” Mr. Birdsall said. “And then she’ll be deported, and wake up blinking and scratching in a country she doesn’t know.”

Far-right websites have seized on Ms. Ortega’s conviction as proof that Mr. Trump is right about rampant fraud and efforts by Democrats to steal the November election. There is, however, at least one flaw in that story: Ms. Ortega was a registered Republican. “She voted for Mitt Romney over Barack Obama in the 2012 election. In 2014 she voted for our current attorney general, Ken Paxton,” Mr. Birdsall said. “And guess what? He’s the one responsible for prosecuting her.”

February 11, 2017 in Examples of "over-punishment", Offender Characteristics, Offense Characteristics | Permalink | Comments (30)

Thursday, February 09, 2017

Noting the concerns prompted by aging sex offenders

This short local Ohio article, headlined "States look for solutions to growing number of aging sex offenders," provides yet another example of how the sex offender label has echoes throughout so many aspects of society. Here are excerpts from the piece:

As states like Ohio deal with a growing number of aging registered sex offenders, another state is examining what to do with elderly sex offenders when they are in need of nursing home care.  In Iowa, lawmakers are studying whether to establish a separate facility for sex offenders to keep them away from other nursing home residents.

A Dayton Daily News examination found numerous examples of lax oversight of sex offenders in nursing homes in Ohio.  This newspaper’s investigation found 136 sex offenders were living in 43 nursing homes in Ohio in October. It also identified potential problems with the safety net, from under-staffing at homes with offenders to a lack of information on the public registry used by facilities to make admission decisions.

The Iowa Senate Human Resources Committee this week approved a resolution which asks the state’s legislature to create a committee to study the establishment of a facility to care specifically for those who are sex offenders or are sexually aggressive.

Iowa, like Ohio, has no dedicated facility for housing sex offenders in need of long-term care.  “The lack of such a facility places other geriatric patients, residents, and tenants at risk for being sexually abused,” the Iowa resolution says.

The proposal suggests studying either establishing a new facility, or expanding an existing one to keep sex offenders or sexually aggressive individuals separate from the general nursing home population.

February 9, 2017 in Offender Characteristics, Sex Offender Sentencing | Permalink | Comments (9)

Monday, February 06, 2017

The hardest of cases for death penalty abolitionists: convicted murderer who keeps murdering while in prison

This local news report of an apparent murder by an Ohio inmate already convicted in two other murders serves as a reminder that there are limits on how much you can incapacitate some persons who seem intent on being violent.  The article is headlined "Two-time murderer suspected of killing another inmate, " and here are the ugly details:

A two-time murderer is suspected of killing another inmate, a Franklin County man, aboard a prison transport bus while it traveled south on Rt. 23 from Columbus on Wednesday evening.  The body of David L. Johnson, 61, was found in the Ohio Department of Rehabilitation and Correction bus on Thursday evening when it stopped to deliver him to the Ross Correctional Institution, said Ross County Prosecutor Matthew Schmidt.

Johnson, who was serving an eight-year sentence for sexual battery, apparently was strangled; Casey Pigge, 28, is "absolutely the suspect" in the death, Schmidt said. Other inmates also were locked into a caged section of the bus with Johnson and Pigge, but apparently did not alert the guards and driver at the front of the bus of the assault, Schmidt said. The guards apparently cannot see back into all sections of the bus, he said.  The inmates were wearing handcuffs, and perhaps belly chains, but could move around, the prosecutor said.

Inmates, including from the Southern Ohio Correctional Facility near Lucasville and the Ross Correctional Institution near Chillicothe, were taken aboard the bus to Columbus for medical treatment on Thursday and were on the return leg of the trip south when the apparent slaying occurred.

Pigge is serving a 30-year to life sentence at the Lucasville prison for the 2008 murder of Rhonda Sommers, 52, the mother of his then-girlfriend. Pigge was convicted of stabbing the woman and then setting her apartment on fire.  Last week, Pigge pleaded guilty to using a cement block last year to repeatedly strike to kill his cellmate, Luther Wade, 26, of Springfield, at the Lebanon Correctional Institution in Warren County. Wade, serving a 10-year sentence for aggravated burglary, was repeatedly struck in the head. Pigge faces another life sentence in the slaying.

Schmidt... questioned Pigge having access to other inmates aboard the bus given his history of violence. Investigators are working to determine if Johnson died in Franklin County, Pickaway County or Ross Country as the bus traveled south, Schmidt said. "He crushed his cellmate's head with a cinder block. You would think the sensible thing to do would be to make sure he doesn't have free access to other inmates at any time.  Apparently that is not an issue for the folks at DRC," Schmidt said.

Given that Pigge is seemingly due to get an LWOP sentence for previously having "crushed his cellmate's head with a cinder block," he would be essentially getting a "free" murder if he were not at least potentially subject to something worse than LWOP for his latest murder.  Moreover, given than Pigge has now slaughtered two fellow inmates during his first decade of incarceration, the only real public safety options for him would seem to be long-term solitary confinement or the death penalty. 

I am not asserting that folks like Pigge make the death penalty a must, but I am saying that it seems quite difficult to figure out what a just and effective punishment is for a murderer who seems keen and able to keep killing even while incarcerated.

February 6, 2017 in Death Penalty Reforms, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Purposes of Punishment and Sentencing | Permalink | Comments (8)

Friday, February 03, 2017

Lamenting that Henry Montgomery (and many other juve LWOPers) may not much or any benefit from Montgomery

Jody Kent Lavy, who is executive director of the Campaign for the Fair Sentencing of Children, has this notable new commentary headlined "Supreme Court's will on juvenile offenders thwarted." Here are excerpts:

A little more than a year ago, the U.S. Supreme Court ruled 6-3 in Montgomery vs. Louisiana that Henry Montgomery — and anyone else who received mandatory life without parole for a crime committed when they were younger than 18 — was serving an unconstitutional sentence and deserved relief.

The sweeping opinion augmented three earlier decisions that had scaled back the ability to impose harsh adult penalties on youth, recognizing children’s unique characteristics made such penalties cruel and unusual. The Montgomery case made clear that the Eighth Amendment bars the imposition of life without parole on youth in virtually every instance.

But, in violation of the decision, prosecutors are seeking to re-impose life without parole in hundreds of cases, and judges are imposing the sentence anew. Hundreds of people serving these unconstitutional sentences — primarily in Louisiana, Pennsylvania and Michigan — are still awaiting their opportunities for resentencing. Henry Montgomery is among them.

I recently met Montgomery, now 70, at the Louisiana State Penitentiary in Angola, notorious as a place where most of its thousands of prisoners are destined to die. Montgomery, who is African-American, was convicted of killing a white police officer as a teenager. At the time, John F. Kennedy was president. Though his resentencing has yet to be scheduled, prosecutors say they plan to again seek life without parole.

Given last year’s ruling from the nation’s highest court, it might seem surprising that Montgomery, remorseful for the crime he committed more than five decades ago, is still languishing in prison. This is indeed outrageous, and it highlights the failings of our justice system, especially as it pertains to juveniles....

Henry Montgomery is living on borrowed time. He is a frail, soft-spoken, generous man. When it was lunchtime at the prison, I noticed that he wasn’t eating. When I asked why, he said he wasn’t sure there was enough food to go around. On the anniversary of the ruling that was supposed to bring him a chance of release, we owe it to Montgomery, as well as the thousands of others sentenced as youth to die in prison, to seek mercy on his behalf. We cannot give up until the day comes when children are never sentenced to life — and death — in prison.

February 3, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Sentences Reconsidered | Permalink | Comments (4)

Wednesday, February 01, 2017

"Say no to restorative justice for sex offenders"

The title of this post is the headline of this notable commentary published in The Hill authored by Michael Dolce.  Here are some of the details:

The debate around the Senate’s possible confirmation of Betsy DeVos, President-elect Trump’s nominee for Education Secretary, should kick start a national discussion on how colleges and universities handle sexual assault.  Recently, much of that conversation has revolved around “restorative justice,” programs that aim to respond to misconduct or crime by redressing the harm inflicted on victims and the community, rather than simply punishing offenders.

As a victim of childhood sexual abuse myself and an attorney who now represents sexual assault survivors every day, I can say without doubt that restorative justice is not only horribly insufficient for handling sexual abuse but, in many cases, actually serves to leave an offender free to offend again.

Whether as an alternative or a supplement to traditional discipline, restorative justice programs require offenders to make amends with victims — often with apologies and mediation — and participate in reformative programs like anger management or cultural sensitivity training, measures rarely imposed by the criminal justice system.  In an education setting, employing these programs for offenses like racial harassment and alcohol misuse have had some success, leading to understandable calls from some criminal justice reform advocates and college administrators to expand their use to college sexual misconduct cases.

It’s true that our colleges and universities routinely fail victims of sexual assault, as last year’s abhorrent handling of the Brock Turner case at Stanford University reminded us.  It’s also true, as the Chicago Tribune reported late last month, that the future of campus sex assault investigations under President Trump are “uncertain,” particularly since GOP convention platform calls for a reduced federal government role in investigations of campus sexual assault.

But, for several important reasons, restorative justice is not the answer for handling sex offenders. First, this method only works if offenders feel empathy when confronted with the impact of their misconduct.

According to prominent forensic psychology researchers Drs. Daryl Kroner and Adelle Forth, about half of convicted sex offenders exhibit psychopathology, meaning they are incapable of feeling remorse or empathizing with their victims. Sex offenders are often skilled at manipulating others into believing they are safe, which helps them gain their victims’ trust before attacking....

Second, advocates for restorative justice programs in this context often make the flawed assumption that sex offenders are similar to repeat offenders of other habitual offenses like drunk driving. But while underage drinking and alcohol abuse are certainly a common problem on university campuses, alcohol does not turn a college student into a sex offender. In fact, according to the National Institute on Alcohol Abuse and Alcoholism, some offenders actually drink alcohol before committing sexual assault specifically to later justify their behavior. Relying on restorative justice to ‘treat’ this group would be a dangerous validation of their criminal deceit.

The third common argument – that schools might be safe relying on restorative justice methods in cases of sexual harassment that don’t involve physical assault – is risky at best. Those who sexually harass others are objectifying and dehumanizing their victims, behavior that is often a prelude to assaults....

The reality is that I believe the majority of sex offenders are largely incapable of empathy. Two-thirds of male sex offenders will re-offend if they are not treated and restrained as criminals. The consensus among mental health and criminal justice professionals is that most sex criminals cannot be reformed; they can only be monitored, controlled and contained.

These are people who look at the tears and agony on victims’ faces, show no mercy and then quickly move on to their next victim. Restorative justice can be a wonderful tool for certain types of offenses, but let’s not ask victims of sexual assault to suffer an even greater burden by making them take part in their attackers’ so-called “reformation.”

February 1, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Sex Offender Sentencing | Permalink | Comments (19)

Tuesday, January 31, 2017

"Delaying a Second Chance: The Declining Prospects for Parole on Life Sentences"

The title of this post is the title of this notable new report released today by The Sentencing Project. Here is the first part of the report's Executive Summary:

Amid growing public support for criminal justice reform, policymakers and criminal justice practitioners have begun to scale back prison sentences for low-level, nonviolent crimes. Although the results have been modest — a 5% reduction in the overall U.S. prison population between 2009 and 2015 — this shift follows almost four decades of prison expansion. But so far, criminal justice reform has largely excluded people in prison with life sentences.  This growing “lifer” population both illustrates and contributes to the persistence of mass incarceration.

Most people serving life sentences were convicted of serious crimes.  Their incarceration was intended to protect society and to provide appropriate punishment.  But many were sentenced at a time when “life with the possibility of parole” meant a significantly shorter sentence than it has become today. Many remain incarcerated even though they no longer pose a public safety risk.

Researchers have shown that continuing to incarcerate those who have “aged out” of their crime-prone years is ineffective in promoting public safety.  Long sentences are also limited in deterring future crimes given that most people do not expect to be apprehended for a crime, are not familiar with relevant legal penalties, or criminally offend with their judgment compromised by substance abuse or mental health problems.  Unnecessarily long prison terms are also costly and impede public investments in effective crime prevention, drug treatment, and other rehabilitative programs that produce healthier and safer communities.

Despite this body of criminological evidence, the number of people serving life sentences has more than quadrupled since 1984 — a faster rate of growth than the overall prison population.  Even between 2008 and 2012, as crime rates fell to historic lows and the total prison population contracted, the number of people serving life sentences grew by 12%.  By 2012, one in nine people in U.S. state and federal prisons — nearly 160,000 people — were there under life sentences.  Two factors have driven this growth: the increased imposition of life sentences, particularly those that are parole-ineligible, and an increased reluctance to grant parole to the 110,000 lifers who are eligible. MO

January 31, 2017 in Data on sentencing, Detailed sentencing data, Offender Characteristics, Offense Characteristics, Prisons and prisoners, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (1)

Sunday, January 29, 2017

"A Better Approach to Violent Crime"

The title of this post is the headline given by the Wall Street Journal to John Pfaff's extended weekend commentary about crime and punishment in the United States. The subheadline provides a better summary of the themes of the extended essay: "If we’re going to end mass incarceration in the U.S., it will mean figuring out better ways to prevent violent crimes and to deal with those who commit them." John's analysis of modern mass incarceration is always in the must-read category, and here are some extended excerpts from this latest piece that help highlight why:

If we are serious about ending mass incarceration in the U.S., we will have to figure out how to lock up fewer people who have committed violent acts and to incarcerate those we do imprison for less time.

There is an obvious rejoinder, of course: Don’t we need to keep people convicted of violence locked up for long periods? Isn’t this how we’ve kept the crime rate down for so long? The answer to both of those questions is, “No, not likely.” Simply put, long prison sentences provide neither the deterrence nor the incapacitation effects that their proponents suggest. (There may be moral arguments for long sentences, but that is a separate issue from public safety.)...

Violence is a phase, not a state. People age into violent behavior and age out of it: A 24-year-old is more violent than a 7-year-old or a 60-year-old. It’s true that some people are more prone to violence than their peers, but almost everyone exhibits some sort of bell-curved trajectory of violence over their lives. Young men are simply more prone to violence than any other demographic group.

It is almost impossible, however, to predict how violent a young person will be in the future. Imposing harsh sanctions for a first violent act needlessly detains many people who are not serious future risks.  In addition — and somewhat counterintuitively — by the time a person in his 30s has generated a long criminal history suggesting that he poses a continuing risk, he is likely to have started “aging out” of crime, violent behavior in particular.

A prominent study of hundreds of at-risk men that tracked their behavior from ages 7 to 70, for example, found that most started to engage in crime in their late teens and began to stop in their mid to late 20s. Only about 10% continued to offend consistently into their 30s, and only about 3% did so at high rates.

California has tested this proposition. Since 2012, the state has granted early release to over 2,000 people convicted under its harsh three-strikes law, and their recidivism rate has been about a 10th of the state average (4.7% vs. 45%) — due in no small part to the fact that those released early are often in their 40s and 50s and thus no longer likely to offend. ​

Whether aimed at younger or older defendants, lengthy incapacitation often imposes substantial, avoidable costs — not just on prison budgets but on society at large, which loses many people who might otherwise be productive citizens.  A long prison sentence also undermines someone’s ability to find the stabilizing influence of a job or a spouse, thus increasing the long-run risk that he will reoffend.

The good news is that a growing number of proven tactics can keep violent crime low, and perhaps reduce it even further, without relying as much on prison. If governments lock up fewer people for violent crimes, they can use some of the savings to help fund these alternatives.

One widely adopted approach is what experts call “focused deterrence,” which was first tried, with great success, in Boston in the mid-1990s. Aimed at reducing the violence associated with gang membership, the program brings gang members together with the police, social-service providers and respected members of the local community. They are told that if violence continues, the police will crack down quickly and severely. Those who agree to put violence behind them, however, are offered help with housing, education, drug and alcohol treatment and other services, and community leaders make a moral plea to them.  Such programs have had a significant effect on street violence in many places. Nine of the 10 high-quality studies that have been done on focused deterrence report strong impacts — a 63% decline in youth homicides in Boston, a 35% decline in murders among “criminally active group members” in Cincinnati and so on. ​

A related but less conventional approach called “Cure Violence” has been tried in New York City and Chicago (and even as far afield as Rio de Janeiro and Basra, Iraq). This program treats gun violence as a public-health problem: If left “untreated,” a shooting will be transmitted to another victim, thanks to retaliation. The idea is to interrupt that cycle, relying on people like former gang members (as opposed to the police) to help shooting victims and their friends and family find other, nonviolent ways to resolve the conflict.

Like focused deterrence, this approach also seeks to provide at-risk youth with access to resources, ranging from housing to entertainment. In New York City, a study conducted between 2010 and 2012 found that areas where Cure Violence operated had experienced 20% fewer shootings as compared with similar areas. Conversely, shootings in Chicago began to rise sharply shortly after a stalemate over the state budget resulted in a drastic cut in funding for Cure Violence in March 2015. The biggest increases in lethal violence occurred in those neighborhoods where the program had been used most widely.

Another key tactic is “hot-spot policing.” Crime is generally concentrated in particular neighborhoods.  Some studies have found that half of all urban crimes take place in under 10% of all city blocks.  In Chicago, nearly 45% of the increase in murders between 2015 and 2016 occurred in only five neighborhoods, home to just 9% of the city’s population. Hot-spot policing identifies these high-crime blocks and significantly increases patrols and community involvement there.

It has produced significant results, even in nearby neighborhoods not subject to increased enforcement, which suggests that people are not simply changing where they commit crimes. The Philadelphia Foot Patrol Experiment, for example, identified 120 blocks that had high levels of violent crime and then assigned additional patrol officers to 60 randomly selected blocks for three months. Hot spots with extra patrols experienced a 23% drop in violent crime relative to those that didn’t. A comprehensive review of the hot-spot literature found that 20 out of 25 tests reported “noteworthy crime control gains.”...

Prison, in short, is by no means the only effective way to respond to violent behavior.  In fact, compared with these programs, prison is likely one of the least efficient approaches that we have.  The declines in incarceration over the past six years are worth celebrating.  But they are modest, in no small part because politicians are understandably afraid to confront a fundamental source of prison growth: our shortsighted policies on violent crime.

If we really hope to scale back our sprawling prison system, we must send fewer people to prison for violent crimes and keep those we do lock up for less time.  Fortunately, we can preserve the tremendous reductions of violence we have experienced over the past 25 years with smarter, safer and more humane approaches.

January 29, 2017 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Recommended reading, Scope of Imprisonment | Permalink | Comments (2)

Thursday, January 26, 2017

Michigan Supreme Court to take up intersection of Apprendi and Miller for juve LWOP sentencing

This local article reports on the notable decision of the top court in Michigan to consider the procedures for deciding whether a juvenile murderer may be sentencing to life without parole.  Here is the backstory:

The Michigan Supreme Court will hear arguments on whether a jury or a judge can decided to send youth offenders to prison for life.  The court issued a decision to hear the arguments in the Tia Skinner case Tuesday, the latest decision that could impact youth-lifers across the state.

In August 2015, the Michigan Court of Appeals ruled the Yale woman convicted in the 2010 killing of her father and attempted murder of her mother should be sentenced by a jury after a hearing to prove beyond a reasonable doubt the killing reflects "irreparable corruption."

St. Clair County Prosecutor Mike Wendling challenged that ruling and asked the Supreme Court to intervene. He said the defense's argument is that a life sentence to a child is the same as a death penalty, which requires a jury to decide. "It's not the same as being put to death," Wendling said.

During the same period, a different panel from the court of appeals ruled a judge should be the one to decide on a life sentence in a juvenile case out of Genesee County. Because of the conflicting rulings, a special conflict panel was assembled by the court of appeals, and in July it ruled judges should handle the re-sentencings.

The legalities of how to re-sentence youth offenders follows the 2012 U.S. Supreme Court ruling that automatic life sentences to those under 18 constituted cruel and unusual punishment. That decision impacts four St. Clair County cases — Skinner, Raymond Carp, Michael Hills and Jimmy Porter....

If a jury is required to set the sentence, Wendling said his office will have to decide if the Skinner, Porter and Hills cases can be successfully recreated for a jury. He said victims and family will also weigh on that decision.

As the title of this post suggests, I think it is more the Apprendi line of jurisprudence than capital jurisprudence that really serves as a basis for contending a jury must make the key finding to permit a juve LWOP sentence. For complicated reasons, I do not think Apprendi must or even should be interpreted to impact Miller-required re-sentencings, but I can understand why some may be inclined to apply Apprendi and Miller this way.

January 26, 2017 in Assessing Miller and its aftermath, Blakely in the States, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (8)

Wednesday, January 25, 2017

"Pro-Con: Death Penalty Exemption For Severly Mentally Ill"

The title of this post is the label given by a Cleveland paper to these two dueling commentaries addressing the recommendation from the Ohio Death Penalty Task Force (on which I had the honor of serving) to create a statutory exemption from capital punishment for people with serious mental illnesses. Here are the headlines and links to the commentaries:

January 25, 2017 in Death Penalty Reforms, Offender Characteristics | Permalink | Comments (2)

Friday, January 20, 2017

You be the judge: what federal sentence for "Dance Mom" star after her guilty plea to financial crimes?

Abby-lee-millerI am not ashamed to admit that some years ago the reality show "Dance Moms" was a regular watch in the Berman home.  My dancing daughters found engaging how the young dancers in the show stood up to the pressures created by teachers and parents; I was amazed at how the adult star, Abby Lee Miller, created a media sensation despite having no obviously distinctive talents.  But now, as this local article highlights, headlined "'Dance Moms' TV star faces sentencing in federal court," Abby Lee Miller is now of interest to me for a very different reason. Here are the details:

“Dance Moms” TV star Abby Lee Miller, convicted of hiding assets from bankruptcy court and sneaking cash into the U.S. to conceal it, says she shouldn’t go to federal prison. Ms. Miller, whose real name is Abigale Miller, is asking U.S. District Judge Joy Flowers Conti for probation.

But the government says she has shown no respect for the law — at one point she sent an email to her accountant using a vulgar term in referring to the bankruptcy judge handling her case — and deserves the two years to 30 months called for by federal sentencing guidelines.

Ms. Miller’s sentencing will start today. A second day has been set aside to finish it on Feb. 24. The unusual format was necessary because the sentencing is likely to be contentious enough to require two days and the judge also is handling the ongoing drug trial of former Pittsburgh Steelers doctor Richard Rydze.

Ms. Miller became a federal felon in June when she pleaded guilty to concealing assets from her TV show from federal bankruptcy court in Pittsburgh. She also admitted that she sneaked cash into the country in plastic bags stuffed into luggage after returning from dance trips in Australia. In pre-sentencing filings, Ms. Miller gave an accounting of her past, saying her family-run Penn Hills dance studio was in financial trouble in the late 2000s because of her lack of financial knowledge and a drop in enrollment caused by the global economic crisis and the decline of Penn Hills. She declared bankruptcy in 2010.

But when her reality TV show took off in 2011, she and her lawyer said, she suddenly became a star and didn’t know how to handle the fame that it brought. She soon became overwhelmed. “She was simply ill-equipped to manage her good fortune,” wrote attorney Brandon Verdream. He said she always intended to pay off her creditors at 100 percent and has admitted that what she did was wrong. “It was a foolish decision to skirt the law and she has accepted a felony conviction as the wages of her frivolity,” Mr. Verdream wrote.

He and Ms. Miller, who had been splitting time among homes in California, Florida and Penn Hills, also pointed to all of the people she has helped over the years as one reason she should not be jailed, including the 40-some dancers she has trained who went on to professional careers on Broadway and elsewhere. Mr. Verdream presented many letters on her behalf and asked Judge Conti to impose a “non-custodial” sentence.

But federal prosecutors say the guidelines don’t allow for probation and Ms. Miller’s calculated conduct warrants time behind bars. Assistant U.S. Attorney Greg Melucci said that Ms. Miller had numerous opportunities during her bankruptcy to set the record straight about her assets, yet chose to lie repeatedly.

Among his exhibits are emails and texts she sent showing her contempt for the court and her intent to hide income even after warnings. After being dressed down by U.S. Bankruptcy Judge Thomas Agresti in February 2013, for example, she sent an email to her accountant describing the judge using a derogatory term and complaining that he hated her because he was making her pay all of her creditors back at once.

Judge Agresti showed plenty of irritation at Ms. Miller as her schemes became apparent, Mr. Melucci said. At one hearing in 2012, he found out she hadn’t revealed her income from 2012 and had also struck TV show contracts without disclosing them in an amended bankruptcy plan. After she complained that she didn’t even know about the contracts, he’d had enough. “And she can shake her head and protest all she wants and go through her TV face, that’s not going to affect me, ma’am, and I’d prefer you stop it, OK?” the judge told her. “Let’s be a little stoic here. These are very serious problems you have, and a failure to disclose.”

Mr. Melucci also said her attempt to transport cash into the U.S. shows that she continued “her scheming ways” even after being caught hiding assets from bankruptcy. “It is apparent that Miller is not easily deterred by the threat of criminal prosecution,” he wrote, “even standing before a federal judge.” Judge Agresti discovered Ms. Miller’s fraud by chance. He said he was channel-surfing one night, came across her TV performances and realized she had more money than she was revealing in her Chapter 11 filings.

The U.S. Attorney’s office said she tried to hide about $755,000 from the bankruptcy trustee. In the other case, prosecutors said she did not report money that she transferred from Australia into the U.S. after trips there in 2014 to conduct dance instruction classes before large audiences. Mr. Melucci said she and her entourage brought back about $120,000 in cash tucked into Ziploc bags in amounts less than $10,000 and hidden in their luggage. Among the government’s exhibits is a photo of the cash bundles seized.

January 20, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (4)

Monday, January 16, 2017

SCOTUS to confront implication for immigration statute of Johnson vagueness ruling

On Tuesday, the Supreme Court is scheduled to hear oral argument in Lynch v. Dimaya, which comes to the Justices as part of the aftermath of their big 2015 Armed Career Criminal Act vagueness ruling in Johnson v. United States.  Over at SCOTUSblog here, Kevin Johnson has this preview of the case. It starts this way:

The U.S government targets noncitizens with criminal convictions for removal from the United States.  These efforts have allowed President Barack Obama’s administration to deport approximately 2.5 million noncitizens during Obama’s eight years in office, more than any other president in American history.  On several recent occasions, the Supreme Court has found that the administration went too far and has set aside orders of removal of criminal offenders that it has found to be inconsistent with the immigration statute. For example, in Mellouli v. Lynch, in 2015, the court held that a state misdemeanor conviction for possession of drug paraphernalia did not justify removal.  In 2013, in Moncrieffe v. Holder, the justices found that a lawful permanent resident’s conviction for possession of a small amount of marijuana — now legal in many states — did not mandate removal.  Next week, the Supreme Court will hear oral argument in Lynch v. Dimaya, another criminal-removal case, but one with potentially far-reaching constitutional implications.

A noncitizen, including a lawful permanent resident, who is convicted of an “aggravated felony” is subject to mandatory removal.  The Immigration and Nationality Act defines “aggravated felonies” expansively to include crimes, including some misdemeanors, that run the gamut from murder to virtually any drug and firearm offense.  That definition incorporates 18 U.S.C. §16(b), known as the “residual clause,” which defines a “crime of violence” to encompass “any … offense that is a felony and that, by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.”

In 2015, in Johnson v. United States, the court, in an opinion by Justice Antonin Scalia, struck down as unconstitutionally vague the Armed Career Criminal Act’s definition of “violent felony,” which included crimes that “involve conduct that presents a serious potential risk of physical injury to another.”  The Johnson court held that the statutory language “fail[ed] to give ordinary people fair notice of the conduct it punishes, [and was] so standardless that it invite[d] arbitrary enforcement.”

Born in the Philippines, James Garcia Dimaya has lived in the United States as a lawful permanent resident since 1992.  Based on Dimaya’s two California burglary convictions, the U.S. government sought to remove him from the United States.  Finding that burglary was a “crime of violence” under Section 16(b)’s residual clause and thus an “aggravated felony,” an immigration judge ordered Dimaya removed.  The Board of Immigration Appeals agreed.  In a rare decision finding a removal provision of the U.S. immigration laws to be unconstitutional, the U.S. Court of Appeals for the 9th Circuit concluded that Section 16(b) was void for vagueness.

January 16, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (5)

Sunday, January 15, 2017

Nebraska Supreme Court decides "undocumented status" can be proper, but not conclusive, sentencing factor when deciding on probation sentence

As reported in this local article, headlined "Immigration status can be used to help decide sentencing, Nebraska Supreme Court says," the top court in the Cornhusker State handed down an interesting ruling late last week. Here is the effective press summary of the decision:

A person’s immigration status can be considered when deciding if someone should be sentenced to probation rather than jail, though it cannot be the sole factor, the Nebraska Supreme Court ruled Friday. It was the first time the state’s highest court has weighed in on the issue of whether criminal defendants can be denied probation solely because they are in the country illegally.

Jose Cerritos-Valdez had appealed after being sentenced to 230 days in jail and a $500 fine for two misdemeanors, attempted possession of a controlled substance and driving under the influence. His driving privileges were revoked for one year.

During sentencing, Sarpy County District Judge David Arterburn expressed reluctance to sentence Cerritos-Valdez to probation. One condition of probation is to obey all laws, and to do that, the judge said, would require Cerritos-Valdez to leave the country, because he was in the United States illegally. Arterburn also said he’d like to get some guidance on the issue from a higher court.

The Supreme Court’s ruling, written by Judge Stephanie Stacy, said that while this is an unsettled area of law, a consensus has formed in other courts that defendants cannot be denied probation solely because they are in the country illegally.

The full ruling in Nebraska v. Cerritos-Valdez is available at this link, and here is the heart of the court's nuanced analysis (with footnotes/cites removed):

This case presents the narrow question of whether a defendant’s undocumented status is a relevant consideration when determining whether to grant or deny probation.  We have not previously considered this question, but other courts have.  

While the law in this area is not well settled, a consensus has developed that it is impermissible for a sentencing court to deny probation based solely on a defendant’s undocumented status.  Beyond that broad proposition, courts differ on when, or for what purpose, a sentencing judge may properly consider a defendant’s undocumented status when deciding whether to impose probation.

Generally, in discussing whether it was proper to consider a defendant’s undocumented status in connection with deciding whether to impose a sentence of probation, other courts have focused on whether the defendant’s status implicated other relevant sentencing considerations.  For instance, some courts have held it is appropriate to consider the effect of a defendant’s undocumented status on his or her ability or willingness to comply with conditions of probation.  Other courts have reasoned that a defendant’s undocumented status or a history of repeated illegal reentry into the U.S. may demonstrate an “unwillingness to conform his or her conduct to the conditions of probation” or show that a probation sentence would not “be at all effective” for that defendant.  Still others have held that the undocumented status of defendants may be considered as it relates to their criminal history.  At least one court has noted that a defendant’s undocumented status is properly considered as it relates to the defendant’s employment history or legal employability.  And we note that in some instances, defendants have specifically asked the sentencing court to consider their undocumented status, arguing it would be error not to consider it.

Based on the foregoing, we agree that a defendant’s status as an undocumented immigrant cannot be the sole factor on which a court relies when determining whether to grant or deny probation; however, a sentencing court need not ignore a defendant’s undocumented status.  When deciding whether to grant probation, a defendant’s undocumented status may properly be considered by a sentencing court as one of many factors so long as it is either relevant to the offense for which sentence is being imposed, relevant to consideration of any of the required sentencing factors under Nebraska law, or relevant to the defendant’s ability or willingness to comply with recommended probation conditions.

January 15, 2017 in Criminal Sentences Alternatives, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (0)

Friday, January 13, 2017

New ACLU report details unique harms of solitary confinement for prisoners with physical disabilities

The American Civil Liberties Union has released this big report to spotlight particular problems for a particular prison population subject to solitary confinement.  The ACLU report is titled "Caged In: Solitary Confinement's Devastating Harm on Prisoner's With Physical Disabilities," and here is how the report is summarized at this webpage:

This report provides a first-ever national ACLU account of the suffering prisoners with physical disabilities experience in solitary confinement.  It spotlights the dangers for blind people, Deaf people, people who are unable to walk without assistance, and people with other physical disabilities who are being held in small cells for 22 hours a day or longer, for days, months, and even years.  Solitary confinement is a punishing environment that endangers the well-being of people with physical disabilities and often violates the Americans with Disabilities Act.  The report’s revelations about the particular harms of solitary on people with physical disabilities shows the urgent need for far better accounting of the problems they face and the development of solutions to those problems.

January 13, 2017 in Offender Characteristics, Prisons and prisoners | Permalink | Comments (1)

Thursday, January 12, 2017

New report spotlights five Florida counties often condemning to death murderers have mental impairments

A few weeks ago, as noted in this prior post, Harvard Law School's Fair Punishment Project (FPP) released a report detailing and lamenting the composition of Oregon's death row under the title "Oregon’s Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments."  Today, FPP has this new report bringing a similar analysis and criticism to a portion of a different state.  This new report is titled "Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments in Five Florida Counties,"  and here are excerpts from the introduction:

The Florida Supreme Court recently held that the state’s capital punishment statute is unconstitutional. Approximately 380 people sentenced to death under the now-invalidated sentencing scheme remain on the death row. While litigation is still pending over whether the decision applies to all Florida death sentences, the Court has clarified that the approximately 150 people who were convicted after the Ring v. Arizona decision in 2002 must have their sentences reconsidered. Roughly one-third of these individuals convicted since 2002 come from just five of Florida’s 67 counties: Duval, Miami-Dade, Hillsborough, Orange, and Pinellas.

This report examines the 48 invalidated death sentences from these five Florida counties. We examined legal pleadings and opinions, trial testimony, and media reports, and consulted with several legal experts in Florida who are familiar with the individuals on death row.

Our research revealed that 63 percent of these individuals exhibit signs of serious mental illness or intellectual impairment, endured devastatingly severe childhood trauma, or were not old enough to legally purchase alcohol at the time the offense occurred. The pervasiveness of these crippling impairments among Florida’s death row population is significant when evaluating whether the death penalty was the appropriate sentence. Although all murders are gruesome and deserving of serious sanction, the Constitution limits the death penalty to the most heinous murders. Even then, the Constitution and established Supreme Court doctrine have limited application of the death penalty to adults who exhibits mental and emotional functioning that is equal to or exceeds that of the typically developed adult. So, for example, the U.S. Supreme Court has held that, regardless of the severity of the crime, the death penalty cannot be imposed upon a juvenile or an intellectually disabled person, both classes of individuals who suffer from impaired mental and emotional capacity relative to typically developed adults. To do otherwise would be so disproportionate as to violate his or her “inherent dignity as a human being.”

January 12, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Sunday, January 08, 2017

"Mending the Federal Sentencing Guidelines Approach to Consideration of Juvenile Status"

The title of this post is the title of this notable new Harvard Law Review note. It gets started this way:

In a series of recent cases, the Supreme Court has reaffirmed the profound significance of a juvenile offender’s age in sentencing, seemingly rendering youth status a mandatory sentencing consideration as a constitutional matter — in at least some cases — and under the statutory sentencing directive.  Still, as a matter of policy, the Federal Sentencing Guidelines (Guidelines) — the required starting point for sentencing courts in federal cases and the benchmark for assessing the reasonableness of a sentence for appellate courts — discourage consideration of an offender’s youth and related circumstances in determining whether to depart from the recommended statutory sentencing range.  Though after United States v. Booker the Guidelines have been advisory only, the Court has recognized that even advisory Guidelines can, at times, exert an impermissible anchoring effect on sentencing courts.

This Note argues that Congress and the United States Sentencing Commission (Commission) should take seriously both the letter and spirit of the Court’s recent juveniles-are-different cases, which favor a return to a rehabilitative approach to young offenders.  Congress should address apparent conflicts between its statutory sentencing schemes and these recent cases by expanding the range of sentencing options for juvenile offenders convicted in federal court, and the Commission should promulgate new rules regarding calculation of sentences for juveniles convicted as adults in federal court.  Further, until such rules are promulgated, this Note contends that appellate courts should hesitate to presume reasonable within-Guideline sentences for juvenile offenders absent evidence that a sentencing court has considered age.

This Note proceeds in four parts.  Part I provides a brief history of the Guidelines, from development through the Court’s attempts to clarify their place post Booker. Part II describes the history of the treatment of juvenile offenders in federal courts and details the Court’s recent juveniles-are-different sentencing jurisprudence.  Part III argues that, for various reasons of law and policy, both Congress and the Commission should offer new guidance on how courts should approach the process of sentencing juvenile offenders convicted as adults.  Finally, Part IV recommends statutory changes and amendments to the Guidelines.

January 8, 2017 in Federal Sentencing Guidelines, Offender Characteristics, Procedure and Proof at Sentencing, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (1)

Wednesday, January 04, 2017

Louisiana public defenders lacking resources needed to adequately prepare for Miller resentencings in old juve LWOP cases

This interesting local article highlights the economic challenges posed for some local courts and lawyers when now having to implement retroactively the Supreme Court's Miller ruling precluding mandatory LWOP sentences for juvenile murderers.  The article is headlined "'Unfunded mandate' of individualized sentencing hearings for some juveniles causing headaches for public defenders," and here are excerpts:

A 2012 U.S. Supreme Court decision ruled out laws mandating life without parole for juveniles as unconstitutional, and a subsequent decision last year made that ruling retroactive. Now, those juveniles are required to get what’s called “individualized sentencing hearings” before such a harsh sentence can be handed down, said Carol Kolinchak, a compliance officer for the Louisiana Public Defender Board.

And those hearings take resources. “You have to investigate and develop evidence (about) the youth and the circumstances surrounding the crime,” Kolinchak told [Judge Arthur] Hunter, adding that it is the defense’s “ethical obligation” to make sure each juvenile offender gets a proper investigation into their backgrounds prior to their hearing.

But, she added, the mandate isn’t cheap, and it’s also unfunded. At a cost of $60,000 to $75,000 a client, both [Orleans Parish Chief Public Defender Derwyn] Bunton and State Public Defender Jay Dixon said they were at a loss for how to properly prepare for each client’s sentencing hearing.

According to Kolinchak, there are nearly 300 juveniles eligible for such individualized hearings throughout the state. “The question in Louisiana is the same as it is nationally, which is that it has really been an unfunded mandate,” she said. “It places burdens on defense counsel with no discussion of funding.”

The issue came up in Hunter’s courtroom Tuesday in the case of Joseph Morgan, a defendant convicted in 2015 of second-degree murder in the death of Gervais "Gee" Nicholas, a teenager gunned down in 2008 outside the Chat Club at Tulane Avenue and South Lopez Street. Morgan was 16 at the time of the shooting, but prosecutors are nevertheless seeking life without parole.

Defense attorney Tom Shlosman, who is representing Morgan pro bono, told the judge he doesn't have the resources for the elaborate proceedings now required in Morgan's case. The other officials who testified before Hunter were brought in to help bolster the broader case that more money needs to be set aside statewide to handle these types of defendants....

In New Orleans, the question is how to proceed with about 72 cases that now qualify for a so-called “Miller hearing,” Kolinchak said. On Tuesday, both Bunton and Dixon said they didn’t anticipate being able to pay for those hearings, at least for indigent clients, anytime soon, because there’s no money available to properly investigate possible mitigating circumstances for those clients.

Dixon said the state public defender’s budget has been “stagnant” at about $33 million for the past several years. Moreover, he said, the threat of a 5 percent cut to his budget looms ahead, a move he said would be “devastating” for both death penalty cases and juvenile cases like Morgan’s. That’s because Dixon's office is required to distribute about 65 percent of its budget to district defenders' offices throughout the parishes, and so the cuts would have to come from the more complex pool of cases that his office contracts out to other law firms.

Bunton said he has to stretch an $8 million budget to cover nearly 22,000 cases a year — a situation that he said leaves him no room for taking on new work like individualized sentencing hearings for indigent juveniles....

“We don’t have an answer. This is the kind of thing that funding or lack of funding creates,” Dixon said. “You’re talking about basically a juggling act with a lack of funds. And we’re both in that trick box. We do not have an answer for that.”

January 4, 2017 in Assessing Miller and its aftermath, Offender Characteristics, Procedure and Proof at Sentencing, Sentences Reconsidered, Who Sentences? | Permalink | Comments (2)

Monday, January 02, 2017

Understanding why Dylann Roof will not present penalty phase evidence at his capital trial

Last week in this post I noted the news that Dylann Roof, at a hearing before the penalty phase of his capital trial, told the district judge that "he doesn't plan to call any witnesses or present evidence to ask a jury to spare his life." This new New York Times article, headlined, "Dylann Roof Himself Rejects Best Defense Against Execution," provides some explanatory backstory.  Here is how the lengthy piece begins:

Twenty-two pages into the hand-scribbled journal found in Dylann S. Roof’s car — after the assertions of black inferiority, the lamentations over white powerlessness, the longing for a race war — comes an incongruous declaration.

“I want state that I am morally opposed to psychology,” wrote the young white supremacist who would murder nine black worshipers at Emanuel A.M.E. Church in Charleston, S.C., in June 2015. “It is a Jewish invention, and does nothing but invent diseases and tell people they have problems when they dont.”

Mr. Roof, who plans to represent himself when the penalty phase of his federal capital trial begins on Tuesday, apparently is devoted enough to that proposition (or delusion, as some maintain) to stake his life on it. Although a defense based on his psychological capacity might be his best opportunity to avoid execution, he seems steadfastly committed to preventing any public examination of his mental state or background.

“I will not be calling mental health experts or presenting mental health evidence,” he wrote to Judge Richard M. Gergel of Federal District Court on Dec. 16, a day after a jury took only two hours to find him guilty of 33 counts, including hate crimes resulting in death, obstruction of religion and firearms violations. At a hearing on Wednesday, Mr. Roof told the judge that he planned to make an opening statement but not call witnesses or present evidence on his behalf.

The testimony presented by prosecutors during the guilt phase of Mr. Roof’s trial detailed with gruesome precision how he had plotted and executed the massacre during a Wednesday night Bible study in the church’s fellowship hall. It was less satisfying in revealing why he had done it. With his choice to sideline his legal team and represent himself, the second phase — when the same jury of nine whites and three blacks will decide whether to sentence him to death or to life in prison — may prove little different.

Death penalty experts said it was exceedingly rare for capital defendants to represent themselves after allowing lawyers to handle the initial part of a case. Mr. Roof, who also faces a death penalty trial in state court, has not publicly explained his reasoning. But legal filings strongly suggest a split with his court-appointed defenders about whether to argue that his rampage resulted from mental illness.

January 2, 2017 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing, Who Sentences? | Permalink | Comments (3)

Friday, December 30, 2016

Third Circuit reverses (short) sentence based in part on "bare arrest record" ... JAN 3, 2017 UPDATE: Opinion VACATED at "the direction of the Court" ... AND on Jand 9, 2017 the opinion returns

A number of helpful readers made sure I did not miss the significant sentencing opinion handed down by a Third Circuit panel in US v. Mateo-Medina, No. 15-2862 (3d Cir. Dec. 30, 2016) (available here).  Here is how the opinion starts:

Maximo Mateo-Medina appeals his sentence of twelve months plus one day imprisonment for illegally reentering the United States, in violation of 8 U.S.C. § 1326(a) and (b)(1). Although Mateo-Medina pled guilty to the offense, he now appeals the sentence, arguing that the sentencing court violated his Due Process Clause rights by impermissibly considering, among other things, arrests that did not result in convictions.  The Presentence Investigation Report (PSR) that disclosed those arrests did not contain any of the underlying conduct.  For the reasons set forth below, we agree and we will therefore vacate the sentence that was imposed and remand for resentencing.

The opinion includes citations to considerable research regarding "disparities in arrest rates," and it ultimately holds that the district court's sentencing decision amounted to plain error in a final section which notes that "calculating a person’s sentence based on crimes for which he or she was not convicted undoubtedly undermines the fairness, integrity, and public reputation of judicial proceedings."

UPDATE on January 3, 2017: Another helpful reader today sent me this link to a one-page Third Circuit order which reads: "At the direction of the Court, the opinion and judgment entered on December 30, 2016 are hereby VACATED." Hmmm.

ANOTHER UPDATE on January 9, 2017:  I was again alerted by a helpful reader that, as evidenced here,  US v. Mateo-Medina, No. 15-2862 is back and seemingly as good as ever.  Color me confused and curious, but ultimately pleased to learn that this seemingly sensible opinion remains good law.

December 30, 2016 in Booker in the Circuits, Offender Characteristics, Procedure and Proof at Sentencing, Race, Class, and Gender, Sentences Reconsidered | Permalink | Comments (1)

Saturday, December 24, 2016

Louisiana appeals court find LWOP sentence unconstitutionally excessive for fourth minor offense

As reported in this lengthy local article, headlined "Appeals court vacates 'unconscionable' life sentence for New Orleans man over theft of $15 from 'bait vehicle'," this past week brought a notable state constitutional ruling from the Louisiana Fourth Circuit Court of Appeal. Here are the basics from the press report:

Walter Johnson was walking down a street in Uptown New Orleans a week before Thanksgiving in 2013 when he noticed a Jeep Cherokee with the driver's side window down.  He glanced inside and saw a laptop and $15 in cash -- a $10 bill and a $5. Johnson snatched the bills.  He left the computer.

As it turns out, the Jeep was a law enforcement "bait vehicle," and Johnson was the catch of the day.  He was found guilty of simple burglary and illegal possession of stolen things at a trial in April 2015, and Orleans Parish District Attorney Leon Cannizzaro's office promptly invoked the state's habitual-offender law.

Johnson, who had prior convictions for simple burglary, heroin possession and cocaine distribution, was deemed a four-time felon.  Criminal District Court Judge Karen Herman sentenced him in October 2015 to a mandatory life prison term with no parole.

But on Wednesday, an appeals court panel threw out Johnson's life sentence, finding his street heist "shockingly minor in nature," the amount "extraordinary in its triviality" and Johnson's life sentence an "unconscionable" punishment that "shocks our sense of justice."  The appeals court sent the case back to Herman, telling her to resentence Johnson "to a term that is not unconstitutionally excessive."

The 10-page opinion, written by 4th Circuit Court of Appeal Judge Paul Bonin, marks the latest bid to limit the discretion that state law grants prosecutors to ratchet up sentences for low-level drug offenders and other nonviolent criminals with multiple convictions.

Judges have little control over such decisions, and the Louisiana Supreme Court has been loath to step on the Legislature's toes by overriding one of the nation's stiffest habitual-offender laws.  The state's high court has ruled that departures below the law's mandatory minimum sentences must be limited to "exceedingly rare" cases.

But occasionally it has seen fit to do so. Last year, for instance, the Supreme Court found a 30-year sentence "unconscionable" for Doreatha Mosby, a 73-year-old New Orleans woman who was found with a crack pipe tucked in her bra. Yet in the case of Bernard Noble, a father of seven who was found with the equivalent of two joints of marijuana, the court found he wasn't unusual enough to allow a sentence below the mandatory 13-year minimum under the statute.

Both of those cases, as well as Johnson's, came out of Orleans Parish, where Cannizzaro employs the habitual-offender law far more than any other prosecutor in the state. In 2015, Cannizzaro's office sent 154 convicts off to long prison sentences under the statute — almost one of every four offenders who were shipped to state prisons from New Orleans that year, according to state data analyzed by the Pew Charitable Trusts.

"You're dealing with different crime problems, socioeconomic levels, and you're dealing with different judges, different sentencing dispositions," Christopher Bowman, a spokesman for Cannizzaro's office, said in explaining the office's penchant for deploying the statute. "If you were dealing with a situation where a prosecutor feels probation is being given too freely, then the district attorney is required to use the habitual-offender law."

The full majority ruling in Louisiana v. Johnson is available at this link.  Notably, the rule s based on the Louisiana state constitutional provision prohibiting "cruel, excessive, or unusual punishment." La. Const. art. 1, § 20. Here is one notable passage (with some cites removed) from the Johnson decision: 

Despite its legality, however, we find the life-without-parole sentence imposed upon Mr. Johnson unconstitutionally excessive.  Mr. Johnson reached into the open window of a bait-vehicle and took fifteen dollars.  He is now condemned to die in prison for that crime.

We acknowledge that Mr. Johnson's life sentence, under the habitual offender law, is intended as punishment not only the current conviction, but all prior convictions as well.  Legitimate sentencing goals notwithstanding, Mr. Johnson's status as a fourth felony offender "cannot be considered in the abstract."  Solem, 463 U.S. at 296.  As previously noted, the trial judge found that all his prior felonies were for nonviolent crimes.  And the instant offense, the one which set in motion the habitual offender proceedings, is shockingly minor in nature.  No person was harmed, nor any property damaged.  Had Mr. Johnson taken the fifteen dollars but not by entry into a vehicle or other structure listed in the simple burglary statute, he would have been convicted of misdemeanor theft.

December 24, 2016 in Offender Characteristics, Offense Characteristics, Procedure and Proof at Sentencing, Scope of Imprisonment, Sentences Reconsidered, Who Sentences? | Permalink | Comments (4)

Reviewing the unique issues and challenges for sentencing ISIS sympathizers

A helpful colleague made sure I did not miss this interesting new Wall Street Journal article headlined "ISIS Sentences Pose Challenge for Judges." The subheadline highlights the main theme of the piece, "U.S. judges grapple with how to punish young Islamic State sympathizers who could become more dangerous after decades in prison," and here are excerpts:

Federal judges this year faced the unprecedented challenge of sentencing dozens of Islamic State supporters across the country, with punishments ranging from no prison time to decades behind bars.

In Minnesota, 20-year-old Khaalid Abdulkadir received three years probation for tweeting threats to kill federal law-enforcement officers after one of his friends had been arrested for providing support to Islamic State. In Ohio, 22-year-old Christopher Cornell received 30 years in prison for plotting to attack the U.S. Capitol in Washington on the terrorist group’s behalf.

The wide range reflects the difficult question at sentencing in many of these cases: Should judges give young Americans who support Islamic State a chance to turn their lives around, or a lengthy prison sentence to ensure public safety?

For the most part, judges are choosing to be cautious, although some have begun considering alternatives to prison. Of the 39 Islamic State defendants who have been sentenced so far, the average prison sentence has been 13 years, according to Fordham University’s Center on National Security.

Since 2014, more than 110 suspected Islamic State sympathizers have been prosecuted in the U.S. for a broad array of criminal activities, including making false statements to the government and traveling overseas to fight with terrorists. Roughly half of these cases have resulted in convictions, while the other half are pending, according to Fordham. Several sentencings are scheduled to happen next year, including one in Brooklyn, N.Y., for Tairod Pugh, who was the first Islamic State sympathizer in the U.S. to be convicted at trial.

No Islamic State supporter in the U.S. has received a life sentence yet. Most defendants are arrested before they commit violence and charged with providing “material support” to terrorists, which carries a maximum 20-year sentence....

More than a quarter of the sentences have occurred in Minneapolis, whose large Somali population has been a target in recent years for terrorist recruitment. In an unprecedented move, one federal judge there, Michael J. Davis, last summer asked six defendants to undergo an evaluation before sentencing to see if they could be good candidates for a “deradicalization” program.

Judge Davis ultimately allowed only one defendant, 20-year-old Abdullahi Yusuf, to be released to a halfway house, where he could receive counseling and family group therapy. For another defendant, 22-year-old Guled Omar, who was convicted at trial of conspiring to commit murder in Syria, Judge Davis imposed 35 years in prison, the harshest sentence so far in an Islamic State case.

The deradicalization effort has caught the attention of judges around the country. In Anaheim, Calif., a federal judge in October raised the possibility of assigning such a program to 26-year-old Muhanad Badawi, who was convicted at trial for helping a friend who wanted to join Islamic State overseas. Mr. Badawi ultimately received 30 years in prison.

Most Islamic State defendants are between the ages of 18 and 26 at the time of their arrest, which means many of them don’t have a criminal history and could become more dangerous after decades in prison, some lawyers say. On average, Islamic State supporters under the age of 21 have been receiving lighter sentences, according to Fordham.

Still, most judges tend to impose the harshest sentence possible under the law for terrorist defendants. Terrorism, unlike other types of violent offenses, is a crime in which law-enforcement officials feel there can be no room for error. No judge wants to be the one who gave a lenient sentence to someone who ends up committing a terrorist attack.

December 24, 2016 in Offender Characteristics, Offense Characteristics, Purposes of Punishment and Sentencing, Who Sentences? | Permalink | Comments (2)

Thursday, December 22, 2016

Split Ohio Supreme Court concludes Graham violated by term-of-years juve sentence that exceeds life expectancy

The holiday season is often a time that brings some interesting sentencing ruling, and this year the jurisprudential present under my tree comes from my own Ohio Supreme Court in Ohio v. Moore, No. 2016-Ohio-8288 (Ohio S. Ct. Dec. 22, 2016) (available here). Here is how the lengthy majority opinion in Moore gets started and concludes:

We decide in this case whether the United States Supreme Court’s holding in Graham v. Florida, 560 U.S. 48, 130 S.Ct. 2011, 176 L.Ed.2d 825 (2010), prohibiting the imposition of sentences of life imprisonment without parole on juvenile nonhomicide offenders also prohibits the imposition of a term-of-years prison sentence that exceeds the offender’s life expectancy on a juvenile nonhomicide offender. We hold that pursuant to Graham, a term-of-years prison sentence that exceeds a defendant’s life expectancy violates the Eighth Amendment to the United States Constitution when it is imposed on a juvenile nonhomicide offender.

We hold in this case that Graham’s categorical prohibition of sentences of life imprisonment without the possibility of parole for juveniles who commit nonhomicide crimes applies to juvenile nonhomicide offenders who are sentenced to term-of-years sentences that exceed their life expectancies. The court of appeals abused its discretion in failing to grant Moore’s application for reconsideration. The 112-year sentence the trial court imposed on Moore violates the Eighth Amendment’s prohibition against cruel and unusual punishments. We reverse the judgment of the court of appeals and vacate Moore’s sentence, and we remand the cause to the trial court for resentencing in conformity with Graham.

Interestingly, Chief Justice Maureen O'Connor appears to have been the key swing vote here on a court that split 4-3, and her lengthy concurring opinion concludes this way:

Graham is one of the most momentous decisions in American juvenile law. Given its significance, the stated intention of the sentencing judge in this case, the de facto life sentence he imposed, and the curtness with which the court of appeals denied Moore’s application to reconsider his sentence in light of Graham, I conclude that the appellate court abused its discretion in refusing to consider Moore’s claim. The court was not bound to accept his arguments, but it was bound to consider them more thoughtfully after allowing the application for delayed reconsideration.

I concur fully in the majority opinion, which addresses the significant constitutional question that is properly before us and which holds that the court of appeals abused its discretion in failing to recognize that extraordinary circumstances were presented by Moore’s application, i.e., the unconstitutional imposition of a lengthy term-of-years sentence on a juvenile offender.

December 22, 2016 in Assessing Graham and its aftermath, Offender Characteristics, Sentences Reconsidered, Who Sentences? | Permalink | Comments (3)

Wednesday, December 21, 2016

"The American Bar Association's Criminal Justice Mental Health Standards: Revisions for the Twenty-First Century"

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

This article is an examination of the American Bar Association’s newly adopted Criminal Justice Mental Health Standards, organized around three goals that permeate the Standards. The first goal is ensuring that people with mental disabilities who encounter the criminal justice system are treated humanely and fairly.  Achieving this goal requires a delicate balance between providing the treatment necessary to ensure the safety and health of these individuals and avoiding interventions that are not legally necessary.  A second goal is to promote reliable case outcomes.  This goal requires substantive doctrines that recognize the mitigating impact of mental disabilities and an adequate evaluation system that permits clinicians to gather the information they need to address legal questions; treatment is an important element of this goal as well when necessary to enable a defendant's meaningful participation in the legal proceedings.  The third goal is to honor the autonomy of people with mental disabilities by ensuring their desires and decisions are accorded appropriate respect by their own lawyers and the rest of the criminal justice system.  The Standards adopt the position that competent defendants should have the power not only to participate but also to control the most important aspects of their cases.

December 21, 2016 in Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (1)

Tuesday, December 20, 2016

New report spotlights that majority of condemned Oregon murderers have mental impairments

In this post earlier this year, I noted the initiative emerging from Harvard Law School's Charles Hamilton Houston for Race & Justice and its Criminal Justice Institute called the Fair Punishment Project (FPP).  And, as regular readers now know, FPP is now regularly producing notable reports and research on the administration of various sentencing systems in various parts of the nation.  The latest report from FPP is titled "Oregon’s Death Penalty Disproportionately Used Against Persons with Significant Mental Impairments," and here are parts of the start and heart of the document:

Oregon retains capital punishment mostly as an exorbitantly expensive legal fiction. In practice, as U.S. Supreme Court Justice Anthony Kennedy recently noted, the State falls on the abolitionist “side of the ledger” because “Oregon has suspended the death penalty and executed only two individuals in the past 40 years.”  More revealing still: Over the past 10 years, Oregon juries have imposed an average of just one death sentence per year, which translates into less than 1.25% of homicides, a rate far lower than that which prevailed nationally in 1972 when U.S. Supreme Court Justice Byron White concluded that the infrequent use of the death penalty meant that the punishment had “ceas[ed] to be a credible deterrent or measurably to contribute to any other end of punishment in the criminal justice system.”  By all functional measures, Oregonians have abandoned the death penalty.

And yet, 35 condemned inmates remain on Oregon’s death row. What do we know about those people, and about the quality of justice that resulted in their death sentences?  This report examines the cases of the condemned men and women in Oregon to see how they ended up there, and what patterns, if any, emerged.  We examined legal pleadings and opinions, trial testimony, and media reports, and consulted with several legal experts in Oregon who are familiar with the individuals on death row.

Here’s what we found: In Oregon, two-thirds of death row inmates possess signs of serious mental illness or intellectual impairment, endured devastatingly severe childhood trauma, or were not old enough to legally purchase alcohol at the time the offense occurred.  The pervasiveness of these crippling impairments among Oregon’s death row population is important because though all murders are gruesome and deserving of serious sanction, the Constitution limits the death penalty to the most heinous murders; and even then only when the person who commits the crime is someone who appears to be more culpable than the typically developing adult....

Our research indicates that approximately one-quarter of individuals on Oregon’s death row may have some form of intellectual disability or brain damage. Nine of the 35 (26%) presented evidence of significantly impaired cognitive functioning as evidenced by low IQ scores, frontal lobe damage, and fetal alcohol syndrome....

Approximately one out of every four individuals on Oregon’s death row exhibits symptoms of mental illness, or has a confirmed diagnosis. Some exhibited signs of psychotic disorders with delusions and hallucinations at the time of the crime, one had been in a state run treatment program for individuals with mental illness, and another had signs of post-traumatic stress disorder. Furthermore, the vast majority of the individuals exhibiting signs of mental illness, also presented evidence of secondary impairments such as intellectual disability, extreme childhood trauma, and youthfulness....

[A]pproximately one-third of Oregon’s death row prisoners suffered some form of severe childhood or emotional trauma. One individual was born in prison, another suffered childhood sexual abuse, and several of the individuals were in and out of the foster care system. In many cases, this trauma led to, or was compounded by, other disabilities, such as fetal alcohol syndrome. 

December 20, 2016 in Death Penalty Reforms, Offender Characteristics, Procedure and Proof at Sentencing | Permalink | Comments (6)